XFX loses lawsuit for bait n switch operation

[GluteusMaximus]

It doesn't explicitly state that they cannot send you a superior replacement card...

It doesn't explicitly say they cannot send me a rock either... or the deed to a castle... or an aircraft carrier. What's your point?

... but it doesn't explicitly state that they can either.

It says that they will repair or replace the portions of the product that were defective.

Where does sending an alternative product come into the picture? Where did that even come from?...it came from an economic decision, that's where.

1. It is cheaper to toss a defective board in the trash than to repair it thus; you have less technicians who can work on the component level to keep on the payroll. You have less overhead maintaining a stock of components.

2. If a whole replacement board isn't available, it is cheaper to send something else that's in stock thus; they can eliminate having replacement products in stock for warranty claims. This is a HUGE cost savings to a manufacturer because of the inventory reduction.

I have no problem with companies who will put such clauses in their warranties. I DO have a problem with companies who impose new clauses that were not in my warranty.

btw, 2x 260s being equal or not to 2x 8800 ultras is irrelevant. XFX would not even consider the matter. They decided that the 260 was within their right to stick me with and washed their hands of it.

Yes, they did show up in court. They sent Lloyd Lees, their marketing manager.

 

[HurleyBird]

It doesn't explicitly say they cannot send me a rock either... or the deed to a castle... or an aircraft carrier. What's your point?

You might get the point if you stop with the hyperbole. Sending you an aircraft carrier or castle would not be reasonable. Neither would sending you a less powerful graphics card. Sending you a more powerful graphics card is arguably reasonable.

It says that they will repair or replace the portions of the product that were defective.

But it does not state what exactly they are obligated to send you as a replacement. There is no explicit statement from XFX that they are going to send you the exact same make and model. The wording is vague. Your judgement is based entirely on the court's implicit interpretation of the passage, but a different judge could have easily interpreted things to be the other way. Your odds were only ever about the same as flipping a coin. This time it landed on heads -- you got lucky.

 

[SickBeast]

OP the law says that XFX had to make you whole in a reasonable way. For 99% of people, the 260 would have met that criteria. You were an anomaly and perhaps the legal system was the only way to sort this one out.

 

[3DVagabond]

Two air cooled 260's were inferior to two water cooled 8800's. It would have been a downgrade.

They aren't liable for your waterblocks fitting or not.

 

[SickBeast]

They aren't liable for your waterblocks fitting or not.

Yes they are actually. They have to make him "whole". If he had a pair of bad-a GPUs with water blocks before, then they have to make it so he has a pair of them again.

 

[3DVagabond]

Yes they are actually. They have to make him "whole". If he had a pair of bad-a GPUs with water blocks before, then they have to make it so he has a pair of them again.

Trust me, no they aren't. They didn't supply them with waterblocks. It's not their responsibility that he modified them. This is a warranty claim, not insurance.

 

[Vesku]

Pretty harsh post title, which I think is one of the reasons for the bickering in the thread. Bottom line is XFX at one point had a warranty with less options for remedying defective parts than their current version. They didn't want to honor their warranty as written and instead operate under their revised warranty. Customer sues and wins, not surprising since telling a judge the equivalent of "but that original warranty we gave the customer was too much in his favor/too hard to fulfill, your honor" isn't going to be a very strong legal position.

 

[exar333]

The problem with these lifetime warranties is that they open up the companies to abuse like this.

This could definitely still happen with 3-year warranties. Current cards just aren't made for a really long time. I would think most folks would be happy for any card like a 260/280/550 or something along those lines for a 8800-replacement.

It does get a little more hairy if you had 2x8800 in SLI or something, but seriously just use the faster card and sell the old one...\

OP fails terribly here. I would not be proud of this.

 

[GluteusMaximus]

But it does not state what exactly they are obligated to send you as a replacement.

Sure it does. It states that they will replace the portions of the product found to be defective.

There is no explicit statement from XFX that they are going to send you the exact same make and model.

There doesn't need to be. Sending an exact same make and model was not an option either. According to the warranty, they can; (1) repair the card or (2) replace the portions that are found to be defective.

I would have gladly accepted a differently serialized 8800Ultra, but that was not their legal right to send unless every part of my video card was found to be defective. Still, I would have welcomed any 8800Ultra, same or not, without delay. That thing was a monster.

Anyway, moot points here since they weren't going to consider any remedy other than the one they imposed.

 

[arkcom]

The warranty also likely states that any physical modification of the card voided the warranty.

They didn't really have to replace anything at all, since you modded the cards by putting a waterblock on them.

 

[HurleyBird]

Sure it does. It states that they will replace the portions of the product found to be defective.

For the last time it does *not* state that those replacement portions need to be the exact same as the warrantied ones.

