Friday, November 22, 2013

The Laptop, the Malware and the Consumer Sales Protection Act

This post examines an opinion the Ohio Court of Appeals issued in a civil case:  Fikri v. Best Buy, Inc., 2013 WL 5936429 (2013).  Ergun Fikri sued Best Buy, Inc. in the Mason (Ohio) Municipal Court, “alleging violations of the Ohio Consumer Sales Protection Act (Ohio CSPA) for Best Buy's actions with respect to” two computers he bought from Best Buy.  Fikri v. Best Buy, Inc., supra.  

(The opinion refers to it as the Ohio Consumer Sales Protection Act, but other sources refer to it as the Consumer Sales Practices Act.)

According to the opinion, the case began on February 4, 2013, when Fikri bought a

Toshiba laptop computer from the Best Buy store located in Mason, Ohio. The computer came with a one-year manufacturer's warranty, which was limited to correcting defects in the computer's hardware. In addition, [Fikri] purchased a separate two-year service contract with Best Buy to provide technical support on the new Toshiba computer and his existing Dell computer.

[Fikri] began experiencing problems with his Toshiba computer within the first several months of his purchase and contacted Best Buy. On July 16, 2012, Best Buy diagnosed the problem as a corrupt operating system and recommended his computer be sent to its Louisville, Kentucky center for warranty repairs. Since [Fikri] could not be without his computer at that time, he elected to take the computer home and wait to fix it at a more convenient time.

On August 16, 2012, [Fikri] returned to the store to have his computer serviced. In the Best Buy service order dated the same day, the service technician noted problems with the internet and also that the computer `makes loud noises on startup and waking from sleep.’ The service technician at Best Buy also performed a spyware and virus screen, in which he noted that the scan detected nineteen spyware programs. 

As a result of the problems [Fikri] was experiencing with the computer, Best Buy sent the machine to its Chicago facility which replaced the mother board, HDD hard drive, and Wi–Fi hardware systems. Pursuant to the manufacturer's warranty still in place, [Fikri] was not charged for any of those services.

Fikri v. Best Buy, Inc., supra.

On August 28, 2012, Fikri got his computer back from Best Buy and, as he later testified at the trial in the case, the

software and spyware problems were corrected following the replacement of those parts. However, [he] was dissatisfied with the work done and raised a number of complaints regarding his experience with Best Buy. [Fikri] alleged that Best Buy negligently or intentionally replaced his Toshiba power cord and battery with a used and defective power cord and battery. 

He also disagreed with Best Buy's decision to replace the Toshiba hardware, rather than just delete the spyware, which he believed would have corrected the problem. In essence, [Fikri] alleged that Best Buy's actions were motivated by a scheme to harvest component parts for re-use and re-sale for its own pecuniary gain.

Fikri v. Best Buy, Inc., supra.

In addition to his complaints about the Toshiba computer, Fikri also claimed Best Buy

failed to service his Dell computer, which was also covered under the two-year services contract with Best Buy. According to him, Best Buy declined to work on the Dell laptop computer, which was also infected with spyware. That computer was subsequently repaired by Office Depot and billed to [Fikri].

Fikri v. Best Buy, Inc., supra.

On October 29, 2012, Fikri filed this lawsuit in the Mason Municipal Court, alleging

violations of the Ohio Consumer Sales Protection Act for Best Buy's actions with respect to the Toshiba and the Dell computers. The case was heard before a magistrate on February 6, 2013. The magistrate found [Fikri] failed to establish any theory of liability and entered judgment in favor of Best Buy. The trial court adopted the magistrate's decision. 

Fikri v. Best Buy, Inc., supra. Fikri then appealed, pro se. 

The Court of Appeals began its analysis of the issues in the case by noting that

we allow pro se litigants `reasonable leeway’ in their pleadings so as to decide the issues on the merits, as opposed to the technicalities. Bramel v. Lawhun, 1998 WL 789640 (Ohio Court of appeals 1998). . . . 

However, `a pro se litigant is presumed to have knowledge of the law and correct legal procedures so that he remains subject to the same rules and procedures to which represented litigants are bound. He is not given greater rights than represented parties, and must bear the consequences of his mistakes.’ Murphy–Kesling v. Kesling,  2009–Ohio–2560 (Ohio Court of Appeals 2009).

Fikri v. Best Buy, Inc., supra.

The court began its analysis of Fikri’s appeal by noting that the Ohio CSPA provides

`[n]o supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.’ Ohio Revised Code § 1345.02(A). . . .   

The CSPA generally defines “`unfair or deceptive consumer sales practices' as those that mislead consumers about the nature of the product they are receiving, while ‘unconscionable acts or practices' relate to a supplier manipulating a consumer's understanding of the nature of the transaction at issue.” Whitaker v. M.T. Automotive, Inc., 111 Ohio St.3d 177, 855 N.E.2d 825 (Ohio Supreme Court 2006) (quoting (Johnson v. Microsoft Corp.,106 Ohio St.3d 278, 834 N.E.2d 79 (Ohio Supreme Court 2005). 

A nonexhaustive list of practices defined as `unfair’ or `deceptive’ is contained in Ohio Revised Code § 1345.02(B). . . .

Fikri v. Best Buy, Inc., supra.

The Court of Appeals then explained that, at the trial, Fikri testified about the

problems he experienced with both his Toshiba and Dell computers. He testified that he had purchased his Toshiba computer from Best Buy, and elected to put both his Toshiba computer and his Dell computer under the service contract with Best Buy. He also testified as to the defects associated with both computers, the potential causes of those defects, the hardships he experienced in resolving those issues, as well as his own theories accounting for Best Buy's actions.

