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How To Take a Big Vendor To Small Claims and Win
snydeq writes "Gripe Line's Christina Tynan-Wood offers good news for those harboring grievances about faulty software or unfair licensing practices: it is in fact possible to take a big vendor to small claims court and win. But, as one woman's fight against Adobe demonstrates, detailed evidence and a deep understanding of the laws in question are essential to obtaining justice against big vendor lawyers. 'Evidence is the key factor,' explains one legal expert. 'Often the evidence people present does not show what they think it does. And they fail to make themselves aware of the rules of evidence so they can introduce any evidence they do have in court. These companies will have attorneys and those attorneys will use the rules of civil procedure to take advantage of your lack of knowledge.' Moreover, they will spare little expense no matter the magnitude of claims brought against them. 'The lawyer for Adobe tried an "end-user is stupid" argument,' explains the woman who took on Adobe over a software license she never had the privilege of agreeing to. 'But he gave that up when he learned I wasn't a lame-brain home computer user. I have a software engineering background and worked for Sun Microsystems and Fidelity Investments tech group.'"
It is in your best interest to have all/most of the evidence of your victimization in your control. Think of it as the company pleading the fifth amendment regarding the correspondence that proves their fault.
Just like it's usually a waste of money to pay UPS or USPS to insure your package against their negligence.
It's a print link. Yay poster!
IANAL but I have been told by many who have been in SCC that the company can not send an attorney to represent them. The point of small claims is to give the average person who feels they been taken advantage of at a fair amount of money (low) a chance to recover it. That is why a friend of mine pointed the fact out when a company he went against sent a lawyer and they were forced to send a representative other than an attorney. I've been told that pretty much anyone who WORKS for the company who isn't an attorney can represent them.
.333 in case victories could have easily quashed my actions from the start.
:)
I'm currently in an appeals court for a case I started in early 2009. I plan on writing about my experience to help out those EXACTLY in my situation. Although I've made many errors along the way, I've learned a lot on the fly and have been able to use both my errors and knowledge gained to help me out immensely. Everyone who knows about my case has come to the following conclusions:
1a) The defendant's attorney saw I was representing myself without an attorney and figured ez win (pwned).
1b) The defendant's attorney never took me seriously and figured ez win (pwned).
2) The defendant's attorney figured that with the minimum amount of "proof" (evidence) she could successfully defend her client in the proceedings.
3) The defendant's attorney doesn't like what their client has done and is in fact helping me out.
4) The defendant's attorney is actually so bad as an attorney, that an unskilled/untrained/inexperienced person in law is able to beat her even though any other attorney with an average of
So now with an order in my favor, we're in the appellate court to see what they have to say about the case. I also have a subsequent ruling in my actions against the defendant in a related action. But none of it has been easy, though many made it seem like it would be. There are many other factors that have contributed to my success thus far, notably other attorney's in the court room who find my case interesting. One who broke it down to me: "you have no case." But they also gave me some advice that "might' have helped me out.
Now in the appeals court, I am also representing myself. I had enough time and even requested an extension of time to complete my reply brief. As it turns out, it's not as easy to do. Sure, writing it was easy, nothing I haven't done before. But there was a very specific set of rules to follow and this is what took up time. With a page/word limit and a lot of rules, I would say that it's technicalities took more time than looking up laws and relevant cases. Understanding the laws are easy compared to writing the brief. I ended up taking a week off of work for a total of 10 consecutive days of about 12 hours a day minimum to complete it by the deadline.
I might have gone a bit off course there but the point is, for those (relatively few) of us who have a little something upstairs, we can still successfully navigate the legal system. You just need a LOT of determination, a lot of time, a little bit of money, a good case/argument, and more than anything: patience. I've been told by court officials who took part or have helped in my case that the judge had allowed several things that most other judges wouldn't have. The reason I've been told is because of my inexperience and self-representation. We'll see how I fare in the appellate court, but I'm not worried about biting the bag because I now have 16 months under my belt of playing an attorney.*
(* Might be worth mentioning why I didn't use an attorney. I know I'll need an attorney for the 2nd part of my actions (knowing the law isn't enough to favor me) so I am saving my money for that. But also because this is something that's huge in my life and means a lot to me, so there is nothing better worth dedicating myself to. And with a nick name like Socrates (I can't even get my friends to say my real name!) I have to represent!
