Visions of a 'long and winding road' chock-a-block with defective GE
refrigerators being delivered to landfills, somehow doesn't quite jibe with GE's
Ecomagination campaign. (Even though the Greenest of us can still
appreciate the metaphor.) So imagine our surprise to discover that the
road has forked! Turner v General Electric was being
appealed to the US Court of Appeals for the 11th Circuit (Atlanta, GA) while a
new and separate refrigerator class action suit against General Electric was filed:
Kitchener v General Electric. [Click
HERE for our reaction to these
recent developments.] Life is never
boring!
For the benefit of those who may be visiting our site for the first time, yes
there are TWO defective refrigerator class action lawsuits against GE.
Class Action 1: Turner v General Electric
Filed: April 29, 2005
Settled: December 22, 2005 [click HERE for list of models included]
Settlement Approved: September 13, 2006
Appeal Filed: October 6, 2006
Appeal Withdrawn: October 27, 2006 [GE decided to replace Mr. Davis'
refrigerator.]
Class Action 2: Kitchener v General Electric
Filed: October 13, 2006
Includes all GE side-by-side refrigerator models manufactured since 2001.
Currently there is no exclusion of qualifying models that were
included in Class Action 1.
For the benefit of those who are veterans of Turner v General Electric
here is the latest information:
On September 13, 2006 "With some modifications", the Court
"conditionally" granted Final Approval of the Settlement,
Certification of Settlement Class, and Approval of Attorneys' Fees and
Settlement Class Representative Incentive Awards. [Editor's Note:
It is not yet clear to us exactly what the modifications or conditions are.]
If you own (or owned) one of the 304 models listed in this lawsuit -
whether or not you received Notice or knew about this class action - you are
a Class Member and are bound by all the terms of the Settlement Agreement.
Up to and including the final Fairness Hearing on August 21, 2006, both the
GE Attorneys and Plaintiff's Attorney were emphasizing the leniency
of enforcing Claims deadlines. But since the Court published its
decision, we have received communications from consumers
clearly describing that GE has shut the door on claims.
In response to those Members who are seeking answers and remedies at this
late date, we have created a Guide with suggestions and contact information
for you.
On October 6, 2006 Brent Davis (Class Member and Settlement Objector)
filed a Notice of Appeal to the US Court of Appeals for the 11th District in
Atlanta. Apparently, 'the fat lady hasn't sung' yet.
On October 13, 2006 a new class action lawsuit was filed: Kitchener et
al v General Electric.
On October 27, 2006 Brent Davis withdrew his Notice of Appeal to the
Court after GE agreed to replace his refrigerator after all.
Apparently, 'the fat lady has sung'.
These events are rather bitter sweet, and the urge to say, "We told
you so" is overwhelming. For more than a year we've been saying that the
defects were wide spread and not limited to the 304 models
manufactured in 2001 and 2002 at the Bloomington Indiana factory (included in Class Action 1). Omission of refrigerators manufactured in
Mexico and even more models from the Bloomington plant, model years 2000, 2003
and 2004. In fact, these defects began appearing in models manufactured in
mid 1999! Even models manufactured in 2005 and 2006 installed as
replacement units under the terms of the Settlement Agreement, are
responsible for creating long-term, warm and fuzzy relationships between GE Techs and
consumers.
Reality Check
Whether you were a member of the first Class Action (Turner v General
Electric) or are a member of the new/second Class Action (Kitchener et al v
General Electric), there are a few harsh realities you should
understand.
GE was allowed to administer
their own Notification Program as well as administer claims. (The fox
was allowed to guard the hen house.)
In Class Action litigation,
Special Masters have been successfully used to facilitate negotiations about the
substantive terms of the settlement, setting up claims procedures,
attorneys' fees, and administer distribution of funds and/or benefits.
Class Action 1 did not utilize
this most valuable legal stipulation that could have been requested by
Plaintiff's Attorney or imposed by the Court.
As a result:
Many who participated in Class
Action 1 and took the time to dig up receipts and records substantiating
their claims, complete and submit valid claim forms, and follow-up with
telephone calls to the GE Moisture Settlement Office were denied their
claims by GE.
Untold numbers of Class Action 1
Members who never knew about the lawsuit and were unable to participate in the
settlement process, are forever barred from any legal remedy or restitution from
GE or any of GE's Agents. (i.e., distributors, retailers, etc.)
The volume of emails we are still
receiving from frustrated, angry, and confused members of Class Action 1 is
staggering. But at this point, all we can do is sympathize.
The only recourse that we see left
to Class Action 1 members, is to go back to the retailer or builder they
purchased their refrigerator from and demand that the seller stand behind the
product they now know was defective when they sold it.
