[comp.sys.mac] The Macintosh SE Fan: The Saga Continues...

myers@vms.macc.wisc.edu (Jeff Myers) (06/24/87)

The SE fan saga continues...

No messages received via usenet, other than a query from another soul
about what I had heard, if not nil.  Received message from Apple campus
rep, who among other things claims his SE fan is quiet.  He also
wishes me to point out that he does NOT wear his Apple Rep hat if he
receives a message on the user group BBS.  I apologize, Mr. Anonymous,
for being so totally gauche.  I also will no longer use the local user
group's AppleLink address or phone number in my signature file (the
former removal was requested by Mr. Anonymous).  Please be kind and do
not revoke my downloading privileges ;-).

I further apologize for being such a pain in the butt, both to Mr.
Anonymous and to the gentle readers of this forum.  But on with the
saga...

[Side question: is Apple listed as 'Apple Manufacturing' on the NYSE,
 or is that something else???  Sure wish I had bought that stock back
 in December :-) ]

I must also note that I realize that no Apple employee on usenet has
the responsibility for dealing with complaints about the SE's fan.
THAT responsibility lies with the top dogs concerned about the cost
of warranty servicing a significant number of machines.  I am
somewhat disappointed that Apple seems not to have learned from the
Imagewriter II experience and been a bit more open and caring about
the SE fan noise problem.

For the record: (1) I am not an SE owner.  (2) I am not a lawyer.
(3) I would sue Apple if I owned an SE in order to gain litigation
experience in federal court and in contract law.  (4) As I do not
have a liscense to practice law, I will not represent another in
such litigation.  (5) I will, however, present some info which might
be useful to someone else wishing to pursue litigation.  (6) Given
the high cost/benefit ratio in suing Apple for most SE owners who
read usenet, I doubt that this information will be put to use [but
it will make me feel better to present it]. (7) I WILL NOT BRING UP
THIS MATTER IN THE LEGAL COMMUNITY PER SE -- I would like to see
Apple begin to do better in the legal market [having a decent word
processor would help -- FullWrite? Word 3.01?] -- I have no interest
in injuring Apple, but rather an interest in improving their image
via an improvement in corporate response to legitimate hardware
problems with their products.  I will not even go so far as to post
this in net.legal (or whatever it is called now).

A class action suit in the federal district court of your
choice would get Apple's attention.  At, say, $200 per SE, you
would only have to show that 50 SE owners are affected by the
litigation to get you over the $10,000 hurdle in a diversity
jurisdiction based federal action.  See Fed. R. Civ. P. 23 [Class
Actions], 28 U.S.C. Sec. 1332 [Diversity of Citizenship actions].

Now, the cause of action would be a breach of the implied warranty
of merchantibility.  UCC Sec. 2-314.  If Apple offers to cure by
invoking their remedy limitation allowing them to return your money,
refuse to accept that and invoke the language of UCC Sec. 2-719
[Contractual Modification or Limitation of Remedy].  Essentially you
would argue that cure by money return in this instance would cause
the limited remedy to "fail of its essential purpose," further
relying on the language of Official Note #1:

"...where an apparently fair and reasonable clause because of
circumstances fails in its purpose or operates to deprive either
party of the substantial value of the bargain, it must give way to
the general remedy provisions of this Article."

Especially if you bought your SE via an educational discount, having
Apple take your SE back and refuse to fix the damn fan (or casing fins,
or whatever) would be a bummer (a term of art).

My opinion is that this would actually be quite interesting to
litigate, assuming the absence of clear and compelling precedent on
the remedy limitation issue.  Anyway, this will get anyone interested
in the matter started.  If the only people who hop is Apple's legal
staff, that's fine, too...  I may wish to work there one day, unless
this message brands me the Ralph Nader of the computer world (THAT
would be flattering, if not downright ego-inflating).

APPEAL TO MY DEAR READERS: Please do not quote any or all of this
letter in any forum outside of this newsgroup.  Netters may personally
reproduce a single hard copy of this letter for themselves.  I will
not accept responsibility for any damages, real or imagined, resulting
from actions of others which violate the wishes I have expressed in
this paragraph.  I do accept responsibility for the results of posting
this article in this newsgroup, but I should point out that I'm
essentially judgement proof.  These words are my own and in no way
represent the judgements or opinions of any other person or organization.

My apologies for being long-winded and legalistic, but please note
that I have attempted to avoid cryptic and needless legalisms.
"Thank you for your support." -- Mr. Bartles (or is it Mr. James?).

-- 
Jeff Myers: University of Wisconsin Law School Nerds, Inc.
ARPA:       myers@vms.macc.wisc.edu            BitNet: MYERS at WISCMACC

"Some folks trust to reason,
 Others trust in might.
 I don't trust to nothin'
 But I know it come out right." -- Copyright 197?, The Grateful Dead

End of Sub-Saga...

abr@mit-amt.MEDIA.MIT.EDU (Adam B Rosen) (07/04/87)

Forgive me if this causes a major repeat of previously posted info, but I'm
new to the new and the original article escapes me.

What are the problems with the SE's fan?  Yes, it's noisy, though my SE with
hard disk is quieter than my friend's with two floppies.  This seems a minor
problem, and not one worth litigating in court.

Adam B. Rosen