Truths about “Similar In Kind and Value”

“Similar in kind AND value”, appears multiple times in various notices that were either sent or shown to HP Class members.

Is NVIDIA and Milberg’s asking the HP Class and the court to simply ignore all these facts and go with their “similar in kind OR value” phrase which appeared just ONE TIME (ever) in all published court documents at the Settlement Administrator’s website?

Read the following truths then you decide.

Truth # 1: Email Summary Notice sent out to 1,988,135 class members (fact check here):

“… A Replacement notebook computer similar in kind and value if you purchased a version of certain models of notebook computers manufactured by HP containing one of the NVIDIA chips…”

Why is this truth important? Because there is NO MENTION OF “similar in kind OR value” anywhere.

Truth # 2: Postcard Summary Notices sent out to 3,146,459 class members (reference verification here):

“…(2) A Replacement notebook computer similar in kind and value if you purchased a version of certain models of notebook computers manufactured by HP containing one of the NVIDIA chips; or…”

Why is this truth important? Because “similar in kind and value” message was contain in a postcard that was sent to 3.14 million+ household addresses belonging to Apple, Dell and HP Class members.

Truth # 3: REVISED Summary Notice postcards sent out the (HP) Class members (reference verification here):

“….(2) A Replacement notebook computer similar in kind and value if you purchased a version of certain models of notebook computers manufactuered by HP containing one of the NVIDIA chips;….”

Why is this truth important?

A) Because when there was a change made to the initial Notice, the Settlement Administrator sent out a revised notification to re-inform all HP Class members;

B) Revised Summary Notice still referenced “similar in kind and value” phrase;

Truth # 4: FULL Settlement Notice (reference link here):

“… (2) A Replacement notebook computer similar in kind and value, if you purchased a version of certain models of notebook computer manufactured by HP containing one of the NVIDIA chips and your notebook is experiencing…” (reference: page #16 of 65)

9. What does the settlement provide?

“NVIDIA has also agreed to provide a replacement HP notebook computer to Class Members who bought certain versions of some HP notebook computers that contain an NVIDIA chip and who send in a valid Claim Form, appropriate supporting documentation, and (if the Claim Form is approved) their eligible malfunctioning HP notebook computer…” (reference: page #20 of 65)

“10. What can I get from the settlement?

(2) for a replacement HP notebook computer with one similar in kind and value if you bought a subject HP notebook computer; and…” (reference: page #20 of 65)

Why is this truth important? Because the Full Notice is considered to be the “bible”. It is a comprehensive document containing very detailed information regarding the NVIDIA GPU litigation settlement. Matter of fact, it is SO IMPORTANT that:

• Email Summary Notice(Exhibit A) instructs readers to reference “the Full Notice” 5 times.
• Postcard Summary Notice (Exhibit B) instructs readers to reference “the Full Notice” 8 times.
• Published Summary Noice (Exhibit C) instructs readers to reference “the Full Notice” 5 times.

In addition to these references, the Full Notice specifically mentioned “similar in kind and value” 2 times.

Truth # 5: Summary Notice via USA Today with daily print circulation of 1,812,092 (reference verification here):

“… (2) A Replacement notebook computer similar in kind and value, if you purchased a version of certain models of notebook computer manufactured by HP containing one of the NVIDIA chips…” (reference: page #16 of 65)

Why is this truth PARTICULARLY important? In addition to “similar in kind and value” phrase being used again, think about the different types of people who might read traditional newspapers today and how this person might be harmed by NVIDIA and Milberg’s actions.

Truth # 6: Post Opt-Out version of the Publication Notice (reference verification here):

“… (2) A Replacement notebook computer similar in kind and value, if you purchased a version of certain models of notebook computer manufactured by HP containing one of the NVIDIA chips…” (reference: page #32 of 65)

Truth # 7: Declaration of Jeff Westerman in Support of Plaintiffs’ Motion for Final Approval of Settlement [258] (reference verification here):

“…Negotiations over the language for the final terms of the settlement contained in the Settlement Agreement were long and detailed….” (Doc # 258, page 14 of 33)

” 44. In addition, after the fee and expense amount was agreed to, but before the settlement agreement was executed, it was learned that certain HP models included as Class Computers incorporate motherboards or related components that are no longer readily available for use as replacement parts. After additional negotiation, the Parties agreed a new replacement computer of like or similar kind and equal or similar value will be provided to HP consumers at NVIDIA’s expense. This of course represents an even better result…” (Doc # 258, pages 15-16 of 33)

