XFX loses lawsuit for bait n switch operation

[kevinsbane]

Forgive me if this has been posted, but what is the text of your warranty? I'd like to read it myself.

 

[GluteusMaximus]

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

Having water blocks does not void the warranty. XFX explicitly states so. As a matter of fact, XFX boasted that you were allowed to modify their cards as long as: when you return the card, it must be in the same condition (with heatsink and fan) as when it was new. I thought everyone knew that.

...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...

You tried to bring a medical claim, for yourself, in small claims court?!? Are you seriously, that impaired? Did that car run over your head?

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.

You're watching too much television. A superior court is going to do what the small claims court did, they are going to examine the warranty contract and determine if the defendant in the case fulfilled the promises expressly stated in the contract.

... if they kept pressing that they sent you a better card then it fulfills the warranty clause of "equal or better" - and if you start arguing about your custom waterblocks for 8800 as an argument for the exact same card to make it right, then it just renders your warranty moot = case thrown out becaues you voided your warranty... either way no tech company can give you the exact same card if the warrantied product is already EOL

The clause "equal or better" does not exist in my warranty. I can't understand what you're saying in the first part of that paragraph but I can say that the product was more than a year away from EOL. Life for a product of that type is 3 years.

... 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...

The odds will be exactly the same. The best attorney in the world isn't going to be able to convince a Judge to see this simple contract any different than did the small claims Judge. The contract is a no brainer, especially to a Judge who is an expert on contract law. It speaks entirely for itself. There are no grey areas.

 

[Mistwalker]

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.

I think such a point could/should have been negotiated, hard to say how and where this broke down. My point is the OP went from

Whether the 260 is faster than the 8800 ultra is not only debatable but also irrelevant. The allowed remedy in our contract was the only thing relevant.

to

I might have accepted two water cooled 260's (216 core) or two air cooled 280's and given my good 8800Ultra back to them so they could use it for some other RMA.

So the power of the replacement cards was in fact relevant after all. XFX could've gone the 280s route and all would have gone more smoothly, but this was not a principled stand on the OPs part as the second quote shows.

He got his money. I suppose he's entitled to it, if only because XFX tried to play fast and loose with the contract details when push came to shove. I don't see any reason to be boasting about the affair on a tech forum. Certainly, it wasn't a public service announcement to warn anyone about the evils of XFX's warranty service, this entire topic was created to celebrate the OP himself.

 

[tommo123]

I think such a point could/should have been negotiated, hard to say how and where this broke down. My point is the OP went from
to
So the power of the replacement cards was in fact relevant after all. XFX could've gone the 280s route and all would have gone more smoothly, but this was not a principled stand on the OPs part as the second quote shows.

He got his money. I suppose he's entitled to it, if only because XFX tried to play fast and loose with the contract details when push came to shove. I don't see any reason to be boasting about the affair on a tech forum. Certainly, it wasn't a public service announcement to warn anyone about the evils of XFX's warranty service, this entire topic was created to celebrate the OP himself.

there was a point. tell others about options they might not otherwise know they had - as in calif allowing a phone in appearance in court etc? that they can win in court if they had the same old warranty as the OP instead of bending over and taking any old shit which is what a lot of people here wanted him to do.

 

[Destiny]

Having water blocks does not void the warranty. XFX explicitly states so. As a matter of fact, XFX boasted that you were allowed to modify their cards as long as: when you return the card, it must be in the same condition (with heatsink and fan) as when it was new. I thought everyone knew that.

Good to know... my mistake... I did not know that.

You tried to bring a medical claim, for yourself, in small claims court?!? Are you seriously, that impaired? Did that car run over your head?

I wasn't trying to rip off the insurance company - just to pay my med bills and my passengers med bills which totaled under $10,000 = small claims... guy ran a read light and totaled my car = thought it was a clear cut case, but whatever... I wasn't trying to exploit anything

You're watching too much television. A superior court is going to do what the small claims court did, they are going to examine the warranty contract and determine if the defendant in the case fulfilled the promises expressly stated in the contract.

No... I don't even watch TV... I have been in a Jury, defendent and plaintiff in contract and civil cases.