I would have gladly accepted a differently serialized 8800Ultra, but that was not their legal right to send unless every part of my video card was found to be defective.

What???

I don't think you're interpreting "portion(s)" correctly at all. Based on your logic XFX could have figured out which parts of your 8800 failed, and mail you "replacement portions" that you're expected to solder on yourself. It's pretty obvious that the entire graphics card counts as a "portion" of the product, an adapter or packaged software would be another portion. This way XFX doesn't need to send you back all of the extra bits that usually come with a video card. The alternative makes absolutely zero sense, and makes me feel dumber just thinking about how anyone could have possibly interpreted it the way you did.

 

[Imp]

"XFX's liability under the Double Lifetime Protection is limited to the repair, or, at XFX's discretion, the replacement of the portion(s) of the Product that are found to be defective in material or workmanship."

Wow. That's it?

Nowhere does it say they will guarantee you a like for like replacement, and in your favour, nowhere does it say they can/will send you an alternative. Taking a literal interpretation, they had to repair or fix whatever card you send in.

"Reasonably", in the event they were unable to do so, they should have given you a refund or a suitable replacement of equal/similar value. As far as I know, you don't usually buy two SLI cards in one package with a guarantee for matching cards in the waranty... So, looks like OP is picking and choosing the parts of the "contract" he likes.

The rarity of the part doesn't really excuse them from their contractual obligations. At minimum, if an agreement can't be made, he should get a refund (which it appears he did). I can't really grasp why you're making the argument that breaching the contract is ok because the part was hard/impossible to source.

"Breach of contract"... You make it sound like XFX totally stiffed him.

 

[Imp]

Sure it does. It states that they will replace the portions of the product found to be defective.


There doesn't need to be. Sending an exact same make and model was not an option either. According to the warranty, they can; (1) repair the card or (2) replace the portions that are found to be defective.

I would have gladly accepted a differently serialized 8800Ultra, but that was not their legal right to send unless every part of my video card was found to be defective. Still, I would have welcomed any 8800Ultra, same or not, without delay. That thing was a monster.

Anyway, moot points here since they weren't going to consider any remedy other than the one they imposed.

Jesus Christ.. you are clearly not a lawyer and have absolutely no understanding of the law and how courts/judges work.

Just stop... You won in small claims court because it was a case where two parties with grossly different amounts of bargaining power were involved. Judge saw that and probably just gave it to you.

 

[Mistwalker]

Disregarding any and all points regarding performance and relative cost, insisting on identical replacements even to the point of refusing a pair of 260s, is understandable if you stick to the absolute wording of the contract. The moment "two 280s would have been acceptable" gets mentioned, it puts the lie to all that though. Shame.

The contract also mentions that any replacements would be made "at XFX's discretion". Pretty big point there. If your card died due to a failed transistor, they could have just sent you a transistor and been covered, by that wording.

Was the OP within his legal rights to take this to court and win?

It would certainly seem so.

Was the OP a thoroughly unreasonable person throughout this process?

It would certainly seem so.

 

[Ferzerp]

Wow. That's it?

Nowhere does it say they will guarantee you a like for like replacement, and in your favour, nowhere does it say they can/will send you an alternative. Taking a literal interpretation, they had to repair or fix whatever card you send in.

"Reasonably", in the event they were unable to do so, they should have given you a refund or a suitable replacement of equal/similar value. As far as I know, you don't usually buy two SLI cards in one package with a guarantee for matching cards in the waranty... So, looks like OP is picking and choosing the parts of the "contract" he likes.



"Breach of contract"... You make it sound like XFX totally stiffed him.

From a legal standpoint, they did not hold up their end of the agreement, and apparently the court agrees. Again, you say the OP is picking and choosing, but a court of law found his interpretation of the warranty to be the correct one.

Honestly, that they later changed their warranty terms shows that at least at some point, XFX realized that the original terms did not allow for the use of differing parts in a replacement, and they made a new warranty that does.

 

[Imp]

From a legal standpoint, they did not hold up their end of the agreement, and apparently the court agrees. Again, you say the OP is picking and choosing, but a court of law found his interpretation of the warranty to be the correct one.

Honestly, that they later changed their warranty terms shows that at least at some point, XFX realized that the original terms did not allow for the use of differing parts in a replacement, and they made a new warranty that does.

A small claims court with a single judge (the lowest possible level and practically an arbitrator?)... let's not equate them to a real court with judges, lawyers, and maybe a jury.

And again, vastly different bargaining power.

 

[Ferzerp]

The moment "two 280s would have been acceptable" gets mentioned, it puts the lie to all that though. Shame.