“…As detailed in the declaration of Katie Horton Re: Notice Procedures (“Horton Decl”), direct notice was sent to well over five million Class Members, which was further supplemented by publications in USA Today, PCWorld.com, MacWorld.com, and PCMag.com, and on a dedicated settlement website at www.NVIDIASETTLEMENT.com. (Reference: Doc # 258, page 16-17 of 33)

“…50.  This resolution more than meets the standard for final approval of a settlement:  it fixes or replaces Class Members’ computers, addresses the defects alleged in the Complaint, and provides refunds for those Class Members who paid to repair their Class Computers during the Class period.  To date, only 5 objections to the Settlement have been filed. Some of these objections arrived as we are putting these papers in final form and are addresses in the Final Approval Brief (Reference: Doc # 258, page 17-18 of 33)

55. As detailed in the concurrently filed Hornton Decl., the Class reaction to date overwhelmingly supports the Settlement. (Reference: Doc #258, page 19 of 33)

67. Although Plaintiffs and Plaintiffs’ Counsel firmly believe that the claims asserted against NVIDIA have merit, they concluded that the Settlement is fair, reasonable, and in the best interests of the Settlement Class. In coming to this conclusion, Plaintiff and Plaintiffs’ Counsel considered, among other things: the substantial and immediate benefits that consumers will receive from the Settlement now while consumers are still in possession of their computers…” (Reference: Doc #258, page 22 of 33)

74. In addition, the current Settlement benefits to consumers are even greater than they were at the time Plaintiffs’ Counsel negotiated its fees with NVIDIA. As discussed above,due to the replacement parts shortage, HP consumers will actually receive a new replacement computer in lieu of a replaced part in the consumer’s old computer. Despite this  added value to the Settlement once the shortage was discovered, Plaintiffs’ Counsel did not seek to increase its fees and expenses. As this declaration is being finished, only one  objection to the fee and expense application has been filed.(Reference: Doc #258, Page 24 of 33)

Why are all these truths important? Because in justifying attorney fees and expense:

1) Plaintiffs’ counsel summarized various benefits to the Class;

2) Plaintiffs’ counsel re-iterated “like or similar kind and equal or similar value” message;

3) NVIDIA and Plaintiff’s counsels CLEARLY BENEFITED by “only receiving 5 objections” with existing settlement languages;

4) Plaintiff’s counsel re-confirmed  that “the Class reaction to date overwhelmingly supports the Settlement” based on the EXISTING language of “like or similar kind and equal or similar value”;

5) They concluded that the “Settlement is fair, reasonable, and in the best interests of the Settlement Class” based on the EXISTING language of “like or similar kind and equal or similar value”;

The most important TRUTH in the Mr. Westerman’s Declaration is WHAT IS NOT INCLUDED.

His declaration DOES NOT INCLUDE “like or similar kind OR equal or similar value” phrase ANY WHERE in the document.

Truth # 8: PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR FINAL APPROVAL OF SETTLEMENT [256-1] (reference verification TBD):

On September 15, 2010, the Court granted Preliminary Approval of the Settlement, and approved the proposed notice program. (page 6 of 27)

The Settlement more than meets the standard for final approval (page 6 of 27)

The settlement discussions were rigorous, hard-fought, and spanned over nine months. Westerman Decl., ¶¶ 7, 35; Phillips Decl. ¶¶ 4-5. It was only as a result of substantial efforts by the Parties, their counsel, and Judge Phillips that a settlement in principle was reached. (page 8 of 27)

The Parties conducted the entire settlement negotiation process at arm’s-length and in an adversarial manner. Westerman Decl., ¶¶ 6, 38, 57; Phillips Decl. ¶ 6. (page 8 of 27)

The Court also approved the Parties’ proposed Notice to the Settlement Class, appointed Rosenthal & Company LLC to supervise and administer the notice plans and approved Milberg LLP as Class Counsel. Id., ¶¶ 5, 6, 8. (page 8 of 27)

Because Class Computers from HP incorporate motherboards or other non-NVIDIA components that are no longer sufficiently available for use as replacement parts, the Parties  agreed NVIDIA will provide a new replacement computer of like or similar kind and equal or similar value to the consumer at NVIDIA’s expense. (page 8-9 of 27)

This resolution more than meets the standard for final approval of a settlement: it fixes or replaces Settlement Class Members’ computers,…(page 22 of 27)