The clause "equal or better" does not exist in my warranty. I can't understand what you're saying in the first part of that paragraph but I can say that the product was more than a year away from EOL. Life for a product of that type is 3 years.

Regarding lifetime warranty... it could be implied as the life of the product or the life of the company (company goes out of biz = no more warranty obviously)

... if the product line/life ends in 1 year (manufacturer no longer producing) then the lifetime warranty ends in 1 year and that would imply XFX double lifetime warranty = 2 years for that product.

EOL for any product can be 6 months, a year, 18 months or 3 years like you stated... but obviously your 8800 card was end of life (because manufacturer no longer makes it or carry stock ) otherwised they would've sent you an 8800 instead of the 260.

The odds will be exactly the same. The best attorney in the world isn't going to be able to convince a Judge to see this simple contract any different than did the small claims Judge. The contract is a no brainer, especially to a Judge who is an expert on contract law. It speaks entirely for itself. There are no grey areas.

This may become a civil suit, where as the jury makes the decision if it gets that far, obviously either party will be more prepared...

Contracts and services are open for interpretation or how people see's how things are written... example like some people see what you're writing on this thread or titled the thread as raging, or bragging, or on a mission to try to prove a purpose.

But regardless... we can't really pass judgement till we see the original warranty that your product was based on... I never owned an XFX product so I don't know. I can only base what I'm saying on my experience with other product's warranty, contracts, and some of the consulting work I do...

either way XFX messed up in this whole ordeal.

 

[T_Yamamoto]

I might have accepted two water cooled 260's (216 core) or two air cooled 280's and given my good 8800Ultra back to them so they could use it for some other RMA. That would have been a better deal, for them and myself, than for XFX to issue a full refund of $750.00 They would have still earned a profit while keeping a loyal customer.

Outside of that, I'd rather have had my water cooled 8800ultra back. It over clocked well and scaled wonderfully in SLI configuration. Plus, I already had the water blocks for them.

They insisted that they had fulfilled their obligations according to the (new)warranty and washed their hands of it. I got so sick of the run around that I knew the only way to get their attention would be a lawsuit. Given the opportunity to find some compromise, they refused to even consider the matter.

@arkcom and HurlyBird...

XFX pulled the copy of the original warranty from their website. If you look up the current warranty for the 8800Ultra, you'll see that the warranty they now provide has descriptions of graphic cards that didn't exist when the 8800Ultra was being sold. They deliberately pulled the original warranty from their website and put in its place a document that serves to benefit XFX financially. That is the document that they tried to pass off as being original during trial.

The relevant portion of the original warranty is:

"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."

No way in hell they would of given you this.

 

[Magic Carpet]

Likely, XFX won't appeal. Not worth the effort. Lesson learnt. No point to gloat, though.

 

[Ferzerp]

Based on the quoted passage, you're probably looking at a 50/50 chance for any given court to interpret the warranty either way.

Not when you take in to account that the company later created a different warranty that explicitly allowed for them to.

And then when you take in to account that they tried to retroactively apply that warranty to his purchase, they aren't going to be given the benefit of the doubt.

 

[Ferzerp]

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

It's more that I'm keeping my language precise because the topic requires language that isn't open to interpretation. If that means I'm "[trying] to sound like one" so be it.

 

[chimaxi83]

It's more that I'm keeping my language precise because the topic requires language that isn't open to interpretation. If that means I'm "[trying] to sound like one" so be it.

I think that was his way of saying "this is now above my head, I no longer have a retort"

 

[railven]

Wow this thread was interesting...

I wonder where people would side in the whole laptop debacle - was the replacement proper?

Anyways, this thread really turned sour. I'd have to openly say if I were in the OP's shoes I'd have not let them walk over me either.

There was a similar thread (somewhere) about a user who wanted a GeForce 9600 because he needed it for work (or something) and they kept sending him GTS 250's that were broken too.

Glad my cards rarely fail and when they do the people I bought from quickly remedy my issues.

 

[Ferzerp]

I wonder where people would side in the whole laptop debacle - was the replacement proper?

