Wednesday, March 2, 2011

NVIDIA class action settlement: Milberg declares war on its clients

If there was ever any question of whether Milberg was going to side with its putative clients or its putative adversary, we now have an answer from this Litigation Daily story (behind a subscription wall, but now available for free):
Lead class counsel Jeff Westerman of Milberg said in a statement that Frank is "working against the interests of consumers who deserve to get their computers replaced."

"This settlement is providing class members with repairs and replacement computers, and thousands have already submitted claims," Westerman said in the statement. "When it comes to the replacement computers, we hired an independent expert who confirmed that we were adhering to the terms of the settlement. [Frank's] claims to the contrary reveal an anti-consumer agenda aimed at stopping the settlement from proceeding."
Three obvious points:

1. Millions of HP owners were subject to the settlement; "thousands have already submitted claims." Or, in other words, less than 1% of the class has submitted claims. And that's aside from the fact that "submitting a claim" doesn't indicate approval of the settlement administration, just an understanding that half a loaf is better than none. All of my clients have "submitted claims"; none are happy with the settlement.

2. In case it wasn't clear from my briefs, I fully support "consumers [getting] their computers replaced." One can readily look at my proposed order, and see that I am not trying to "stop[] the settlement from proceeding." There is already an existing court order for the settlement to proceed, and no one has moved to stay that order.

3. I've heard of spin, but it's remarkable that demanding that consumers get what their attorneys promised them in a class action settlement and notice is considered "an anti-consumer agenda." To review: it's the tort reform advocate who has filed papers with the court asking for consumers to get what they were promised; it's the trial lawyers who have announced their intent to file papers with the Court siding with the defendant and alleged wrongdoer insisting that the consumers—their clients—get less than what the Court has already ordered.

Leading tech blog Engadget caught wind of our motion:
Ted Frank of the Center for Class Action Fairness says that NVIDIA has no business passing off cheap laptops, and we think he might have a case -- after all, the judge ordered that NVIDIA provide "a replacement computer of like or similar kind and equal or similar value," and it doesn't take a lawyer to see that the $400 [sic] Compaq Presario CQ56-115DX that the company's offering doesn't come close to compensating owners of faulty machines. We joked that you might be better off selling your old laptop for parts on eBay, and that might not be far from the truth.
So did leading law blog Above the Law.

Update: Court rules for NVIDIA. If you're a class member with questions about the case, and why your attorneys argued against your own recovery, you need to talk to your attorneys at Milberg; I cannot help you.

24 comments:

  1. I am with you on this and Milberg should be ashamed of themselves for doing that with their clients. I hope that others who are interested in taking Milberg's services will take due notice of how they can be ditched by them at the end. Milberg is just acting in their own interests by grabbing a good amount from NVIDIA and dumping their clients.

    ReplyDelete
  2. This is disgraceful. Shame on Milberg, it's US the consumers that wanted Ted Frank in the first place, he's helping us!

    ReplyDelete
  3. The Milberg group has already been paid 13 million dollars for attorneys’ fees and expenses, and $32,947.50 for their 5 plaintiffs, Todd Feinstein, Nathan DeBockler, Steven Nakash, Lance Waidzunas, and John Russo. At this point why would they want to spend any more time on this case, they already got paid and their clients that hired them received a settlement. Rosenthal & Co. are serving as the settlement administrator for the settlement and performing the settlement administration and other duties, so the Milberg group has already washed their hands of the case and no longer have to act like they care about anyone other than the clients that hired them. The Milberg group just had to present to the court that millions of people were affected by the faulty NVIDIA chips, now they don’t care if only on one person or one million people receives anything.

    With NVIDIA only having to offer the Compaq CQ-56-115DX to the affected members, they will not be paying the current retail price of $330. They will be allowed to purchase the thousands of computers at a wholesale cost that might be around $250. If NVIDIA had to offer different computers for each similar kind and value they would not be able to purchase in bulk at a discount.

    This is a breakdown of what it will take from me to modify the cheap replacement computer to get something close to what I have now. It will cost me $150 to get a battery that is comparable, $100 for a USB video output card that still will not be as good, $100 for a dual core CPU, $60 for the lightscribe DVD burner, $10 for a USB bluetooth dongle, $45 to upgrade the memory, $30 for a USB web cam, and $15 for a USB media reader. That is a total of $510 just for the parts, this does not include that cost that it will take to have a computer shop install it all, or the cost to replace all of my expresscard adapters to a comparable USB capable adapters. At this point I will have more USB devices then the available three slots, and will need to get a USB hub so that I can run them all at once.