In granting final approval of a class action settlement, the Court’s inquiry is to determine that the Settlement: (a) was not the product of fraud or collusion, and (b) is fair, adequate, and reasonable. (page 11, line 15-22)

D. Initial Reaction to the Settlement Has Been Overwhelmingly Positive Class notice has been emailed or mailed, as applicable, to 5,123,594 potential Settlement Class Members, the U.S. Attorney General, and the 50 State Attorneys General as set forth below and in the Horton declaration. (page 15 of 27, lines 20-23)

Respectfully, the Class settlement would have provided Mr. Anderson — and any other Class member with a HP Class Computer — with a new HP notebook of equal or greater value. (page 17 of 27, line 16-20)

The settlement website provides consumers with detailed information about the settlement’s terms, their rights in connection with the settlement, the ability to electronically verify Class Members eligibility to participate in the settlement, and the date, time, and location of the Settlement Hearing, at which time the Court will consider final approval of the  Settlement. Horton Decl. ¶ 11 (page 21, lines 16-20)

Truth # 9: NvidiaSettlement.com’s January 10th 2011, FAQ #9 (reference verification TBD):

As extensively covered before, someone within NVIDIA / Milberg / Rosenthal have been busy making ever-so-subtle changes from “similar in kind AND value” to “similar in kind OR value” (click here for more).  However, in addition to March 14th (unedited version) FAQ version, I have located a PDF version of Jan 11, 2011 version.  Too bad for NVIDIA/Milberg, it says the following:

9.  What Does the Settlement Provide?

“…Nvidia has agreed to provide a replacement HP notebook computer to Class members…

The replacement HP notebook computer will be of similar kind and value as their eligible…”

Truth # 10: NvidiaSettlement.com’s March 14, 2011 FAQ #9 (reference verification TBD):

9.  What Does the Settlement Provide?

“…Nvidia has agreed to provide a replacement HP notebook computer to Class members…

The replacement HP notebook computer will be of similar kind and value as their eligible…”

Truth # 11: NvidiaSettlement.com’s March 16, 2011 FAQ #9 (reference verification TBD):

Someone at NVIDIA / Milberg / Rosenthal made slight changes to FAQ # 9 and #10 so that it now reads this:

9.  What Does the Settlement Provide?

“…Nvidia has agreed to provide a replacement notebook computer to Class members…

The replacement HP notebook computer will be of similar kind or value as their eligible…”

Why is this important?  Because this change was done one day after the claim filing period expired when the only audience for it would have been court personnel researching the upcoming March 28th hearing.

Truth # 12: Doc 256-1 Plaintiff’s Memorandum of Points and Authorities in Support of Motion for Final Approval of Settlement(fact check TBD-Doc 256-1, Page 14 through 19 ):

“… Respectfully, the Class settlement would have provided Mr. Anderson — and any other Class member with a HP Class Computer — with a new HP notebook of equal or greater value….”

Why is this important?  Because Milberg LLP is asking the Court to approve the settlement.  This language is presented to Judge Ware to convince him that the settlement is fair and adequate.

Truth # 13: Doc 308 Lichterman In Support of Motion for Final Approval of Settlement (fact check TBD):

12. I have been actively involved in NVIDIA’s efforts to research, select and obtain replacement computers for Class Members who own a Hewlett-Packard (“HP”) computer system and whose claims are approved by the administrator. In light of the passage of time and technological advances, the new systems are expected to have similar or better performance than the Class Computers, albeit at a lower cost. HP has helped NVIDIA to identify suitable replacement systems and is likely to help supply NVIDIA with many replacement computers at NVIDIA’s cost.

Why is this important? This time, NVIDIA is pleading with the court to approve the settlement based on their CURRENT settlement language using “similar in kind AND value” that is fair and adequate.

Truth # 14: Section 2.6, Final Stipulation (fact check Doc 283):

“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”.

Besides the fact that “LIKE OR SIMILAR KIND AND EQUAL OR SIMILAR VALUE” was mentioned many, many more times versus “OF LIKE OR SIMILAR KIND OR EQUAL OR SIMILAR VALUE”  that appeared just ONE TIME in this document, there is one more key fact.  That is the phrase “WILL BE PROVIDED” as part of the “and” argument.  Not “maybe”, not “based on following qualifier” or anything else.  “WILL BE PROVIDED”.  As plain as you can get to convince HP Class why they should remain in the Class.

PS. If you have any print, web, TV or radio media contacts, please leverage your relationship and get them involved or send an email to:

n v i d i a 4 1 1 (at) gmail (dot) com