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Gateway Customer Sues to Get His PC Fixed

Posted by Zonk on Sat Jun 09, 2007 06:19 AM
from the toss-the-tossing-toses dept.
Government The Courts Hardware News
prostoalex writes "The Sacramento Bee tells the story of an El Dorado resident who had to go to small claims court to get his Gateway PC fixed: 'Right out of the box, he says, the computer displayed scattered graphics and wouldn't work properly. He says he called a Gateway salesman five times and sent him an e-mail to get an authorization number to send the computer back, but his phone calls and message were never returned. Then, over the course of months, Sheehan said he called Gateway technical support dozens of times.' Gateway insists that by clicking 'Accept' on a customer service EULA when the computer was first booted, Mr. Sheehan has waived his rights to sue the computer manufacturer in United States courts. The Gateway EULA states that conflicts must be resolved via private arbitrage. Sheehan, though, argues that he never saw the EULA, because of the broken graphics. As such, he's not held to that agreement." Some connections between this and a discussion about a Second Life case we had yesterday.
+ -
story

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[+] News: Second Life Arbitration Clause Unenforceable 161 comments
NewYorkCountryLawyer writes "In a decision that could have far-reaching implications, a federal court in Pennsylvania has held that the California arbitration clause in the 'take it or leave it' clickwrap agreement on the Second Life website is unconscionable, and therefore unenforceable. In its decision (pdf) in Bragg v. Linden Research, Inc., No. 06-4925 (E.D. Pa. May 30, 2007), the Court concluded that the Second Life 'terms of service' seek to impose a one-sided dispute resolution scheme that tilts unfairly, 'in almost all situations,' in Second Life's favor. As a result, the case will stay in Pennsylvania federal court, instead of being transferred to an arbitration forum in California."
[+] Acer to Acquire Gateway for $710 million 222 comments
downix writes "On the way into work today, I heard about Acer buying Gateway. A bold move strategically, I wonder what consequences this will have for Gateway's employees and customers. As the purchase price was at $1.90 per share, those of us that purchased Gateway shares a few years ago are reminded just how far it has fallen."
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  • Yes... (Score:5, Informative)

    by evilviper (135110) on Saturday June 09 2007, @06:22AM (#19449591) Journal

    Some connections between this and a discussion about a Second Life case we had yesterday.

    And even more connection to THIS ARTICLE from yesterday:
    http://hardware.slashdot.org/article.pl?sid=07/06/ 07/2317239 [slashdot.org]

    • [_] Zonk is reposting for those who don't have the CowboyNeal option ,,, (original story [slashdot.org] posted by CowboyNeal).

      ... [_] Zonk is the new CowboyNeal, like orange was the new pink

      [_] Zonk uses a Gateway and can't see the stories

      [_] Zonk - "Hmmm this is a dupe story, I think I'll can it ... OMG Ponies!"

      [_] "What goes around, comes around, especially on /.."

      [_] This is a "Best of slashdot" repeat presentation"

      [_] "I didn't see the original story on my f***ed-up Gateway, you ignorant clod!"

      [_] There

      • Actually, it makes me wonder if the editors can read, period.

        Is there a "Mavis Beacon teaches reading comprehension" course on the web?

  • Zonk (Score:5, Funny)

    by PenGun (794213) on Saturday June 09 2007, @06:27AM (#19449613) Homepage
    He just posts here ... I don't think he reads the site much.
    • I have never seen a Zonk story that was good. Often dups, and very very often with additional comments or questions which are painfully insipid. I think people would like him better if, instead of trying to spur discussion, he would STFU. "It is better to remain silent and be thought a fool than to open your mouth and remove all doubt."
    • At this point, the last 16 articles have been posted by him, and he has posted all but one of the articles in the first page.


      Who decides which articles are posted, anyhow? Monoculture is bad, diversity is good, maybe the Slashdot algorithm would benefit from a reject() if $author == "Zonk"; statement.

    • Not a dupe! Yesterday's article appeared as scattered graphics and didn't display properly.

  • Bullshit (Score:5, Insightful)

    by nighty5 (615965) on Saturday June 09 2007, @06:28AM (#19449623)
    Some awesome legalise there.

    Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods. Well it is in Australia, I'm sure the US has similar laws to protect consumers.

    Don't accept this garbage - I'm glad his fighting for his rights to receive what was intended - a working product.

    • Re:Bullshit (Score:5, Interesting)

      by _KiTA_ (241027) on Saturday June 09 2007, @07:05AM (#19449777) Homepage

      Regardless if a user accepts a EULA, its actually against the law to unlawfully restrict their rights in tapping into some legal protection for sale of faulty goods. Well it is in Australia, I'm sure the US has similar laws to protect consumers.