Really depends on the wording of the warranty. They can always go above and beyond what they've agreed to, but never below.

 

[railven]

Really depends on the wording of the warranty. They can always go above and beyond what they've agreed to, but never below.

That's why I said I wonder how people would respond. The lawsuit was a classaction, so a lot of people actually got "below" what they originally had. The laptop that was distributed wasn't very good at anything.

But, not trying to make this thread go any more OT. Just that it seems a lot of people have different interpretations of "made whole" and if other's don't agree with it, suddenly they are exploiting a company and the cause of companies failing/ammending their warranties.

 

[Ferzerp]

Yeah, that reaction is interesting considering that the OP didn't really attempt to defraud XFX in any way. On the contrary, it was the other way around.


That's the problem with giant class action suits. The outcome is never favorable to the members of the class. They're sort of a joke. However, you're always free to exclude yourself from the class.

 

[Imp]

It's more that I'm keeping my language precise because the topic requires language that isn't open to interpretation. If that means I'm "[trying] to sound like one" so be it.

Actually no... legal language, in civil court in common law jurisdictions at least, is open to interpretation with everything factored in including the situation, contract, event, and all other relevant matters. The "intent" of a contract clause matters, and in a civil case, it would involve making the OP "whole". Whether XFX did that is up to the judge/jury - but that's "real" court.

My profession requires that I be trained in contract law to cover my ass, which is very very limited legal training, but still more than the average Joe probably.

And lawyers bill at $500/hour so it was cheaper to just give him the money.

Yeah, that reaction is interesting considering that the OP didn't really attempt to defraud XFX in any way. On the contrary, it was the other way around.

Problem is a lot of people don't think XFX defrauded him and he's being unreasonable. Dude starts a new account on a forum to brag... Window into his character.

 

[taltamir]

Problem is a lot of people don't think XFX defrauded him and he's being unreasonable. Dude starts a new account on a forum to brag... Window into his character.

They did defraud him, and he is being unreasonable.

First they defrauded him when they claimed the new warranty wording applies to him even though he bought it under the old wording.
Then they defrauded him by claiming he signed a waiver which he didn't sign.

He himself doesn't call either of those things fraud though, he thinks that is bait and switch (which is a different type of fraud).

Everything HE calls fraud is perfectly legal stuff. He makes a bunch of utterly nonsensical statements about the law that are all wrong. He won the case but he most likely doesn't understand WHY. Like his ridiculous claim that if they replaced his card with a different serial numbered card of the exact same model, while any individual component of HIS card was salvageable and wasn't, then they committed fraud.
My guess is that the biggest reason the judge awarded him the case is the issue of them trying to use the current wording of the warranty rather then original, and their assertion they have his signature on a waiver when they didn't (assuming he is telling the truth about that).

Then we get quotes showing that he was just money grubbing all along as seen below.

I think such a point could/should have been negotiated, hard to say how and where this broke down. My point is the OP went from

Whether the 260 is faster than the 8800 ultra is not only debatable but also irrelevant. The allowed remedy in our contract was the only thing relevant.

to

I might have accepted two water cooled 260's (216 core) or two air cooled 280's and given my good 8800Ultra back to them so they could use it for some other RMA.

So the power of the replacement cards was in fact relevant after all. XFX could've gone the 280s route and all would have gone more smoothly

He was probably being rude, obnoxious, and demanding the moon. And as a result an employee of XFX made an error of judgement and played hardball the wrong way (the wrong way being the mistake not the playing hardball).

 

[Zargon]

it was probably impossible for them to replace it as that card is about a 4 years old and they dont have of them

 

[railven]

They did defraud him, and he is being unreasonable.

First they defrauded him when they claimed the new warranty wording applies to him even though he bought it under the old wording.
Then they defrauded him by claiming he signed a waiver which he didn't sign.

He himself doesn't call either of those things fraud though, he thinks that is bait and switch (which is a different type of fraud).