    I will have to walk around to all of my meetings with clients holding a box of accessories, spend time setting it up with wires all over the place in front of all my clients, and I will be hoping that it all works right when I plug each item in.

    ReplyDelete
  4. I purchased my latop for everything it had to offer: processing power, memory, and tablet features. I loved it for college lectures, but randomly my wireless stopped working.

    On the claim website it says
    "If you have an HP or Compaq notebook computer, you may be eligible to receive a replacement computer. A repair remedy is
    not available for HP/Compaq computers because replacement parts are not available."

    but in the response to your emergency filing, Millberg responded with
    "It should be noted that under the Settlement, if Class Member’s individual computers have specific features important to them, which are not suitable to a class wide replacement, they have always had the option to have their eligible notebook or tablet computers repairs and submit the claim for reimbursement…”

    So which one is it? Can I repair my HP tx1000 or not? Better yet, how can anyone obtain parts to fix my computer if you say these parts don't exist?

    I want a comarable tablet pc not a netbook. I don't see why I should suffer for their mistake.

    ReplyDelete
  5. Brett ~ EXCELLENT job breaking down the specifics!

    In terms of Westerman's point #1:
    It seems to me that there would be a difference between "submitting" a claim and "submitting" a computer. From my understanding, there is a good number of us who have submitted claims and yet are holding off on returning the machine until we see what happens with the replacement.

    Perhaps Mr. Westerman's statistic would be more appropriate if he could tell us how many HP claims have been submitted and approved, and then how many laptops have been received by the settlement company.

    And, Mr. Frank, in case you haven't been hearing it enough .... THANK YOU!!! I am impressed by what you have done; the time and depth of work that has been put into this at such short notice is truly mind-boggling. Thank you for trying to make things right so that justice can be served.

    ReplyDelete
  6. The settlement stated originally a CQ50, and when I looked up that model, the sku's were mostly dual core with a webcam (which is what my laptop had) and now they finalize on a different model that IS NOT comparable to mine. And also, the depreciation should technically be irrelevant because in my case I started having issues in month 13 - right after the warranty expired. And I haven't had use of the laptop AT ALL now for 9 months. First the wireless went out and I purchased a USB dongle and now the screen has been dead for 9 months.

    I am posting a comment here because I am pissed and don't know what else to do?

    I have already shipped my laptop back!

    Honestly, Nvidia and to a lesser extent, HP have really blown an opportunity here - they could have picked the most spec heavy $600 to $650 laptop with the latest tech and it would have built some serious brand loyalty, but this is BS.

    I hope we get what we should get - and this is not about getting my/our next laptop upgrade free. I have spent over 100 hours troubleshooting and now 9 months without a laptop, when under normal usage scenarios, I should have had production from my laptop all of this time - I can't put a price on the opportunity lost because I use my laptop for business and pleasure.

    So please, be persistent and I will do whatever I need to do.

    ReplyDelete
  7. I agree with Brett, Jacki, and Rod...

    I would rather have my defected laptop repaired then replaced by a laptop which does not have the same features and functionality. I do not understand why we are being punished for a defect which was out of our control. I have been talking with the HP support over the last 2 years trying to get my laptop fixed without incurring any additional costs. I received a lot of confusing information from the HP support about my laptop and how I should purchase a new since the shelf life is usually only 3 years.

    ReplyDelete
  8. Can the Engadget artical be used as evidence? I would think they would qualify as experts.

    ReplyDelete
  9. I got my letter today.

    There are three options here:
    There independent advisor committed gross fraud in taking any fees for this work. As it is incomplete.

    The Attorney is grossly negligent

    The Attorney is Grossly dishonest

    I was told to go to www.NIVDIASettlement.com/tx-selection.php and choose.
    Between a Compaq CQ56 and Asus EEE PC MT101-37EU
    Problem is the CQ56 is a model class and they vary widely..
    there is no place anywhere that one can find what an EEE PC MT101-37EU (YES 37EU) is? I can find the EU17 and EU 27 versions both which are using crippled Windows 7 Starter so key features of the EEE PC don't even work!!