My abilities are only limited by my imagination
We're lucky here in Australia - or at least in the states that i know about - because we have small claims (or equivalent) tribunals. The rules of evidence don't apply and the parties aren't necessarily allowed representation by a lawyer (particularly if the other party can argue convincingly that it would disadvantage them - which shouldn't be too hard).
In all courts, however, the judge (or equivalent) has an obligation to assist anyone who's representing themselves.
Good to know all you need is a 4 year bachelors in software design and 10 years in the industry to win a $1500 lawsuit! Keep up the good work.
moox. for a new generation.
All sorts of agreements are binding without that. Legally, buying something from a shop is a contract. The act of me giving money and the shopkeeper accepting it is acceptance that I have exchanged money for the item in question.
Generally, if you act in a manner that makes it clear that you have accepted an agreement, then you've accepted. Signing a contract is just a form of proof. It shows that you have most likely read and understood the agreement.
However, there are various laws that may override that which you have 'accepted' - the constitution, the sale of goods act, contract law... That is why you need a lawyer. You need someone who knows the big picture.
Excuse me, but please get off my Pennisetum Clandestinum, eh!
They won't. I had a dispute with Dell a few years back over a part they insisted I purchased (I hadn't). Spent nearly a year writing letters, insisting I did not purchase the item. Eventually they sent me to collections. I had had enough and filed a SCC action. Within three weeks the charges were reversed, the collection agency was called off, and they sent me a check to cover 'credit repair costs'. No lawyers, no courtroom appearances, no nothing...
I judt got a nre Kinesis keybiartf so please excusr ant egregiou typos.
The fact that this is newsworthy and the law is such an enigmatic set of rules and ritual demonstrate just how flawed our democratic system is. How can you call anything remotely resembling justice if the playing field is so uneven that it's newsworthy that someone was able to take a big corporation to small claims court and win? Police often say that ignorance of the law is no excuse, despite very frequently either flat-out lying about what the law is or misunderstanding it themselves--remember, they aren't lawyers, and lawyers often get it wrong too because it's a convoluted jumbled mess of precedent and sometimes vague statutes. The law is a giant, incomprehensible tangle of mumbo-jumbo, with legal precedents being treated like magic spells (uttered in Latin, no less). And with this structure, who wins? Why, the ones with the resources to hire experts...!
In the words of a certain insanely underrated and clever kid's cartoon show from the 90's (Rocko's Modern Life): "You can't fight City Hall! You can't fight corporate America, they are big and we are small, you can't fight City Hall..."
All jurisdictions that I know about have a small claims court. Any claim under a certain dollar amount goes there. There's no jury, just the judge, and normally no lawyers. The trials are not conducted by all the rules of normal trials because it is just two people settling a dispute. The TV court shows like Judge Judy are such a court. Normal rules of evidence, testimony, and so on don't apply and the judge often plays a fairly active roll in questioning. The trials are usually short, lasting only a few minutes. filing fees are low, often just $20 or so.
What the dollar limit is varies by jurisdiction, but it tends to be a couple thousand dollars. So if your neighbour borrows your electric drill and destroys it, small claims court is the place you'd go to try and get him to pay if all else fails. However if he knocked down your house, well that would have to go to regular civil court to get what it was worth.
So such a thing does exist and I can't imagine that a company would, as claimed, "spare no expense" to defend themselves in one. Since damages would be capped by statute at a couple thousand bucks, it wouldn't make sense.
In particular if you are a "software engineer" which to me means programmer.
The skills of system administration and programming are distinct, though related in some ways. Just because you can do one does not mean you can do the other. As an example I am a systems administrator and it would seem a successful one (my boss likes my work and I've had my job for many a year). However, I can't program. I do know the basics of programming, I understand the concepts fairly well actually and know the syntax of several languages, however I do not do a good job of actually putting a program together. It is not a skill I have. That I can diagnose and fix software problems doesn't mean that I can write the software.
Well I've found the opposite is very often true. I know many computer programmers that suck at the systems administration. They can't troubleshoot even simple hardware problems, they get viruses on their system, they don't know how to set their OS to do what they want, etc. They can be downright disastrous as computer users, despite being able to develop software. They understand how to plot out the flow of a program and turn that in to a language the computer can understand. They do not understand the big picture of how all the hardware and software interacts on a live system.
