Transcript Extract:
THE COURT: You don't think they have had to formulate the plan at that point to change the rules down the line?
MR. QUADRA: No. In fact, 17200 fraudulent prong does not require intent. It's just likely to deceive. And those cases don't talk about intent at all. They talk about: Will the consumer be misled by ultimately what happens? And here there's no disclosure of that. And what I think I heard Counsel say is it couldn't have taken it away during the first year. So now they're saying,
"Well, but if it's after the first year, then I can take it away."
Well, they didn't disclose that. They didn't say that. And she's saying the warranty was one year. In Rubio, there's the case where they disclose a certain rate of interest. And then they popped it up later. And that was found to be actionable, your Honor; whether they had a plan or not to do it -- irrelevant. It's about misleading the public. And I would say that Daugherty -- I think we have to make that clear, your Honor. That case addressed fixing a defect, as the Court has raised; completely different than reaching into a product and removing a feature. And I have to remind the Court that the people who clicked and said "No" to the update lost the use of Blu-ray; lost the use of some games. That was clearly a huge feature in this product, yet they were denied that. I mean, clearly, that was a way of pushing them to do this. And then in February of 2011, they made these statements where -- and we're putting in paragraph 125 -- where they said the ten-year life cycle -- they say "life cycle"; not "product cycle"; "life cycle," or "marketing cycle" -- is a commitment; a commitment we've made with every PlayStation consumer to date. It's a commitment, they're saying. They're not just throwing it out there. They clarified that as it applied all of that to the PS2, to the PS3.
So I think, your Honor -
THE COURT: See, I have to tell you -- and I'm not saying this necessarily is dispositive for purposes of your motion, because, as I said at the outset, if you -- if there's is any plausible interpretation, then the inferences go to you; but that statement, to me, says,
"We're not going to come out with a new model, such that you're going to feel like you bought something obsolete two years from now. This is going to be our product for ten years."
I don't think it -- I think the obvious reading does not connote a representation that functionality of the device will remain unchanged. And that's what you're suggesting it means. And I don't think that's the meaning of it, but I have to --
MR. QUADRA: But a reasonable consumer.
THE COURT: Well, I have to decide that question, but --
MR. QUADRA: And then finally, your Honor, one thing on the computer fraud. I would ask the Court to look at Cisco Systems, because in that case, there was an employee who was basically forced to give up his password. So he knew he was giving it up, yet ultimately, that was found to be actionable, because it was a violation of the policies of the company. Same here. It's a choice under duress, which is not a choice under the Computer Fraud Act. It's not authorization.
THE COURT: All right. Thank you. I'll take the matter under submission, and do my homework, and give you an order.
MR. QUADRA: No. In fact, 17200 fraudulent prong does not require intent. It's just likely to deceive. And those cases don't talk about intent at all. They talk about: Will the consumer be misled by ultimately what happens? And here there's no disclosure of that. And what I think I heard Counsel say is it couldn't have taken it away during the first year. So now they're saying,
"Well, but if it's after the first year, then I can take it away."
Well, they didn't disclose that. They didn't say that. And she's saying the warranty was one year. In Rubio, there's the case where they disclose a certain rate of interest. And then they popped it up later. And that was found to be actionable, your Honor; whether they had a plan or not to do it -- irrelevant. It's about misleading the public. And I would say that Daugherty -- I think we have to make that clear, your Honor. That case addressed fixing a defect, as the Court has raised; completely different than reaching into a product and removing a feature. And I have to remind the Court that the people who clicked and said "No" to the update lost the use of Blu-ray; lost the use of some games. That was clearly a huge feature in this product, yet they were denied that. I mean, clearly, that was a way of pushing them to do this. And then in February of 2011, they made these statements where -- and we're putting in paragraph 125 -- where they said the ten-year life cycle -- they say "life cycle"; not "product cycle"; "life cycle," or "marketing cycle" -- is a commitment; a commitment we've made with every PlayStation consumer to date. It's a commitment, they're saying. They're not just throwing it out there. They clarified that as it applied all of that to the PS2, to the PS3.
So I think, your Honor -
THE COURT: See, I have to tell you -- and I'm not saying this necessarily is dispositive for purposes of your motion, because, as I said at the outset, if you -- if there's is any plausible interpretation, then the inferences go to you; but that statement, to me, says,
"We're not going to come out with a new model, such that you're going to feel like you bought something obsolete two years from now. This is going to be our product for ten years."
I don't think it -- I think the obvious reading does not connote a representation that functionality of the device will remain unchanged. And that's what you're suggesting it means. And I don't think that's the meaning of it, but I have to --
MR. QUADRA: But a reasonable consumer.
THE COURT: Well, I have to decide that question, but --
MR. QUADRA: And then finally, your Honor, one thing on the computer fraud. I would ask the Court to look at Cisco Systems, because in that case, there was an employee who was basically forced to give up his password. So he knew he was giving it up, yet ultimately, that was found to be actionable, because it was a violation of the policies of the company. Same here. It's a choice under duress, which is not a choice under the Computer Fraud Act. It's not authorization.
THE COURT: All right. Thank you. I'll take the matter under submission, and do my homework, and give you an order.
Official Source: groklaw.net
News Source: ps3hax.net
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