Frank’s latest case offers a twist on his usual tactic of objecting to proposed deals before they’re approved. He and his clients have no problem with the consumer class action settlement the computer company NVIDIA agreed to last August. They just don’t believe NVIDIA is living up to the terms of the deal–and they don’t believe class counsel at Milberg is standing up for class members.
On Monday Frank and the Center for Class Action Fairness filed a motion to enforce the settlement, arguing that NVIDIA has breached its agreement with the class. “NVIDIA’s not doing anything, Milberg’s not doing anything, and these class members came to me to get involved,” Frank told us.
Here’s the backstory. Last August, to resolve class claims of defective NVIDIA chips in laptop motherboards, the company agreed to provide Apple and Dell computer owners with free repairs and HP owners with a replacement computer of “like or similar kind.” In December, San Jose federal district court judge James Ware approved the settlement and awarded class counsel at Milberg $13 million in attorney’s fees on a deal that was part of a $193.9 million charge against earnings NVIDIA reported last summer.
But according to Frank and his clients, NVIDIA hasn’t offered HP computer owners the “like or similar” replacements they were promised in the settlement. Dozens of HP notebook models were subject to the agreement approved in December, but NVIDIA has offered class members only one replacement laptop, a Compaq that Frank describes as “a low-end budget computer that retails for under $330 at Best Buy.” Some of Frank’s clients, in contrast, had HP laptops with price tags north of $1,700.
Frank’s motion for enforcement calls NVIDIA’s offer to HP owners a “bait and switch,” and contends the company is in violation of the court order approving the settlement. The motion also takes Milberg to task for failing its clients. Frank claims Milberg has a “financial incentive” to collude with NVIDIA because its administrative expenses will be lower if fewer class members participate in the settlement.”
Lead class counsel Jeff Westerman of Milberg said in a statement that Frank is “working against the interests of consumers who deserve to get their computers replaced.”
“This settlement is providing class members with repairs and replacement computers, and thousands have already submitted claims,” Westerman said in the statement. “When it comes to the replacement computers, we hired an independent expert who confirmed that we were adhering to the terms of the settlement. [Frank's] claims to the contrary reveal an anti-consumer agenda aimed at stopping the settlement from proceeding.”
NVIDIA counsel Robert Varian of Orrick, Herrington & Sutcliffe declined comment. But in a response to an earlier filing by Frank, the company said it and Milberg “devoted substantial attention to the matters [Frank] raised,” which the company characterized as “assertions of dissatisfaction by a tiny minority of class members.” Nevertheless, NVIDIA said it was “happy to provide any information” Judge Ware requested.
NVIDIA and Milberg are scheduled to file responses to Frank’s latest motion on Friday. A hearing on his allegations is scheduled for March 28.