So I can perfectly well believe that a software engineer with plenty of experience could get thwarted by something that, from a systems administration point of view, is fairly simple. Unfortunately many programmers are problems because they seem to think that since they can program, that means they are good with computers in every way. After all, they write the software, how hard can the rest be?
The whole point of a small claims court is meant to be that it is for situations where employing a lawyer isn't reasonable. You have a claim of, say 500Euro and the company won't pay. A single hour of lawyer's time is going to cost more than that.
If you take it to the small claims court, the risk to you is extremely limited (in most places, just the nominal cost of registering the case + your time involved).
However, it seems like in Massachusetts at least, you still need to take lots of care. In other places, I understand that the judge has a duty to help the "little guy", overlook small mistakes and, for example, explain to you why your evidence can't be admitted.
=~ s,(.*),<sarcasm>$1</sarcasm>,g if any_point_you_wish();
This article is completely horrible. There's absolutely NO description about how EXACTLY this person won against adobe. All the advice given is "be prepared" and "research the law". Well no fucking shit, of you should read up on the law and be prepared when going to court. That's the entire fucking point.
What tactics did she use? What the fuck is an "end user is stupid argument"? What piece of the law did she use to win? What did she argue made the license null and void?
This article doesn't give me any hope about winning lawsuits against big tech companies at all. It's actually quite discouraging. There's no real information in the article which leads me to believe that perhaps this was actually a fluke and this person won due to something stupid. (i.e. the lawyer didn't show up to court because he mismarked his calendar.)
-1 disagree is not a modifier for a reason. -1 troll, flaimbait, redundant, overrated are NOT acceptable substitutes.
Taking them in and getting a judgement is the EASY part.
Actually getting your damages/awards from them is where it becomes tough.
Chas - The one, the only.
THANK GOD!!!
To put it into a car analogy;
System administrators know how to build roads to make it easier for vehicles to move around. Programmers know how to build vehicles that can use the roads.
You can have vehicles without decent roads, but the ride wouldn't be smooth. You can have roads without vehicles, but that would be pointless.
Programmers may not get the big picture of how all hardware and software interacts to form an instable computer system. System administrators don't get the big picture of how harware and software interact to form a stable information system.
From a programmers's point of view, an ideal computer is one with unrestricted access. From an admin's point of view, an ideal computer is one with the power turned off. The "big picture" is somewhere inbetween.
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There are two points I take exception to:
(1) The title of this post, which should read "I Took a Big Vendor To Small Claims and Won". The product isn't named. The OS isn't named. The instructions from tech support aren't given. All it really says is "Oh yay it isn't easy and you have to be precise." You have to bring ample evidence to court and make yourself aware of how it will be interpreted? Oh my.
(2) The penultimate sentence: "Needless to say, I have not bought any other Adobe products. Even opening a PDF makes me nervous!" Now I'm not exactly the grand proselytizer of Adobe products - but I am aware that a large number of people are using their products professionally day in day out. This blanket statement implying that "Adobe == shit" just casts, to me, a rather dark shadow on the not-being-a-lame-brain bit further up.
yes, we have no bananas
She delivered a preponderance of evidence to show that she saw no license agreement and therefore was not bound to its terms.
1. Not on the box.
2. Not in the box in printed form.
3. Software didn't install enough to show the EULA.
4. Showed that other people have had the same problem.
Adding to this, she also logged her time spent on the phone to show that she made every effort to make it work.
Many people might say "hey, I understand point number 1. They would need a HUGE box! But why don't they include a printed EULA and why doesn't the EULA come up BEFORE it installs?" Simple. The slippery lawyers want to be able to change the EULA on the fly. It could be used to prove any number of things including the fact that you were able to install it since completion of the install would be followed by an EULA.
The article inexplicably fails to mention the failing product. Was that Adobe's idea? Was that the article's editor's idea? Useful information was omitted to prevent advertisers from pulling their ads I suspect. But, if I understand it correctly, there's a chance that this is a matter of public record. Anyone in Mass care to do a little digging to find out the details?