Unless the Court opens the door to
allow Class Action 1 members to participate in Class Action 2 (which is
unlikely), Class Action 1 members are basically 'βlεερεεd'.
The best predictor of future
behavior is past performance. With this in mind, Class Action 2 members
should consider the following:
The
Defendant in Class Action 2 is the same as Class Action 1.
The Plaintiffs'
Attorneys in Class Action 2 are the same as Class Action 1.
The nature
of Class Action 2 is the same as Class Action 1.
The product
involved in Class Action 2 is the same as Class Action 1.
We supported Class Action 1
unconditionally. At face value, we thought the Settlement was generally
fair and equitable. We provided easy and convenient links for consumers to
contact Plaintiff's Attorney and GE's Moisture Settlement Office. We even
provided the Claim Forms to download and print. We encouraged people to
register and participate in the Class Action litigation.
But if we
knew then what we know now . . .
We would not have accepted the
verbal and written assurances of Plaintiff's Attorney that the best
remedy for Class Action Members was to participate in the Class Action
Settlement rather than Opt-Out in order to pursue their own remedies such as
filing in Small Claims Court, initiating a separate Class Action of their own,
filing individual property damage litigation, etc. For the benefit of
Class Action 2 members, we present the following:
Click
HERE to read one example of
the hundreds (if not thousands) of people who have contacted us who
participated in the Settlement of Class Action 1.
Click
HERE and
HERE to read one of many examples of people who pursued their remedies
in Small Claims Court.
Click
HERE and
HERE to read what happened when GE entered into a Settlement Agreement
with the government for a defective appliance.
You decide
which is the best approach for you.
May We Suggest . . .
In our not-so-humble opinion, the
notification program for Turner vs General Electric was a bad joke played on
consumers. It was rife with problems and omissions. We would like to
suggest to Plaintiff's Attorneys for Kitchener et al vs General Electric, that
they carefully review the Federal Judicial Center's model notification program.
Just in case they are unfamiliar with the Federal Judicial Center, we are only
too happy to provide the information here.
The
Federal Judicial Center is the
education and research agency for the federal courts. Congress created the
FJC in 1967 to promote improvements in judicial administration in the courts of
the United States. Their website contains the results of Center research
on federal court operations and procedures and court history, as well as
selected educational materials produced for judges and court employees.
"At the request of the
Subcommittee on Class Actions of the US Judicial Branches Advisory Committee
on the Federal Rules of Civil Procedure, the Federal Judicial Center
developed illustrative notices of proposed class action certification and
settlement. These notices are designed to illustrate how attorneys and
judges might comply with a change to Federal Rule of Civil Procedure
23(c)(2)(B). The change, effective December 1, 2003, says that class
action notices "must concisely and clearly state in plain, easily understood
language" specific information about the nature and terms of a class action
and how it might affect potential class members' rights.
We began this project by
studying empirical research and commentary on the plain language drafting of
legal documents. We then tested several notices from recently closed class
actions by presenting them to non-lawyers, asking them to point out any
unclear terms, and testing their comprehension of various subjects. Through
this process, we identified areas where reader comprehension was low. We
found, for example, that non-lawyers were often confused at the outset by
use of the terms "class" and "class action." Combining information from the
pilot test with principles gleaned from psycholinguistic research, we
drafted preliminary illustrative class action notices and forms. We then
asked a lawyer-linguist to evaluate them for readability and redrafted the
notices in light of his suggestions.
We then tested the redrafted
securities and products liability notices before focus groups composed of
ordinary citizens from diverse backgrounds. This testing explored
recipients' willingness to open and read a notice as well as their ability
to comprehend and apply the information contained in a notice.
We tested the effectiveness
of the redrafted securities notice by conducting a survey comparing the
Center's redrafted illustrative plain language notice with the best
comparable notice we could find from closed securities class action cases.
Using objective comprehension measures, we found that participants who
received the Center's plain language notice exhibited significantly higher
comprehension than participants who received the comparison notice.
In August 2001, we posted to
the FJC Website the yet-again redrafted securities and products liability
notices and requested public comments. We subsequently revised the notices'
design and wording, incorporating comments and suggestions received and
using the assistance of additional experts. In November 2003 we added the
employment notices.
(For more detailed
information on the methodology involved in our research and drafting prior
to the 2001 posting, click
here)
Notes for use by attorneys
and judges
We designed the illustrative
forms of notice posted here to demonstrate ways that drafters can use clear,
simple, "plain language" and design in class action notices. In an actual
case, attorneys and judges can adapt the illustrative notice to the unique
factual, legal, and procedural circumstances of their case.