      Actually... given the brazen attitude of EULA writers, I don't think we do. I know that EULAs are changed to be more consumer friendly in the UK and Australia, simply because if they tried half the shit there that they try here they'd get sued by the government, but they keep trying it here, so it must be at least somewhat legal, right?
      • IANAL, but my general understanding of a 'covenant not to sue' is that a covenant not sue that has a 1:1 relationship is likely to stand up in court, as it is a release of liability, at least as to the items enumerated in the covenant (i.e., you agree not to sue someone for product liability, but then trip on their sidewalk, you can still sue them for the sidewalk). But a covenant not sue that has a 1:many relationship is not likely to stand up.

        IOW, while someone agreeing to such a EULA may be limited in
      • #include <ianal.h>

        The elements of a contract are Offer, Acceptance, and Consideration. Once you've agreed to certain terms and money has changed hands, neither party can impose additional terms on the other. I know that argument by analogy is fraught with peril, but let's try this one on for size:

        I buy a new Chevy. My signature is on the purchase contract, I've handed the salesman a check and he's given me the keys. I get in the car, turn the key, and out of the dashboard comes an End User Lice

        • Re: (Score:3, Informative)

          by Scott Wood (1415)

          The only reason why software EULAs have any traction at all is that installing software onto a computer requires copying of copyrighted files to the hard drive. In the case of an integrated computer system, the software has already been installed. I take the position that any software advertised as part of the purchase is, well, part of the purchase. The legalities of getting that software onto the computer's hard drive have been worked out between the publisher and integrator are their affair, not mine.

  • It's been done for a long time... (Score:5, Informative)

    by iknownuttin (1099999) on Saturday June 09 2007, @06:35AM (#19449645)
    "We are at a point now where every large corporation that has the ability to say 'take it or leave it' is opting out of the civil justice system," said Cliff Palefsky, a San Francisco trial lawyer and expert on arbitration agreements. "Some do it in a straightforward manner. Others do it in an underhanded manner."

    The securities brokerage industry, stocks, bonds, etc.. has been doing this for decades. If you want a brokerage account, I don't care where, you have to agree to an industry arbitration. And some business magazine, I believe "Forbes", many years ago found that the arbitration panels are heavily loaded in the industries favor.

    I have mixed feelings about it. On one hand it sounds like everything is weighted in favor of the company and against the consumer.

    On the other hand, many times consumers cause themselves their own problems and refuse to take responsibility for them. Whether it be installing boards incorrectly themselves, or gambling on the derivatives market. I, for one, don't want to have to pay other's litigations, whether through increased product costs, or insurance costs.

    As Gateway tells it in court filings, the company replaced Sheehan's computer a few months after he first complained, and he kept both machines.

    Oh yeah, it sounds like, if Gateway is telling the truth, that this guy is trying to "game" the system and get a free computer.

    • many times consumers cause themselves their own problems and refuse to take responsibility for them

      This is a sad truth. Here on /. we see so much of this attitude "if I don't read the EULA it isn't valid for me". Try signing a contract without reading the fine print and see what a court of justice says about its validity.

      The true answer to obnoxious companies is, ahem, *the market*. I always read the EULA, if I don't agree with what it says I don't buy the product. If I can't read the EULA before I open th

  • :S... (Score:4, Interesting)

    by joe 155 (937621) on Saturday June 09 2007, @06:36AM (#19449647) Journal
    Despite the fact that this is such an obvious dupe...

    I wonder about EULA if there was no way that you could have read it, if it would still be taken as being binding (if it can be at all, but someone last time suggested they might be). For example if you were registered blind (which can include very poor vision, at least in the UK) and windows asks you to agree to a EULA, you can see just enough to see there is something on the screen but without a screen reader (which you would need to install after accepting the EULA), you would have no idea what was going on. Here it would seem like randomly pressing things until something happened is a good solution. So you could accept even if there was no way you could have known...

    In this situation would they not be in violation of disability legislation?
  • i didn't read /.'s EULA. my peecee was broken.

    now, can i sue CmdTaco beacuse of this dupe ?

    • Class action for millions, I am in. We should make billions and billions.

      Problem with me, I skim digg for stories, since they have tons of crap over there. I now can't tell a dupe from a story I saw on digg. I just assume I saw it over there, not over here. dejanews.

      How difficult is it to get two editors to sign off on a story that is going on the front page?

      Why don't the subscribers notify the poster so they can trash dupes before they go to the general public?

      Why have we been asking the same questions
      • My favorite part is that the blurb links to a printer-friendly version of the article, which happens to bring up a printer dialog for me when it loads. Thanks for checking the links, Zonk!

