From: Deanna Berman (dberman_at_dimensional.com)
Date: Mon Nov 04 2002 - 21:05:31 EST
Of course it wouldn't qualify to be mounted as a class action --
unless Steve can find a bunch of other people who've been treated very
similarly under very similar circumstances.
Small claims court could be a possibility, but one would have to take
a hard look at the local small claims laws to see if it can truly be
used. The jurisdiction of SC courts is usually limited by state
statute to a specific group of case types, and are often severely
constrained by procedural rules -- such as a requirement that the
defendant has to live, work or maintain an office -- and maybe even
have to be "found" by a process server -- in the county where the suit
is brought (a much tougher standard than corporate "doing business").
Not all jurisdictions even allow torts to be heard in small claims
court. Any suit that Steve might be tempted to file would probably
encompass claims of both breach of contract (refusing to honor the
service/warranty portions of his purchase contract) and tort (some
variations of negligent, intentional, and/or outrageous behavior that
violated non-contractual duties to him).
It is not always true that venue must lie where the tort took place.
That would be pretty unfair if your drunken buddy throws you overboard
on a two-week Caribbean vacation just before you're both due back in
Montana. Venue is a reasonableness/connection to the complaint
standard, and it can be proper in several places, such as where one of
the parties lives or works, or where something related to the case is
located, or a location specified in a contract if it is a mixed
contract/tort case (unless the specified venue is deemed unreasonable
by a judge). Some laws restrict venue to a single place, for example,
an eviction might have to be brought in the county where the premises
are located.
The toughest obstacle to succeeding in a small claims action is that
many small claims laws allow the defendant to move the case into a
full-jurisdiction court merely by choosing to be represented by a
lawyer (because some states don't allow lawyers to practice in SC
court). The case may still be carried out with relaxed procedures like
a small claims court, but the fact remains that the standard of legal
expertise required to prevail is dramatically higher in front of a
judge who is not accustomed to amateurs as is the small-claims
magistrate, hearing officer or judge.
Oops, sorry for the overkill, but I'm sending in case anyone might be
interested...
Deanna
dberman_at_dimensional.com
> i don't think this qualifies as a class action..
> i think small claims would be a better course of action..
> venu runs where the tort took place and in think a good case can be
made for
> that to be when you opened the box and found the denial of the
warranty
> claim..
> also, since IBM has nexus most everyplace, then that makes most
places their
> "office"..
>
> but if there IS a spill, no matter how small, then they DO have a
case..
> but to call is a biological hazard is a bit extreme..
> and to give no information at all other than a quick note is simply
not good
> customer relations..
>
> <------------------------------->
> Cordially, :-)
> Bill Morrow
> WEB page http://thinkpads.com
> thinkpads.com Open Forum
> http://www.afaonline.com:8080/webboard/$webb.exe/~2/login?
> or go to thinkpads.com and link from there
> E-Mail: bill at thinkpads dot com
> ----- Original Message -----
> From: "Bruce Markowitz" <scosgt_at_worldnet.att.net>
> To: "Jonathan Graham" <grahamj_at_virtue.cx>; <andres_at_msu.edu>;
> <thinkpad_at_stderr.org>
> Sent: Monday, November 04, 2002 6:48 PM
> Subject: Re: [Thinkpad] EZ Serv insanity update 2
>
>
> > Yes, but the THREAT is what gets action.
> > The group may get short $$, but the Corp loses MILLIONS
> > ----- Original Message -----
> > From: "Jonathan Graham" <grahamj_at_virtue.cx>
> > To: <andres_at_msu.edu>; <thinkpad_at_stderr.org>
> > Sent: Monday, November 04, 2002 6:35 PM
> > Subject: Re: [Thinkpad] EZ Serv insanity update 2
> >
> >
> > > Ug...not to mention that the group that tends to get the short
end of
> the
> > > stick in a class action is the consumer. Remember the mwave
class
> action
> > > against IBM? $100 USD and a 10% off coupon.
> > >
> > > J.
