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On or about December 20, 2011 2010, the Honorable Judge Ware of the United States District Court, San Jose division, approved the final settlement agreement between NVIDIA and the lead plaintiff counsel, Millberg LLP.
Section 2.6 in this document contained the following exact passage pertaining to all HP class members:
“The Parties recognize that the HP models included as Class Computers incorporate motherboards or other components, apart from the NVIDIA GPU or MCP, that are no longer readily available in sufficient quantities for use as replacement parts.
Therefore, a replacement computer of like or similar kind and equal or similar value will be provided to the consumer at NVIDIA’s expense.
The Parties will meet and confer in good faith and agree on a suitable replacement of like or similar kind or equal or similar value”.
(Excerpt taken from the “Settlement Agreement of Stipulation and Release” (file name “SettlementAgreement.pdf”), obtained from NvidiaSettlement.com on February 17, 2011 at 20:16 ET)
I believe most HP class members, including myself, were relieved that we would finally get rid of our junk notebooks or tablets and start fresh with new notebooks or tablets that were comparable in specs and value.
On or about January 9th, 2011 NvidiaSettlement.com website, operated by the Settlement Administrator, announced that:
- Compaq Presario CQ50 be used to replace ALL all affected Compaq Presario and HP Pavilion owners;
- Asus EEE T101MT-EU17-BK be used to replace ALL affected HP Tx1xxx tablet owners.
Based purely on my personal observation, I believe a small firestorm broke out from the affected HP/Compaq class members who felt that they were misled based on the “in-kind and value” language. I believe this caused NVIDIA and the plaintiff’s counsel to confer and revise their replacement proposals with the following (this is the current proposal as of February 28, 2011):
- Compaq Presario CQ56-115DX be used as replacements for all affected Compaq Presario and HP Pavilion owners; and
- Choice of Compaq Presario CQ56-115DX or Asus EEE T101MT-EU17-BK be used as replacements all affected HP Tx1xxx tablet owners.
I believe this incremental step is a step in the right direction. However, it still falls very far from the promise as it was written in the final settlement language.
How can one-size-fits-all solution provide “similar in-kind and value” notebooks and tablets to a diverse group of HP owners with 26 platforms and corresponding models that exceed 200+? Any reasonable human being will say that is just being downright silly.
I do not believe that HP class members are being greedy when they are demanding “new…similar in-kind and value” replacement notebooks.
Matter of fact, I think the use of this specific language is the main reason why virtually no HP owners opted-out or excluded themselves from the class action suit. Based on 18 exclusion requests received by the Settlement Administrator, only 1 request out of 12 requests (6 other requests did not indicate the manufacturer name) was from an HP owner. In contrast, 10 Dell people requested to be excluded from the settlement.
By leveraging the “similar in-kind and value” sentence:
- NVIDIA directly benefited by keeping HP class members from opting out or excluding themselves; and
- The Plaintiff’s counsel benefited by minimizing the risk that NVIDIA may terminate the settlement agreement (“…NVIDIA may withdraw from and terminate the settlement if a certain number of pole exclude themselves from the Class” – Excerpt taken from the Declaration of Katie Horn, Settlement Administrator, file name 4.pdf, page 21)
I applaud NVIDIA and the plaintiff’s counsel for working hard in coming up with fair and equitable solutions for Dell, Apple and HP class members.
We, the HP class members, just want what was promised to us when we decided NOT to exclude ourselves from the class action suit:
A fair and balanced approach that provides “similar in-kind and value” notebooks to all HP class members.
A promise made should be a promise kept.