    Is it even legal to present a client an offer while withholding key information need to give informed consent.

    Either the legal counsel in this had fraud committed against them and needs to file agains the advisor
    OR they are clearly using common fraud techinques used by the worst Internet Websites to do bait and switch.. which means they should be disbared...

    I already spent $1200 replacing my machine because I needed it for work. I might take the EEE PC if I had the spec.. but only a fool makes a legal choice without details and only an unethical attorney offers a choice like this to a client. I want to know what NVIDIA promised them to play ball. Will they be retained in a year by the big company after trying to hide the truth?

    I got my letter today.

    There are three options here:
    There independent advisor committed gross fraud in taking any fees for this work. As it is incomplete.

    The Attorney is grossly negligent

    The Attorney is Grossly dishonest

    I was told to go to www.NIVDIASettlement.com/tx-selection.php and choose.
    Between a Compaq CQ56 and Asus EEE PC MT101-37EU
    Problem is the CQ56 is a model class and they vary widely..
    there is no place anywhere that one can find what an EEE PC MT101-37EU (YES 37EU) is? I can find the EU17 and EU 27 versions both which are using crippled Windows 7 Starter so key features of the EEE PC don't even work!!

    Is it even legal to present a client an offer while withholding key information need to give informed consent.

    Either the legal counsel in this had fraud committed against them and needs to file agains the advisor
    OR they are clearly using common fraud techinques used by the worst Internet Websites to do bait and switch.. which means they should be disbared...

    I already spent $1200 replacing my machine because I needed it for work. I might take the EEE PC if I had the spec.. but only a fool makes a legal choice without details and only an unethical attorney offers a choice like this to a client. I want to know what NVIDIA promised them to play ball. Will they be retained in a year by the big company after trying to hide the truth?

    ReplyDelete
  10. This comment has been removed by the author.

    ReplyDelete
  11. XzibitX,
    What model and serial do you have? When I had filed, it did not make any difference if I selected “I have” or “I have not.” Since you have to provide all supporting documentation at the time of filing, I would say that no you would not be able to have it repaired at this time and still get reimbursed for it. The claims information also says, “You may be entitled to reimbursement of some of your costs,” it does not say that they will cover all of the costs.

    You said that you don’t want to settle for the replacement option, what features do you have now that you will be giving up for the replacement option?

    ReplyDelete
  12. This comment has been removed by the author.

    ReplyDelete
  13. Too bad they wouldn't extend the filing date for those that found out about this "settlement" late and were trying to get their units fixed but not able to get the bill in time to meet the deadline. I will never, ever buy another HP product as long as I live...not even HP paper. I've had nothing but trouble from both a dv92xx and now a bricked dv95xx whose GPU was repaired with new motherboard, then failed again with two hard drive failures and a fan failure.

    ReplyDelete
  14. Jeff, we are here to help you in any way possible. I'm an A+ Certified computer technician with 21 years experience and business owner within the technology field. I'm also one of the many here who are being pacified. It's sad to see corporate greed more rampant than ever. What were they thinking really? Did they think we'd be okay with this?

    ReplyDelete
  15. I think that your points are valid particularly that Milberg should be replacing defective HP branded computers with HP branded computers (not Compaqs).

    Like many others I'm only a member of the class because I believed I would get a "a replacement computer of like or similar kind and equal or similar value," and well after that... I have no choice but to remain in the class.

    HP owners should just be given a coupon from Milberg for HP.com, and be done with it.

    Because lets be honest people bought a HP PCs because of the HP brand and quality. Nobody expected these machines to fail as they have done when they came out, which is why we paid a premium, which is what makes this whole mess so sad.
    Heck I was even excited to have a Nvidia chip in my machine because then Nvidia meant ready for Windows Vista...and we know what a graphics hog that was we needed the power of Nvidia for that beast....and yeah the power was there unfortunately it eventually melts everything around it. The rubber melted from the bottom of my laptop the Windows COA is burnt brown.

    I believe that all HP owners should get a HP replacement or HP.com coupon. I don't blame HP for the failures... Look how many other system manufacturers are also affected, Dell, Apple, Sony... Nvidia is to blame.