> > > ----- Original Message -----
> > > From: "STeve Andre'" <andres_at_msu.edu>
> > > To: <thinkpad_at_stderr.org>
> > > Sent: Monday, November 04, 2002 5:53 PM
> > > Subject: Re: [Thinkpad] EZ Serv insanity update 2
> > >
> > >
> > > > Class action lawsuit? Why?
> > > >
> > > > This is an individual problem, not en mass as far as I can
tell.
> > > >
> > > > Besides, I would rather IBM do the right thing here. There
are
> > > > two parts to what I consider correct behavior: first, to
realize that
> > > > they're service system is over-zealous in inspecting things (I
> > > > mean, the spill is *really* minor), and more importantly how
to
> > > > deal with a customer in this situation. The letter I got was
perhaps
> > > > even more infuriating than the actual hardware problem is.
> > > >
> > > > There has to be a better way. Reason has to win inside IBM.
It
> > > > has to, else IBM is doomed. I don't want to see that.
> > > >
> > > > --STeve Andre'
> > > >
> > > > On Monday 04 November 2002 05:46 pm, Bruce Markowitz wrote:
> > > > > Only on terminology will work
> > > > > Call Legal in Armonk NY and say:
> > > > > CLASS ACTION LAWSUIT
> > > > > ----- Original Message -----
> > > > > From: "David Goldman" <David_at_DGoldman.Com>
> > > > > To: <thinkpad_at_stderr.org>
> > > > > Sent: Monday, November 04, 2002 3:48 PM
> > > > > Subject: Re: [Thinkpad] EZ Serv insanity update 2
> > > > >
> > > > > > At 02:04 PM 11/4/2002, STeve Andre' wrote:
> > > > > > >Well, I just got a call from a Mike at IBM, about my
"offensive
> > > > > > >or biological hazard" in my ThinkPad.
> > > > > > >
> > > > > > >I lose.
> > > > > > >
> > > > > > >He said exactly what the other people at IBM said: that
something
> > > > > > >(cat urine? cat hair?) was in my machine, and they would
not deal
> > > > > > >with this until it had been cleaned by someone else.
After that
> my
> > > > > > >unit would be repaired on a billable basis: my warranty
is gone,
> > > > > > >due to "negligence" on my part.
> > > > > > >
> > > > > > >The part that I found so interesting about this call was
that it
> > > wasn't
> > > > > > >helpful at all. No hint of trying to help the customer
here.
> > > > > > >
> > > > > > >Wow. I don't think I can recomend ThinkPads any more.
> > > > > > >
> > > > > > >I am sad.
> > > > > >
> > > > > > I find it interesting that they could not / would not tell
you
> > exactly
> > > > > > what is wrong. For example, couldn't they tell the
difference
> > between
> > > > > > cat hair and cat urine? And if it was urine, how would
they know
> the
> > > > > > difference between cat/dog/human urine? Do you even own a
pet (or
> an
> > > > > > ill behaved child)?
> > > > > >
> > > > > > If you have the ability to contact "Mike" again, I'd ask
for a
> > > SPECIFIC
> > > > > > answer regarding what testing was done to determine that
something
> > > > > > "offensive" was on your system. Did they use a chemical
test? A
> > black
> > > > > > light? A alcohol wipe (a la current airport security
checks), etc.
> > If
> > > > > > they refuse to identify the testing method they used (and
where in
> > the
> > > > > > warranty statement they previously informed you that such
> > "offensive"
> > > > > > material would void your warranty), then you intend to
take them
> to
> > > > > > small claims court over the arbitrary loss of value of
your
> Thinkpad
> > > > > > associated with a loss of warranty. Also indicate that you
will
> file
> > > > > > a complaint with the BBB. Finally, if "Mike" is not
available, I'd
> > > > > > ask to speak to his supervisor.
> > > > > >
> > > > > > This issue is *NOT* resolved until they can supply some
proof that
> > > they
> > > > > > did something more than flip a coin to determine that they
> > could/would
> > > > > > void your warranty.
> > > > > >
> > > > > > Good luck. Don't give up yet!
> > > > > >
> > > > > >
> > > > > > --
> > > > > > David Goldman
> > > >
> > > >
> > > >
> > >
> >
> >
>
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