Willem Vroegh v. Eastman Kodak Company
Encyclopedia
Vroegh v. Eastman Kodak Company, et al. is a class action
complaint that alleges that the defendants, "[i]n marketing, advertising and/or packaging their Flash Memory
Cards and Flash Memory Drives, Defendants misrepresent the size of the memory storage contained in the Flash Memory Cards and Flash Memory Drives." The complaint accuses the defendants of "false advertising
, unfair business practices
, breach of contract
, fraud
, deceit and/or misrepresentation, and violation of the California Consumers Legal Remedy Act
".
of the State of California
for the county of San Francisco on February 20, 2004. The complaint was first filed as "Vroegh vs. Dane Elec Corp., USA, A Foreign Corporation et al." When Dane-Elec
settled and was dismissed from the case on March 15, 2005, Eastman Kodak became the first defendant. Another plaintiff intervened in January 2004.
The complaint originally named the following companies as defendants:
The gravamen
of the complaint is the alleged loss in hard drive capacity that is caused by the difference between the measurements calculated using the binary prefix
and SI prefix
systems.
reported in their "California Legal News" that the settlement agreement calls for $2.4M in attorney fees. The settlement was finally approved on or about November 21, 2006. The settlement provided for either a refund of 5% of the original purchase price or a 10% coupon on future purchases. The refund amount is in excess of the amount of memory that was allegedly missing. Accordingly, the settlement made available to class members refunds in excess of $100 million.
Five defendants, including Dane Elec, settled the case on a non-class basis. The other five defendants, Eastman Kodak Company, Fuji Photo Film U.S.A., Inc., Lexar Media, Inc., PNY Technologies, Inc., and SanDisk Corporation, settled on a class basis.
Even though Netflix agreed to pay $2.5 million, the Judge in the case ultimately awarded Gutride Safier approximately $1.3 million.
On June 23, 2003, Gutride and Safier brought a Business Tort
complaint against numerous defendants, including: Amazon.com, Target Corporation, Wal-Mart Corporation, Dell, Good-Guys, and many others for false and deceptive advertising of MP3 players on the same "binary vs decimal calculation" issue. Ultimately, all of the defendants settled.
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
complaint that alleges that the defendants, "[i]n marketing, advertising and/or packaging their Flash Memory
Flash memory
Flash memory is a non-volatile computer storage chip that can be electrically erased and reprogrammed. It was developed from EEPROM and must be erased in fairly large blocks before these can be rewritten with new data...
Cards and Flash Memory Drives, Defendants misrepresent the size of the memory storage contained in the Flash Memory Cards and Flash Memory Drives." The complaint accuses the defendants of "false advertising
False advertising
False advertising or deceptive advertising is the use of false or misleading statements in advertising. As advertising has the potential to persuade people into commercial transactions that they might otherwise avoid, many governments around the world use regulations to control false, deceptive or...
, unfair business practices
Unfair business practices
Unfair business practices encompass fraud, misrepresentation, and oppressive or unconscionable acts or practices by business, often against consumers and are prohibited by law in many countries. For instance, in the European Union, each member state must regulate unfair business practices in...
, breach of contract
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
, fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
, deceit and/or misrepresentation, and violation of the California Consumers Legal Remedy Act
California Consumer Legal Remedies Act
The California Consumers Legal Remedies Act prohibits vagueness, unfair business practices, and deception by declaring unlawful "methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of...
".
Facts
The complaint, case number CGC-04-428953, was originally filed in Superior CourtSuperior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
of the State of California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
for the county of San Francisco on February 20, 2004. The complaint was first filed as "Vroegh vs. Dane Elec Corp., USA, A Foreign Corporation et al." When Dane-Elec
Dane-Elec
Dane-Elec is a French maker of computer memory chips and storage products.It has had a manufacturing facility in Spiddal, County Galway, Ireland since 1996. Major job losses were announced there in December 2010.-External links:**...
settled and was dismissed from the case on March 15, 2005, Eastman Kodak became the first defendant. Another plaintiff intervened in January 2004.
The complaint originally named the following companies as defendants:
- Dane-Elec Corp. USA
- FujifilmFujifilmis a multinational photography and imaging company headquartered in Tokyo, Japan.Fujifilm's principal activities are the development, production, sale and servicing of color photographic film, digital cameras, photofinishing equipment, color paper, photofinishing chemicals, medical imaging...