    ReplyDelete
  16. My claim for repairs on a Dell D820 laptop was approved but I can't find any information with what the motherboard will be replaced. From the settlement papers it seems no warranties will be given. Does anybody have more info on the projected repairs?
    Thank you

    ReplyDelete
  17. It is so crazy that I just received the shipping information for my replacement and then proceeded to find out what type of laptop I would get in return for my HP DV2000. The main feature that I wanted on my new laptop was a webcam, which after searching online, it seems the Compaq replacment doesn't have. Not to mention the sd-card reader, light-scribe etc... I did feel at a lost even because of the lack of these features on the replacement. And when I saw that the replacement is only about $350, I definitely was like what! I paid almost $900 for my HP. So I'm happy to have investigated today, because if not, I would not have come upon this new twist to the story and wouldn't have had hope for real justice. Thanks Frank! And by the way... I've been trying to contact the 800 settlement administrator for about a week now and cannot get my call connected. Anyone else having this trouble?

    ReplyDelete
  18. OK, I missed the filing deadline. I tried filing 3 times in the first week it was available to file online but they seemed to be having some problems with the tx---. I left the country for work shortly thereafter. So, I returned from overseas on March 28, only to find that I missed the filing date. I didn't even know the filing would end so soon...2 months for 1.7 mil+ customers...that can't be right...?
    I was burned when I fell asleep next to my computer and it overheated (irony: I was searching for a solution to the lack of wireless and overheating problem) I contacted HP (they were "very sorry for the injury") and they fixed my computer "as a courtesy!" What a joke they are!!! Now, it's doing the same thing again, and now I find out I can't even get a crappy replacement!
    QUESTION: If I can't get a replacement computer and am stuck with this forever hot machine, can I at least sue for the burn? (which I wasn't going to sue for because I thought I'd at least get rid of the overly hot computer and get something that didn't cause 1st degree burns!) HP and Nvidia knew about the overheating issue before I was burned; it's apparent on both of their web forums, people complaining about their machine getting too hot. Yet, they never warned consumers to be careful. At the very least they could have given us a warning!

    ReplyDelete
  19. Pray for justice from Judge Ware's decision in favor of the Class. Milberg should be ashamed of their unethical treatment of the Class in going to bat for us on the proper remedy we receive for our large investment for a defective product. HP seems to have just washed their hands of any liability too.

    ReplyDelete
  20. I'm not sure what I’ll do with my laptop. Might just take it out and use it for target practice.
    I'm looking at the RAF or "Replacement Authorization Form" getting angrier the more I think about it.
    Horray! I've been approved to replace one piece of junk for another. It's a tossup. One doesn't work and the other would cost about $600 to update and still not get close to what my HP was before it died.
    I hope the judge will do what's right and enforce what I understood to be a replacement of like kind and value. I won't be surprised if he doesn't. I’m not surprised these creeps that made 13 million has since long disappeared, what do they care?
    We continue to lose more and more of everything from day to day, just another example of big money doing as they please at the expense of consumers.
    Anyway, I'll wait for a while to decide rather I'll send in my computer or not. While they “Strongly recommend that you send in your defective computer within 7 days of receiving the shipping instructions.” I can’t help thinking it’s only a rouge to get as many computers in as fast as they can before someone files another suit in an effort to make them do what they SHOULD be doing already.
    I suspect they could sell the working components out of my old computer to cover the cost of the piece of junk they want to send me. So I ask myself. “Do I want to send the P.O.C. to have it replaced with another P.O.C.? “ (Piece Of Crap)
    I choose to wait on the judge to enforce his OWN DAMN ruling, if not, I'll probably tear my own computer down, sell the parts or try to find someone to fix it.
    Sad our own judges can't make people abide by their very own ruling.

    ReplyDelete
  21. Anyone have an issue when the said laptop was recycled prior to the settlement? I tried sending the original hard drive as proof but they rejected my claim, which was originally accepted. Problem is, I recycled the laptop 2 years ago ... trying to be a good citizen and I get hosed ... anyone else having this issue, and what can I do about it?

    ReplyDelete
  22. Just saw this, the settlement link does not work anymore. Settlement Period is over? Anyway I can submit the claim now?

    ReplyDelete
  23. What a rip off. Lawyers get there's but we lose. Anyone up for a class action on the Lawyers?

    ReplyDelete