  • Arbitrage? Perhaps not. (Score:4, Informative)

    by richg74 (650636) on Saturday June 09 2007, @06:57AM (#19449747) Homepage

    The Gateway EULA states that conflicts must be resolved via private arbitrage.

    I suspect it states that conflicts must be resolved by arbitration. "Arbitrage" is primarily an economics term; my dictionary defines it thus:

    The purchase of securities on one market for immediate resale on another market in order to profit from a price discrepancy.
    Both words do ultimately come from the same Latin root, though ('arbitrari', to render a judgment).
  • EULAs are not meant to be read.
    Seriously. Have you? Can you keep a straight face and tell me you read all those legalese crap? I didn't.

    First of all, it can be summed up into "We may do everything, you may do nothing, essentially, you're a dork for using our software". And second, almost all of them violate our consumer protection laws.

    So, why bother wasting time?

    • Your second point brings me to a question: Is it possible to have a document remove your legal rights to anything? Will an EULA, which is not even signed, you just click a button, have more value in court than the general consumer rights? If I put this in the extreme, is it possible to have kill someone if you have him sign a paper which states that he discards of all his rights to live? Would that be acceptable. I'm all in favor of private arbitrage to lessen the burden on the already overloaded justice sy
      • See, that is what I don't understand about anything electronic that doesn't actually have you write your signature to say "I Agree" and then expects you to in some way be legally bound by it. If the guys computer had not been messed up, then how do they know that he actually agreed to it? How do they not know that he had the kid from down the street come to his house and set it up for him, and like any half-sane person, just clicked OK on the EULA before the guy even saw it since the guy would have to do th

    • Re: (Score:3, Interesting)

      by tomstdenis (446163)
      It's worse than that, most EULAs are only visible AFTER you bought the software which pretty much renders them invalid.

      It'd be like signing the lease for a new car, then 5 mins when you get into the car you find a notice in the glove box saying "you also can't sue us when you realize this is a lemon."

      EULAs are not part of the purchase agreement and are therefore not binding.

      Tom

    • Re: (Score:2, Funny)

      by Anonymous Coward
      Zaguar, you asshole. You thought you could copy +5 comments from the original story and boost your karma? Well, I just modded you down.
      The editors are lazy fucks for not even checking this, but sadly I can't mode them down... but you're worse, trying to exploit their stupidity

      http://hardware.slashdot.org/comments.pl?sid=23775 1&cid=19431651 [slashdot.org]

      EULAs are not meant to be read
      (Score:5, Insightful)
      by Opportunist (166417) on Fri Jun 08, '07 08:03 AM (#19431651)
      Seriously. Have you? Can you keep a straight face

  • Or have I accidentally agreed to some EULA that restricts me to only using arbitration for settling my complaint about too many duplicate articles?

  • One sided contracts aren't enforcable (Score:2, Informative)

    by Anonymous Coward
    A contract is unenforcable unless both parties get some (roughly equal) benefit.

    "The Uniform Commercial Code which is followed in most American states has specific provisions relating to standard form contracts. Furthermore, standard form contracts will be subject to special scrutiny if they are found to be contracts of adhesion.

    [edit] Contracts of adhesion

    The concept of the contract of adhesion originated in French civil law, but did not enter American jurisprudence until the Harvard Law Review published a

  • How does this benefit gateway ? (Score:5, Interesting)

    by Alain Williams (2972) on Saturday June 09 2007, @07:29AM (#19449861) Homepage
    Cost of fixing the bust PC: $200

    Cost of lost sales due to bad publicity: $200,000

    How does that make sense ?

  • Layman's terms (Score:4, Funny)

    by jadin (65295) on Saturday June 09 2007, @09:27AM (#19450413) Homepage
    I installed software once that had the best EULA ever. While it did have the "legal speak" version you had to agree to, it also had a recap in layman's terms. Made it very very easy to see what you were agreeing to.

    Example (not a real example, but you get the idea) :

    1.1 Installation and use. You may install, use, access, display and run one copy of the Software on a single computer, such as a workstation, terminal or other device ("Workstation Computer"). The Software may not be used by more than one processor at any one time on any single Workstation Computer.

    Becomes

    1.1 You get one copy for one computer.

  • Kids (Score:5, Funny)

    by 7311587 (755664) on Saturday June 09 2007, @10:04AM (#19450665)
    I get my kids to click EULA's since contracts with minors are not valid.