USA, Inc. - Eastman Kodak Company
- Kingston TechnologyKingston TechnologyKingston Technology Company, Inc. is an American privately held, multinational computer technology corporation that develops, manufactures, sells and supports flash memory products and other computer-related memory products. Headquartered in Fountain Valley, California, USA, Kingston Technology...
Corporation - Lexar Media, Inc.
- MemorexMemorexMemorex began as a computer tape producer and expanded to become a major IBM plug compatible peripheral supplier. It is now a consumer electronics brand of Imation specializing in disk recordable media for CD and DVD drives, flash memory, computer accessories and other electronics.Established in...
Products, Inc. - PNY TechnologiesPNY TechnologiesPNY Technologies, Inc is a manufacturer of flash memory cards, USB flash drives, solid state drives, memory upgrade modules, as well as consumer and professional graphics cards...
, Inc. - SanDisk Corporation
- Verbatim CorporationVerbatim CorporationVerbatim Americas, LLC is a US company that markets storage media and flash memory products. It is a subsidiary of Mitsubishi Chemical Holdings Corporation of Japan and is based in Charlotte, North Carolina.-History:...
- Viking Components Incorporated
- And up to 200 defendants "to be named at a later date".
The gravamen
Gravamen
Gravamen , , a complaint or grievance, the ground of a legal action, and particularly the more serious part of a charge against an accused person. In legal terms, the essential element of a lawsuit.In English the term is used chiefly in legal submissions and judicial opinions...
of the complaint is the alleged loss in hard drive capacity that is caused by the difference between the measurements calculated using the binary prefix
Binary prefix
In computing, a binary prefix is a specifier or mnemonic that is prepended to the units of digital information, the bit and the byte, to indicate multiplication by a power of 2...
and SI prefix
SI prefix
The International System of Units specifies a set of unit prefixes known as SI prefixes or metric prefixes. An SI prefix is a name that precedes a basic unit of measure to indicate a decadic multiple or fraction of the unit. Each prefix has a unique symbol that is prepended to the unit symbol...
systems.
Settlement
On August 16, 2006, there was a proposed final judgement on a proposed settlement and on November 1, 2006, LexisNexisLexisNexis
LexisNexis Group is a company providing computer-assisted legal research services. In 2006 it had the world's largest electronic database for legal and public-records related information...
reported in their "California Legal News" that the settlement agreement calls for $2.4M in attorney fees. The settlement was finally approved on or about November 21, 2006. The settlement provided for either a refund of 5% of the original purchase price or a 10% coupon on future purchases. The refund amount is in excess of the amount of memory that was allegedly missing. Accordingly, the settlement made available to class members refunds in excess of $100 million.
Five defendants, including Dane Elec, settled the case on a non-class basis. The other five defendants, Eastman Kodak Company, Fuji Photo Film U.S.A., Inc., Lexar Media, Inc., PNY Technologies, Inc., and SanDisk Corporation, settled on a class basis.
Attorneys for the plaintiff
The law firm of Gutride Safier, LLP and Milberg Weiss,http://www.usdoj.gov/usao/cac/news/pr2006/061.html have been involved in other significant class action lawsuits in California from which they applied for significant fee payments. Such fee requests are often cited as unreasonable in that they call into question the true motivation of the attorneys, as was the case with these particular attorneys. The requested fees, however, were required to be (and were) approved by courts. Two of the most notable class actions brought by Gutride Safier are the Chavez v. Netflix class action that was settled (but is currently on appeal) when the defendants agreed to pay Gutride Safier $2.5 million and the Orin Safier v. Western Digital Corporation class action that was settled when the defendants agreed to pay Gutride Safier $500,000. The Western Digital case involved the same "binary vs decimal calculation" issue as the Vroegh v. Eastman Kodak case. In each of these cases, the named plaintiff was awarded $1000 to $2000 "for their time and effort".Even though Netflix agreed to pay $2.5 million, the Judge in the case ultimately awarded Gutride Safier approximately $1.3 million.
On June 23, 2003, Gutride and Safier brought a Business Tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
complaint against numerous defendants, including: Amazon.com, Target Corporation, Wal-Mart Corporation, Dell, Good-Guys, and many others for false and deceptive advertising of MP3 players on the same "binary vs decimal calculation" issue. Ultimately, all of the defendants settled.