For each type of illustrative
notice posted here, we drafted a detailed "full" notice that an attorney
might mail to known class members, post to a Web site, or otherwise provide
to class members. We also drafted a publication notice and language that
might be used on the outside of a mailing envelope. The products liability
notice, based on a hypothetical asbestos personal injury settlement, has two
target audiences: homeowners and construction workers. Therefore, we
prepared two separate publication notices, both of which are included under
the link to "Products Liability class action: Publication Notice."
Effective notice to a class
may require translation of the English-language notice into languages used
by a substantial portion of the class members. To call attention to this
need and to illustrate its form in two types of notices, we translated into
Spanish the securities class action publication notice and the products
liability class action full notice."
For the Plaintiff Attorneys'
convenience and consumers' reading pleasure, we have made the Federal Judicial
Center model documents available here:
Scott Weinstein
[pronounced wine-stēēn] is the Florida Lead
Attorney for the Turner v General Electric Class Action and now for the new Kitchener
et al v General Electric litigation.
Jeff
Weinstein [pronounced wine - stīne] is the Texas
Attorney for Brent Davis, Objector and Appellant in
the Turner v General Electric Final Settlement Agreement.
There is no family or
professional relationship between the two attorneys.
Jeff's Motion to
Withdraw Objection, clearly illustrates the
reasons for filing his client's original Objection and subsequent Appeal.
Scott's response to the Appeal [Declaration of Scott Weinstein] provides a glimpse into what happens when an attorney not only takes the gloves off, but
appears to abandon civility.
In our
not-so-humble opinion, Scott's Declaration
is equivalent to using
a Sears & Roebuck Catalogue in the outhouse. Rather than relying upon
evidence, points of law, or legal arguments, his prodigious imagination (with
what strikes us as delusional thinking) combine in his efforts to sway the Court and discredit those who
challenge him.
Having been victim of Scott's tactics on more than one occasion, we
both sympathize and are impressed by Jeff Weinstein, attorney for Mr.
Davis. His civility and self control in responding to the "cow patty slinging" approach to litigation gives us hope for
our
legal system.
We urge you to
read Jeff's Motion to
Withdraw Objection. This will not only suggest to you the
'low lights' of Turner v General Electric, but what we can (reasonably) anticipate in
Kitchener et al v General Electric.
So fasten your seatbelts - it's going
to be a bumpy ride!
"Ms.
Cannivet objects to the Settlement Agreement because of GE's role in the
administration of claims processing, citing a inherent conflict of interest
given GE's financial incentive to determine that Class Members do not
quality for settlement Benefits. The Settlement Agreement provides
that GE or its designated agent or employee will be the Claims Administrator
(Id. at 5.) In this capacity GE is required to take all
reasonable steps to administer the claims. (Id.
¶ 6.1) This obligation, however, is not
unsupervised. Settlement Class Counsel has the right to monitor
GE's performance and review data related to Claims Administration. (Id.)
Additionally, GE must provide quarterly reports to Settlement Class Counsel
containing specific information. (Id.
¶ 6.2) Further, the Court retains exclusive
and continuing jurisdiction over the Settlement Class Members and the Claims
Administrator to interpret and enforce terms, conditions, and obligations
under the Settlement Agreement. (Doc. #53-1, ¶ 10.2)
Disputes are resolved by a Special Master, subject to de novo review
by the Court. (Id. ¶¶ 14.1,
14.2.)
[Emphasis ours.]
We are
researching this opinion in an effort to find potential remedies for those of
you who filed valid claims that were denied by GE who is acting as their own
Claims Administrator. As soon as we have a definitive answer, we will post
additional suggestions/instructions on our home page.
The bad news
though, is this:
For
whatever reason, if you have not registered or filed a claim with the GE
Moisture Settlement Office as of September 13, 2006 (estimated) you are S.O.L. All claims you may have had including
repair reimbursements, refrigerator replacement, warranty extension, etc.
have been forever released against General Electric. We know all too
well there are far too many of you (contacting us daily) who were not aware
of the class action, nor your de facto membership in the settlement
class. Either you
never
received a Notice from GE
or you
did not recognize the so-called "Notices" in a handful of publications
which never clearly identified themselves as a General Electric
Defective Refrigerator Class Action Settlement Notice.
In Brent Davis'
Objection to the Settlement Agreement, he cites:
"the
settlement is not fair because it requires class members that GE already
knows are class members to file a claim even though GE knew who the
class members were; the settlement is not fair because for class members
not yet identified by GE they would be precluded from participating in the
class if they did not file a claim by the claim deadline".
[Emphasis
ours]
In our opinion,
this is the crux of the unfairness of the Settlement Agreement and the
limitations and responsibilities placed on the very people who were harmed.
The only glimmer of hope we have at the moment is the fact that the 304 models
included in the Turner v GE Settlement Agreement, are not expressly excluded from the
Kitchener et al v GE complaint.