Why you people bother with EULAs in the first place? Now, I don't know with product it was but since the woman doesn't suffer any business loss I would think it was just Adobe Photoshop or something else. I didn't agreed to any kind of EULA for over a year and I will certainly not in the foreseeable future. Why? Because I'm using Free Software and there are plenty of it available. As a side effect, these costs you nothing, too.
Now, granted, someone who needs a software to do his work maybe needs to buy a copy of Photoshop or MS Office. But 99% of the people out there just don't need it. Save the EULA BS and save your money. The last time I red an EULA I just couldn't agree to it because it's just so full of BS; how can you agree to any EULA and pay them money for it at the same time? You have an alternative, maybe not always, but often.
http://www.mueller-public.de - My site http://www.anr-institute.com/ - Advanced Natural Research Institute
This story is completely untrue and is using a single example to claim that all cases are like this. In most areas, the court papers are under $100 (something like $25 to $50) for small claims. You do not need a lawyer. There's no reason to even talk with one. Most of the time, companies will settle with you, especially if they do not have a corporate headquarters anywhere near you. For example, Toyota Financial and I had a disagreement over $250, not a lot of money, but the principal of the matter was important to me. Hotels in my area cost about $250 a night + rental car + 3 meals/day + flight + wages = it costs way more money to just figure out the issue and solve it than to send a lawyer to represent your company over $250. As soon as I called their legal department and said I was on my way to the court house, they were incredibly interested in helping me out. Toyota is not the first. I've had to threaten two other companies with law suits. None of them have gone farther than a call with the legal department.
well, the EULA probably has the standard 'no warranty' terms. Adobe probably wanted to hide behind that to avoid the otherwise default position that you have to sell a functioning product; the plantiff showed that since it hadn't been displayed, it wasn't agreed to, and didn't count, leaving Adobe holding the bag for having sold a non-functioning product.
FGD 135
a signature is only required for real estate and transactions that will take longer than a year to complete. Obviously, it's useful to have a signed contract if there's a problem. but at it's heart, a contract is two people (or companies) making an agreement.
Do you even lift?
These aren't the 'roids you're looking for.
The TV court shows like Judge Judy are such a court.
Game shows like The People's Court and Judge Judy technically aren't small-claims court; they're binding arbitration held on a set that looks like an idealized small-claims courtroom.
The biggest problem is that licencers want to tell you you're buying the product in big letters, but put in small print that you're actually only buying a licence to buy the product. How often do you see the advertising "Own the latest film on DVD" when you're really owning a licence to view a copy of the film on DVD?
Whilst selling you the film, they switch the film for a licence to view it.
A rose by any other name would smell as sweet;
A chrysanthemum by any other name would be easier to spell
Since it is a court proceeding, the judge's opinion should be published. Unfortunately, we kind of need to know what state and district the case was filed in. Plus, the rules of Small Claims Court are somewhat fast and loose. In some states, like Pennsylvania, a small claims court judge (also known as a district court judge) is not even required to have a law degree and is an elected position. In fact, I knew someone running for this position that only graduated from high school. Ostensibly, they are given some training in the field of rules of evidence. Still, when you think about the above situation, your odds are pretty long on winning and it will not take much technical jargon to confuse a judge into siding with big brother.
Let me explain how:
Small claims court - ALMOST UNIVERSALLY WILL NO LAWYERS BE ALLOWED IN ONE IN THE USA.
"These companies will have attorneys and those attorneys will use the rules of civil procedure to take advantage of your lack of knowledge"
So much for that person being a legal expert. No wonder they're not named, as they'd be found and likely disciplined by the real bar.
Still waiting on Serviscope_minor to wake up to fucking reality and realize that Jessica Price isn't going to fuck him.
Lawyers are not permitted in Small Claims Court.
Mod me up/Mod me down: I wont frown as I've no crown
Back in 2004 Microsoft paid me $850 for my copy of Office 97 Professional because it was shipped to me on floppy and by 2004 the software would no longer install, calling me a thief.
:)
It turned out that the floppy version had a lock built in to it that would kick in after a certain number of installs and by 2004 Microsoft no longer shipped software in floppy format.
I checked out the printed Software License and it made no mention of this install limit or the lock mechanism. Microsoft offered to ship me a replacement CD, but the notebook I was using this on had no CD ROM drive. At this point I demanded a full refund and Microsoft paid me that $850 in exchange for Disk 1 and the Software License.
No court needed.