Monday, March 14, 2011

Reply brief filed in NVIDIA case

Our earlier post continues to update the docket, most notably with our reply brief filed today.

It's hard to believe that multiple millionaire lawyers from multiple law firms all asked the court to apply the wrong legal standard for deciding a dispute over a consent decree accidentally. I'll take it as a good sign that they didn't think they could win if the court applied the correct legal standard and that their only hope was to obfuscate. It is of some concern that lawyers think they can obfuscate like that and get away with it without getting sanctioned.

What is most remarkable is the shamelessness of the contrasting claims by NVIDIA and Milberg. When asking the court to disregard objections to the settlement, the settling parties argued that there would be hundreds of thousands of claims worth at least tens (and probably hundreds) of millions of dollars. (Milberg actually argued that there would be "exponentially" more than hundreds of thousands of claims, but I presume that was because they don't know what "exponentially" means rather than because they were arguing that there would be tens of billions of claims.)

But push has come to shove, and only 30 thousand class members have taken the preliminary steps of asking for relief—and the Settling Parties have the gall to argue that this response rate (which will correspond to less than $10 million of class benefit, less than the $13 million attorney fee) demonstrates the popularity of the settlement administration, because one couldn't reasonably expect any more claims than that. We didn't even ask for those numbers: NVIDIA shamelessly volunteered them as evidence of the success of the settlement.

This case is a poster child for why courts should not award attorneys' fees until after the claims period has ended. If we hadn't intervened in this case, no one would have ever disclosed that Milberg exaggerated class recovery twenty- to fifty-fold, and this would be recorded in some empirical study as evidence of attorneys generously restricting themselves to fees of less than 10% of class recovery, rather than 130% of class recovery.

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.


  1. Fight the good fight! Thank you for standing up for those who get walked on by corporations.

    Here's something that may be useful to look at:

    Bullet point 2: "Separately, NVIDIA plans to take a one-time charge from $150 million to $200 million against cost of revenue for the second quarter to cover anticipated warranty, repair, return, replacement and other costs and expenses, arising from a weak die/packaging material set in certain versions of its previous generation GPU and MCP products used in notebook systems. Certain notebook configurations with GPUs and MCPs manufactured with a certain die/packaging material set are failing in the field at higher than normal rates. To date, abnormal failure rates with systems other than certain notebook systems have not been seen. NVIDIA has initiated discussions with its supply chain regarding this material set issue and the Company will also seek to access insurance coverage for this matter."

  2. Wow Milberg really are getting away with a large chunk of change for not representing many clients.

    My guess is that many members of the class never signed up because they got rid of their malfunctioning machines 2 or 3 years ago, many of these machines had Windows Vista and well people didnt need much of an excuse to move on from that when their machines died just outside of warranty.
    Others may not have noticed this in their inboxes.
    Still it kinda makes you wonder why they object to replacing or fixing computers which were defective due to the Nvidia GPU with something equivalent to what was destroyed.

    Thanks for highlighting this case and taking it on.

  3. Makes you wonder what Nvidia and/or Milberg knew when they stated their would be hundreds of thousands of claims (or exponentially more than that!). Im assuming they had access to tools out that could have given them a more accurate estimate/indication of what the size would be.

    Of course if the settlement actually compensated members of the class fairly then I would have expected a few more people to actually send in a claim, but nothing approaching the estimates made.

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  7. I called the NVIDIA call center three times prior to the deadline date and was told three times that if I did not have a repair bill along with my claim, that I could NOT file a claim for reimbursement. The last call was 3/11/2011 and the representative was firm that I could only submit a claim by the deadline if I could get the shop to prebill me, just so long as I provided a bill at the time of filing.

    I had pretty much given up at that point. On 3/18/2011, I just talked to a claim center supervisor that is telling me now that I could've submitted my claim without providing a bill yet. But, when trying to do so on the online website, It kicked me out when I selected "I have not" had repairs done yet and only accepted the entry if I chose that "I had repaired" the unit, but then it asked for a repair date and I'm too honest to lie, so I backed out. I figured if I lied and there was a discrepancy, then it would jeopardize my chances of having the claim accepted. I talked to three NVIDIA call center representatives prior to the March 14th deadline and each one told me I could not submit a claim for reimbursement without submitting the bill. Something is fishy.

    I should have lied.

  8. ^^^^^^

    By "bill" I'm referring to proof of payment for any repairs. Apparently, I was misinformed.

  9. The "Millturd" lawyers have let greed take them by the hand like little children. Nvidia and HP were greedy both before and after this settlement. Shame on you all.

  10. What a mess,

    I havent heard back from the Settlement Administrators yet for my PC, maybe since I submitted last minute theyre taking the time to approve or deny my claim.

    Now the interesting this is that in the first statement on the auto generated PDF declaration is stating what symptom(s) my system currently "IS" experiencing.

    However the question 4 states "has experienced" (which would mean before and after the HP repair)... given that HP repaired my PC once and returned it to me before it started re-exhibiting intermittent symptoms sometime later.
    Which basically means that the two statements dont really add up for me. The question I answered in 4 is correct and true.
    But since the "claim" section refers to 4, but is worded differently that is a false statement. One I never made, it was not on the website in the e-form I completed.

    The claim declaration should state:

    "I request replacement of my eligible HP notebook computer identified in the Declaration below because it is(OR HAS) experiencing the
    symptom(s) checked in the Declaration below."

    In other words even the claims form HP website was badly worded, shoddy piece of work with little consistency between pages.

    Also I have no idea what the repair HP did consisted of, it was a warranty repair for all I know they just changed the BIOS algorithm and switched out a Hard Drive, so Im not sure if this in warranty repair by the OEM would invalidate my claim.

    What this means I hope is that the judge will make sure that someone is incharge of reviewing claims such as XzibitX that may be denied due to the sloppy nature of the claims website.

    Luckily I took screenshots of what I entered on the websites claim form which was true information, however the PDF that was generated later just did not match the wording of the website "claimFormGen_HP_repl_FO.pdf".

    I think this would be grounds to either process all claims and approve them or re-open the filing period after the errors with the website are corrected.