How do you figure? If one party to a contract unable to fulfill their initial terms, do you feel that that party is then allowed to chose an outcome more favorable regardless of the second party's wishes? Two new 280's have a value (well, at least cost) very, very similar to the amount he was awarded in his case.

 

[Ferzerp]

A small claims court with a single judge (the lowest possible level and practically an arbitrator?)... let's not equate them to a real court with judges, lawyers, and maybe a jury.

And again, vastly different bargaining power.

Absent an appeal, the level of the court really has no bearing.

We really don't have "real court" and "fake court". When a matter is found for or against you, unless you appeal, the level of the court matters how, legally?

 

[Imp]

Absent an appeal, the level of the court really has no bearing.

We really don't have "real court" and "fake court". When a matter is found for or against you, unless you appeal, the level of the court matters how, legally?

So... you're a lawyer? You really try to sound like one if you're not.

I'm just saying it's kid's T-balll, not Major League.

 

[Corporate Thug]

Absent an appeal, the level of the court really has no bearing.

We really don't have "real court" and "fake court". When a matter is found for or against you, unless you appeal, the level of the court matters how, legally?

I would think the fact that there is practically no evidenatiary standards and right to counsel in small claims makes a huge difference. Also, small claims judgments are renewed de novo. Superior Court judgments are generally reviewed for abuse of discretion.

In my experience, small claims judges tend to just "split the baby" more often than not. I used to handle a lot of small claims cases an a corporate officer...more often than not, the plaintiff got half or close to half of what he was asking for. I won every time on my appeal.


Long story short, the level of court has a has a large bearing.

 

[GluteusMaximus]

Absent an appeal, the level of the court really has no bearing.

We really don't have "real court" and "fake court". When a matter is found for or against you, unless you appeal, the level of the court matters how, legally?

I'm certain I can get this Judgment affirmed in a superior court. Let them appeal if they wish. The contract stands on its own. Testimony from either party is irrelevant.

I'm certain the superior court is going to be very impressed when XFX tries to introduce false evidence (their new warranty). The small claims Judge wasn't happy with that maneuver, I can tell you that.

 

[Imp]

I'm certain I can get this Judgment affirmed in a superior court. Let them appeal if they wish. The contract stands on its own. Testimony from either party is irrelevant.

lol....

Contract is clearly vague and open to interpretation. They'd find in your favour because the multi-million dollar company wrote it and stuck it on the dude who doesn't really understand contracts/law... and probably can't afford a lawyer (that's not a jab).

 

[GluteusMaximus]

Contract is clearly vague and open to interpretation.

It's very concise and not open to interpretation. If you cannot interpret something in it, quote that passage here and I'll help you to understand it.

...dude who doesn't really understand contracts/law... and probably can't afford a lawyer (that's not a jab).

Hiring legal council for a simple breach of contract suit would be a waste. Paying for it would be a sin.

 

[Destiny]

I'm certain I can get this Judgment affirmed in a superior court. Let them appeal if they wish. The contract stands on its own. Testimony from either party is irrelevant.

I'm certain the superior court is going to be very impressed when XFX tries to introduce false evidence (their new warranty). The small claims Judge wasn't happy with that maneuver, I can tell you that.

All they have to do is prove you have waterblocks and your warranty is moot...

You won your judgement in small claims... GOOD JOB and now walk away and stop implying or assuming about something else... one time I got hit by a car that ran a red light, the driver is wrong, and I tried to win in small claims for my medical bills and I lost still! It swings either way...

if you start claiming supier court is going to affirm the judgement you are sorely wrong... alot more evidence comes into play and it is decided by a jury - not by one judge. If you are going to spend more than your cards in court costs then go right ahead - but regardless a Superior court will throw your case for wasting time and tax payer money...

XFX just handled their court apperance the wrong way... if they kept pressing that they sent you a better card then it fulfills the warranty clause of "equal or better" - either way no tech company can give you the exact same card if the warrantied product is already EOL...they do have to give you something better if they don't have 8800 in stock...
And if similar people here on ATOT is your jury - and only a majority not a unanimous decision is required of the jury for a judgement... I highly doubt the odds will be in your favor in a Superior Court Case because XFX will hire competent lawyers that can present their case better than a small claims hearing...

 

[taltamir]

About BFG going out of business, that was not due to customers exploiting the warranty (someone here made that claim earlier). That was due to not having good enough relationship with either AMD or nVidia during the v1 fermi days.
XFX was allowed to jump ship by AMD and was saved.
eVGA had their other branches to fall back on for long enough for the revised fermis to arrive.
BFG was unable to cope and died.

All they have to do is prove you have waterblocks and your warranty is moot...

XFX is one of the companies which does not void warranty for use of waterblocks or any other 3rd party cooling method.
The other two were BFG and eVGA.