Everything HE calls fraud is perfectly legal stuff. He makes a bunch of utterly nonsensical statements about the law that are all wrong. He won the case but he most likely doesn't understand WHY. Like his ridiculous claim that if they replaced his card with a different serial numbered card of the exact same model, while any individual component of HIS card was salvageable and wasn't, then they committed fraud.
My guess is that the biggest reason the judge awarded him the case is the issue of them trying to use the current wording of the warranty rather then original, and their assertion they have his signature on a waiver when they didn't (assuming he is telling the truth about that).

Then we get quotes showing that he was just money grubbing all along as seen below.


He was probably being rude, obnoxious, and demanding the moon. And as a result an employee of XFX made an error of judgement and played hardball the wrong way (the wrong way being the mistake not the playing hardball).

I dunno...just from reading this thread and seeing how people attacked his position before even asking questions, anyone in his position would also get defensive.

And this "rude attitude" frankly is a response to a "rude attitude" towards him. If I had to speculate I would honestly say the way this thread went down is most likely exactly how the whole ordeal went down.

He made a claim (his original post) and people jumped on him (XFX responded) and as the evidence came to light people still jumped on him and he slowly became more obnoxious. All in all, it seems course for par and anyone who is trying to rectify ill-services can probably agree they slowly start to lose their own cool too.

EDIT: A lot of people are nit picking his decision and overall the wording/verdict because it seems they either don't like the guy or...well I can't think of an or...They're basically even calling the judge a moron haha.

 

[GluteusMaximus]

For me to make use of an air cooled 260, I would have to sell my other good 8800Ultra, my two waterblocks then pay for another 260 and then I'd have two 260's in SLI that cannot keep up with my water cooled 8800s. And I'd be out the additional money, if any, to buy the second 260. So I pay more, get less.

Again, I might have considered taking two 280's and returning, to them, my good 8800. Unfortunately, this would be a loss to XFX since they see no value at all in the 8800's and two 280's are worth far more to them than a single 260. So given the choice of (1) Refunding the purchase price, (2) offering a trade for his two 8800's and giving him two 280's. (3) ignoring him and maybe he'll go away.

They chose option (3). That left me to force option (1) upon them.

I assure you I know exactly how and why I won my case. It took me 30 seconds to present my case. 30 seconds for XFX to present false evidence. 30 seconds for the Judge to read my copy of the warranty and 30 seconds for their copy. Then 1 minute for the Judge to squeeze the truth out of XFX about their warranty. They then lost all credibility in the Judge's eyes and any hope of winning the case.

 

[taltamir]

For me to make use of an air cooled 260, I would have to sell my other good 8800Ultra, my two waterblocks then pay for another 260 and then I'd have two 260's in SLI that cannot keep up with my water cooled 8800s. And I'd be out the additional money, if any, to buy the second 260. So I pay more, get less.

I checked XFX's site, they had 3 models of the 8800Ultra and all 3 were shipped with air cooling from the factory. So this scenario is nonsense.

You could sell the 260 to buy a used 8800Ultra of any make, remove its air cooler, and attach your existing watercooling setup to it. You would have made money and gotten the same system back.

Or you could use the opportunity to upgrade while keeping your existing watercooling system on the 260 they sent you, buying a second 260 and potentially blocks (and selling your existing 8800Ultras) and been out of money but had HIGHER performance. (I don't know where you are pulling this lower performance nonsense)

Did you specifically explain this to XFX and ask them for a 260 compatible waterblock? (because you said you would have ONLY accepted a PAIR of 260s and even then only IF they had built in watercooling AND both were the version with extra cores)

What make and model is your watercooling system? and what blocks are you using. I want to check to see if the existing blocks were compatible with the 260 or if you would have needed replacement blocks.

 

[HurleyBird]

For me to make use of an air cooled 260, I would have to sell my other good 8800Ultra, my two waterblocks then pay for another 260 and then I'd have two 260's in SLI that cannot keep up with my water cooled 8800s. And I'd be out the additional money, if any, to buy the second 260. So I pay more, get less.

Except that XFX is in no way responsible for the fact that you bought water-blocks. You might as well expect Ford to take into account your custom paint job when you send your vehicle in for replacement -- not going to happen.

It's also not as if you bought your two graphics cards as part of a package. Your warranty covered one card, expecting them to replace both was unrealistic unless both were failing.