    • Dupe tag, anyone? (Score:5, Interesting)

      by evanbd (210358) on Saturday June 09 2007, @06:43AM (#19449683)
      What happened to the "dupe" tag? Why doesn't it show up any more? Obviously I'm not the only one to notice, as it seems to have been replaced by "duped." So what happened to it, and all the humorous tags -- haha, itsatrap, etc. What gives?

      • Re:Dupe tag, anyone? (Score:5, Informative)

        by asninn (1071320) on Saturday June 09 2007, @06:58AM (#19449753)

        From http://slashdot.org/faq/tags.shtml [slashdot.org] :

        Use dupe only when a Slashdot story is an actual duplicate of a previous Slashdot story, offering no new information. [...] These tags will alert us to problems immediately (but they won't show up on the top tags list).

        Not sure about the rest (like "haha" etc.), though.

        • Re:Dupe tag, anyone? (Score:4, Insightful)

          by gEvil (beta) (945888) on Saturday June 09 2007, @07:37AM (#19449889)
          These tags will alert us to problems immediately (but they won't show up on the top tags list).

          And what happens once the editor has been "alerted"? My guess is they might go "Oh, whoops" and then move along to go post the next dupe...
            • Oddly enough, the "duped" tag shows up for me - slownewsday, court, displays, hardware, duped (tagging beta)

              What's so odd about that? Duped is not the same as dupe.
    • If you dont accept it, you can get a full refund ( supposedly ).
        • Its too late to return it? What store doesnt have a return policy? ( sure, often its only 30 days or so, but it exists )

          If you read the EULA's they normally state something like "if you dont agree to this, return to your place of purchase for a full refund".

             
          • Unless, like most corrupt shops they add "re-stocking fees."

            Though for things like Laptops most giant retailers seem to be somewhat decent about returns/exchanges. Try that at the smaller shops though.

            Tom

          • Its too late to return it? What store doesnt have a return policy? ( sure, often its only 30 days or so, but it exists )


            Any software retailer. The moment you open the plastic shrink-wrap on the box(a requirement to get to the EULA) you can't return it.

            • So why is it that the only way to reject an agreement by the hardware manufacturer is to cancel the contract with the shop you bought it from?

              At least in the case of broken/faulty items the store then returns the item to the manufacturer for a refund. I'd be interested to find out if the store is able to do the same when it's returned because someone doesn't like the license rather than because it's actually faulty. They "should" be able to, no reason for the store to have to take a loss and sell the item

    • Re:EULAs for hardware AFTER you've bought it? (Score:5, Interesting)

      by supersat (639745) on Saturday June 09 2007, @06:55AM (#19449741)
      Not only that, but they have no way to know if you've accepted the EULA.

      AFAIK, Gateway doesn't offer Linux as an OS option. If you want to run Linux, you'll probably boot to a Linux install disc the first time you turn on your machine, bypassing any EULA and nuking it in the install process. I suppose they could build it into the BIOS, but if they combine all of the EULAs into one, then you'll be forced to accept them even if you never use the software the EULAs cover.

      Really, the proper thing to do is make these conditions part of the terms of sale, made known to the customer BEFORE the sale is made.
    • The limited enforceability of shrink-wrap contracts (which are somewhat different from EULAs; this case is about the former) that we do have stems from a desire to avoid having to force you to read a long contract before you buy anything online or, even worse, over the phone. There is at least a rational argument here, and there are numerous legal theories that can be applied to support enforceability. I tend to disagree, but you can't just say "this is retarded" and think you've won the day.

    • While the EULA discussion is valid, I think there is way more to the actual case than this - I can't see a corporation willing to go to court for a PC that was allegedly defective right out of the box. I bought a Gateway laptop in 2005 that developed a cracked hinge almost two years after I bought it (without the extended warranty), and when I contacted Gateway to have them repair it, fully expecting to pay, they informed me that there was a design flaw and cheerfully fixed it for free in less than two week

      • Re:So, I mis-modded (Score:5, Funny)

        by Eudial (590661) on Saturday June 09 2007, @08:13AM (#19450029)

        You know, you can opt out of the moderation system. Just click on options up the top, and then homepage, scroll down to

        [x] Willing to Moderate

        and uncheck the box.


        O, I am willing to moderate. It's just I accidentally cranked open a huge canister of -1 troll on the wrong post. Figured I didn't want to spoil the poor guy's karma.
      • I tried ordering a recovery cd set from them just recently. After being forwarded multiple times, the person at the end of the line tried to help me troubleshoot the problem, even though I clearly said just send me the damn cd, the hard disk is toast, here's my credit card. 2 hours later, they agree to send me the cd, and I gave them a credit card number, and I eventually got it, but no invoice. They tried to explain how their accounting system couldn't "do that." All the while acting like nobody would ever

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