Matthew Konn, the general manager of the Best Buy store located in Mason, Ohio testified on behalf of Best Buy. His testimony largely related to the standard practices and procedures of the company.

Fikri v. Best Buy, Inc., supra. 

After the trial judge considered the evidence presented, he found Fikri “failed to prove his case by a preponderance of the evidence.”  Fikri v. Best Buy, Inc., supra.  The Court of Appeals agreed.  Fikri v. Best Buy, Inc., supra.  But before it took up the legal and factual issues in the case, the court noted that as an

appellate court, our review of a trial court's decision is limited to whether the judgment is against the manifest weight of the evidenceJones v. Homes, 2013–Ohio–448, ¶ 24 (Ohio Court of Appeals 2013). The Ohio Supreme Court has confirmed that when reviewing the manifest weight of the evidence, an appellate court conducts the same analysis in both criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 517 (Ohio Supreme Court 2012).

As such, we weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the finder of fact `clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered. Eastley v. Volkman, supra (quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (Ohio Supreme Court 1997)).

Fikri v. Best Buy, Inc., supra. 

It then explained that, on appeal, Fikri alleged

three different acts . . . which he believes constitute `unconscionable’ or `deceptive’ actions under the CSPA. Namely, [he] points to the number of defects in the computer that he purchased, an allegation that Best Buy ordered replacement parts under his manufacturer's warranty in order to further a `harvesting’ scheme, and the failure of Best Buy to inform him about the spyware that was found on his computer.

In its decision, the trial court briefly summarized [Fikri’s] testimony, which `included theories of unnecessary replacement parts, a suspicion that Best Buy had returned a defective power cord to him so that he would have to buy a new one, and a Wikipedia description of Spyware. Further, his only other testimony presented for unfair or deceptive sales practices were other customer reviews with the Better Business Bureau.’

Fikri v. Best Buy, Inc., supra. 

The Court of Appeals analyzed Fikri’s evidence on each of the three acts he cited as violating the CSPA, beginning with the issue of “defects”:

With respect to the quality of his computer, [he] first argues that the definition of `deception’ under Ohio Revised Code § 1345.02 is met in the present case based on the `magnitude and total number of defects’ associated with his laptop. 

The trial court heard [his] testimony as to the numerous problems that he experienced with his computer and the steps taken to resolve the issue. [Fikri] testified at length about the stress, loss of business productivity, and numerous trips to the store that he had to make in order to resolve the issue.

However, merely because a customer experiences difficulties with a product after its purchase does not invariably mean that the CSPA was violated. The burden of proof is on the party bringing the action to prove the facts necessary for his case by a preponderance of the evidence. Adaptable Custom Homes, Inc. v. Affordable Luxury Homes, Inc., 1992 WL 29236 (Ohio Court of Appeals 1992).

Fikri] failed to present any evidence that the computer problems were caused by Best Buy. To the contrary, Best Buy proffered testimony showing that spyware can come onto any computer through a number of ways, including simple web browsing. 

After having considered all of the evidence introduced on this matter, we find the trial court's decision that there was no violation of the CSPA based on the defects in the computer was not against the manifest weight of the evidence.

Fikri v. Best Buy, Inc., supra. 

It then took up Fikri’s argument that Best Buy engaged in

unconscionable sales practices under Ohio Revised Code § 1345.02(B)(7) in the sale of his laptop by unnecessarily replacing component parts of his computer when they were not needed. In support, [Fikri] entered a work order into the record, which shows handwritten notes by a Best Buy employee indicating that Best Buy conducted a spyware and virus scan of his computer, but failed to remove the spyware that was found. [He] alleges Best Buy chose to obtain replacement parts under his warranty with the manufacturer, instead of simply deleting the problematic spyware software.

[Fikri’s] theory is that Best Buy took these actions in order to further a self-dealing, `harvesting’ arrangement whereby Best Buy would order unnecessary replacement parts from a manufacturer under the manufacturer's warranty and then re-use those component parts in their own operations. 

He attempts to support this allegation with another exhibit that states in the fine print of a service document that Best Buy is authorized to `[u]se new or rebuilt replacement parts that perform to the factory operational specifications of the product.’

Best Buy denied those allegations at trial, offering testimony that the notes made by the employee were only preliminary notes and did not reflect the actual removal of spyware. Best Buy also introduced testimony that the spyware was removed at a later time. 

Other than [Fikri’s] theory, there was no evidence placed in the record demonstrating Best Buy was involved in an illegal harvesting scheme.

As a result, the trial court weighed the conflicting evidence of the two sides and found [Fikri] had not proven his case by a preponderance of the evidence. Based on our review of the record, we find the trial court's conclusion that Best Buy did not violate the CSPA is supported by competent, credible evidence and is not against the manifest weight of the evidence.

Fikri v. Best Buy, Inc., supra. 

Finally, Fikri argued that the trial judge erred in

not finding Best Buy's actions unconscionable because they allegedly failed to inform him of the existence of spyware until ten days after it was discovered on his computer.

However, Fikri failed to present any evidence demonstrating why this constitutes an unconscionable action or that a ten-day time period was unreasonable or excessive. Accordingly, the trial court's decision finding that appellant failed to prove a violation of the CSPA was not against the manifest weight of the evidence.

Fikri v. Best Buy, Inc., supra. 

For these and other reasons, the Court of Appeals affirmed the judgment of the trial court.  Fikri v. Best Buy, Inc., supra. 

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