Putting aside the fact that a single faster card with more memory and more features is going to give a better experience than two slower cards in SLI, you could have just sold the GTX 260 for more than it would have cost you to pick up another 8800 ultra!

I assure you I know exactly how and why I won my case. It took me 30 seconds to present my case. 30 seconds for XFX to present false evidence. 30 seconds for the Judge to read my copy of the warranty and 30 seconds for their copy. Then 1 minute for the Judge to squeeze the truth out of XFX about their warranty. They then lost all credibility in the Judge's eyes and any hope of winning the case.

Assuming your account is accurate, that was their big mistake. If the XFX rep realized that the warranty had changed, he should have done the research into the wording of the original warranty, point out the vagueness that people here have taken note of, and make an argument towards the reasonableness of XFX's actions.

 

[railven]

I still don't get why people are arguing what is already done.

Clearly there was an issue with the warranty, and this is represented by even legendary warranty companies such as EVGA changing their wording. We can sit here and argue pointing fingers at this example as cause, also using this example in the opposite manner and realize companies have made some outlandish promises just to get you to buy their product. Hell I remember posts pushing Brand-X over Brand-Y because the warranty was better. And now all those that bought Brand-X a few years back when the warranty was Type-A some how got rolled into warranty Type-B because Brand-X couldn't sustain the policy? WHo's at fault?

The OP could have also just not bothered and not sued, and not got some satisfaction, and then if he wrote his gripes I wonder if people would say "oh man, you should have sued, clearly the wording is in your favor, man don't let them walk all over you, that sucks bro." It's just funny how we react when in the end it has little to do with us. Haha.

Telling him to sell his card would void his warranty since he wouldn't have their product anymore. He'd roll into a product without a warranty or possibly worse.

XFX should have just issued the refund, as their policy stated, when the customer clearly wouldn't have been satisfied with the replacement. It's funny that we're all saying he is a money-grabber when XFX is doing the same as he was. Issuing the GTX 260 would have cost them far less then finding him a replacement card (since they're probably none left) or giving him a refund.

 

[taltamir]

I assure you I know exactly how and why I won my case. It took me 30 seconds to present my case. 30 seconds for XFX to present false evidence. 30 seconds for the Judge to read my copy of the warranty and 30 seconds for their copy. Then 1 minute for the Judge to squeeze the truth out of XFX about their warranty. They then lost all credibility in the Judge's eyes and any hope of winning the case.

I explicitly said, in the post you are replying to, that the reason you won is because they were trying to pass off the current version of the warranty as the one you should abide by rather then the version that was when you bought the card.

However, until this post you did NOT make this assertion. Instead you made a bunch of wild claims about what fraud it is for them to replace cards.

Just understand that the reason you won is not because replacing a card is fraudulent, but because they tried to modify a document without the consent of both parties.

 

[railven]

Just understand that the reason you won is not because replacing a card is fraudulent, but because they tried to modify a document without the consent of both parties.

If you get technical, it is fraudelent because they tried to replace it outside of what the warranty dictated. Since the document they used to issue the replacement wasn't standing - anything afterwards is technically fraud, ie the replacement of the card.

He shouldn't have accepted the replacement card from the start if you ask me and escalated this from the get-go.

 

[taltamir]

If you get technical, it is fraudelent because they tried to replace it outside of what the warranty dictated. Since the document they used to issue the replacement wasn't standing - anything afterwards is technically fraud, ie the replacement of the card.

That's just misinterpreting what I said.

The use of a fraudulent document made THIS replacement fraudulent. It does not mean the very act of replacing a card in general with a different but better model is a fraudulent act in of itself. Its a legitimate act by itself which they attempted to do under fraudulent terms. (most likely by mistake).

I was countering his claim that replacing a card is fraudulent under old OR new warranty wording.

It could have even be deemed legitimate act by XFX under either old terms and they still would have lost due to trying to insist he should abide by new terms when he bought it under the old terms.

He shouldn't have accepted the replacement card from the start if you ask me and escalated this from the get-go.

He claims he never did, they just sent him a different card without mentioning it first. and I believe that.