Headphone Jack Class Action: Exploratory Informat

Question

Hi everyone-
I own a Zen Micro which I got for Christmas- like most here, it seems- and which was one of the limited-edition first run. Like many others who got this first-generation Micro, my headphone jack has come loose and quickly turned my Micro into an expensi've paperweight. I was told I would have to pay $40 to get the problem fixed.
I then came to these boards and realized that the problem was NOT unique to my player, but seemed to effect almost the entire product line. I saw much rumbling about class action litigation, although no one seemed to be a lawyer. I'm not paying $40 and going without my player to fix a design defect; other companies I've had quality problems with (Gateway, for example) shipped new parts to me at their cost and then gave me a week to ship the old one back in the box they provided so that I never went without my computer and didn't have to spend any money at all, even out-of-pocket.
I'm not a lawyer either; I should make that clear up front. I'm a law student in my last term, and I'll be a lawyer in six months. What this means is that I know enough to get the ball rolling here, and I also know of a law professor at my school- the Uni'versity of Michigan- who has done extensi've research on class action litigation and litigated several cases on the plaintiff's side himself. If the suit looks viable, I can approach him about signing on as the attorney, and he knows his business. Alternati'vely, we could pass off the suit to Girard Gibbs, the firm that successfully forced Apple into settlement over the iPod battery issue.
I think we have several legal recourses here, although I'm still doing some preliminary research. If it looks like I can put together a claim that will at least survi've summary judgment- and I'm pretty confident I can under at least two theories of liability- then I might just go ahead and file it pro se and then file for joinder or class certification later.
I expect Creative's response to this is going to be that they disclaimed all implied warranties in their warranty, including the warranty of merchantability. This obviously won't work in many jurisdictions that forbid manufacturers from contracting out of this warranty. It also has practical problems.
For those unfamiliar with the term, the implied warranty of merchantability is a general warranty that you offer buyers when you are a dealer of a certain kind of product which states that this product will function at least as well as the average kind of product on the market for its purpose. So here, Creative's implied warranty is that their MP3 players should perform as MP3 players at least as well as others. That is, the Micro should work about the same as the mini iPod; they won't be exactly the same, but the point is that they'll at least both play MP3s.
The practical problem I mentioned is that by arguing that their warranty disclaims this implied warranty of merchantability, Creative is basically telling consumers that they don't guarantee that their products will work AT ALL.
What I need to know from YOU is the following, if you would be interested in signing on as a plaintiff.
) What kind of player you have that has this problem.
2) When you purchased it.
3) How long after you purchased it that the problem started.
4) Where you li've (right now, please only respond to this is you're in the USA and bought it here)
5) Where you bought it.
6) If anyone from Creative indicated that Creative knew about this problem.
Please do NOT use this thread to talk about other problems with the Micro or other players; I'm only interested right now in headphone jack problems with ANY player.
I may add more to this as I do more research. I'd also say that if you've been dealing with Creative on this issue and are interested in pursuing litigation either on your own or as part of a class, DOCUMENT EVERYTHING. I'd say go for email help instead of phone when possible, because this will provide written documentation of Creative's policies. If you have the know-how and ability to backup the threads on this board about this problem, please do that as well. Creative may eventually delete these posts, including this one, so if that happens we need to be prepared.
I'm hoping none of this is necessary, that Creative will issue a recall and offer free repairs and some sort of compensation to its customers as some sort of good-faith gesture on its part. But given Creative's slow response, this may be the thing that finally brings their quality control problems to light.
Thanks.

Answer 1

JK23 wrote:
Headphone jacks also break on ipods.
http://broken.typepad.com/b/2004/03/apples_<B>ipod</B>_rep.html
http://www.geek.com/news/geeknews/2003Aug/bpd200308250246.htm
http://jasonnolan.net/words/archi'ves/2004/0/fixed_my_ipod.html
The Zen Micro is a very popular MP3 player. Statistics on the percentage of Zen Micros that have had a headphone jack problem are not publicly available. The percentage might be very small. We also don't have any idea about how the users who have had a problem treated their players. My guess is that on average they probably treated their players quite roughly. When you come to this forum you will see that a large percentage of those who are posting are having problems. When you visit a hospital, you will see that a very large percentage of those who have been admitted are quite ill. One shouldn't reach the conclusion that most humans are very ill after visiting a hospital.
For everyones attention: one of those links does not work, plus not one of the iPods are new ones. One of them is a third generation iPod - the rest seem to be second generation - one is possibly a first generation iPod. Come one, dude - you can find better links than that!
We are talking the Micro here. You know, the kinda NEW player from Creative.Message Edited by Mattias on 05-23-2005 07:5 PM