TURNER v GE Refrigerator Class Action

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

CASE NO.: 2:05-CV-186-FtM-29DNF ___________________________________________________ _________ WILLIAM F. TURNER, et al

Plaintiffs, Fort Myers, Florida vs. August 21, 2 006 1:32 p.m. GENERAL ELECTRIC COMPANY,

Defendant. ___________________________________________________ _________

TRANSCRIPT OF CONTINUATION OF FAIRNESS HEARING

The above-entitled cause was called for hearing bef ore

the Honorable John E. Steele, United States Distric t Court

Judge, sitting at the United States Courthouse in t he City

of Fort Myers, Florida, beginning at the hour of 1: 32

o'clock, p.m., on the 21st day of August, 2006.

- - -

2

1 A P P E A R A N C E S

2 FOR PLAINTIFFS:

3 Weinstein, Bavly & Moon, P.A. Suite 303

4 2400 First Street Fort Myers, FL 33901

5 (239) 334-8844 BY: SCOTT W. WEINSTEIN, ESQ.

6 BY: JORDAN LUCAS CHAIKIN, ESQ.

7 The Mason Law Firm, P.C. 1225 19th Street, N.W.

8 Suite 500 Washington, DC 20036

9 BY: GARY E. MASON, ESQ. BY: ALEXANDER E. BARNETT, ESQ.

10 FOR DEFENDANT:

11 Fowler, White, Boggs & Banker, P. A.

12 501 East Kennedy Boulevard Suite 1700

13 Tampa, FL 33601 (813) 222-1137

14 BY: EDWARD MARTIN WALLER, JR., ESQ.

15 FOR BRENT DAVIS, Objector:

16 Jeffrey L. Weinstein, P.C. 518 East Tyler Street

17 Athens, TX 75751 BY: JEFFREY G. WEINSTEIN, ESQ.

18 BY: MICHAEL F. KAYUSA, ESQ.

19 FOR CATHERINE CANNIVET, Objector:

20 CATHERINE CANNIVET, Pro Se 3995 Upolo Lane

21 Naples, FL 34119 (239) 592-5454

22 REPORTED BY: JEFFREY G. THOMAS, RPR-CP

23 Official Federal Court Reporter U.S. Courthouse

24 2110 First Street, Suite 2-194 Fort Myers, FL 33901

25 (239) 461-2033

3

1 I N D E X

2

3 August 21, 2006 V ol. Page

4 1 4Preliminary Discussions

5 1 5Argument by Mr. Scott Weinstein

6 1 21Argument by Mr. Waller


8 1 23Argument by Mr. Jeffrey Weinstein

9 1 34Argument by Ms. Catherine Cannivet


11 1 59Argument by Mr. Mason

12 1 61Argument by Mr. Jeffrey Weinstein



15 1 80Mr. Jeffrey Weinstein Questions Mr. Scott Weinstein


17 1 88Argument by Mr. Mason



20 1 96Argument by Ms. Cannivet

21 1 99Certificate of Court Reporter

22

23

24

25

4

1 THEREUPON, the above-entitled case having been ca lled

2 to order, the following proceedings were held her ein,

3 to-wit:

4 - - -

5 THE COURT: All right. This is the case of

6 William H. -- I'm sorry, William F. Turner, on be half of

7 himself and all others similarly situated, versus General

8 Electric Company. It is Case 2:05 civil 186. Th is is a

9 continuation of a fairness hearing that was begun on April

10 the 27 th , 2006, in front of Judge Covington. I have read

11 a transcript of that hearing.

12 Counsel, if you'd identify yourselves and your

13 respective clients, beginning with counsel for th e

14 plaintiff?

15 MR. SCOTT WEINSTEIN: My name is Scott Weinstein.

16 I represent the plaintiff.

17 MR. MASON: Gary Mason for plaintiff.

18 MR. BARNETT: Alexander Barnett for the plaintiff .

19 MR. CHAIKIN: Jordan Chaikin for the plaintiffs.

20 MR. WALLER: Ed Waller, from the Fowler White fir m

21 in Tampa, representing GE. And with me is Hal Bo gard,

22 senior litigation counsel for GE, from Louisville .

23 THE COURT: All right.

24 MR. JEFFREY WEINSTEIN: Your Honor, Jeff Weinstei n

25 for objector Brent Davis.

5

1 MR. KAYUSA: Your Honor, Michael Kayusa, local

2 counsel for Mr. Davis.

3 THE COURT: All right. Thank you, all.

4 Mr. Weinstein, I think this is your show. We'll

5 start with you.

6 MR. SCOTT WEINSTEIN: Yes, sir. May I remain at

7 counsel table, because I have so many items?

8 THE COURT: You may.

9 MR. SCOTT WEINSTEIN: Thank you.

10 Again, Your Honor, this is the continuation of th e

11 fairness hearing that began on April 27 th , we were

12 prepared, we thought, at that time, to finalize a fairness

13 hearing. Early that morning, we spoke with Mr. B ogard and

14 Mr. Waller, who, at that point, told us that, lit erally that

15 morning, their data people at GE figured out that there may

16 be a way to find more GE refrigerator owner that were in the

17 database that they had been using. We told the C ourt that,

18 and Mr. Bogard explained where that database was.

19 As it turns out, it was a database of people who

20 did not send in their warranty registration card. When you

21 buy a refrigerator, you fill out a card and send it in for

22 this very purpose. If somebody had sent in that warranty

23 registration card, then they were in the first gr oup of

24 notices. If somebody had service on their GE ref rigerator,

25 through GE or a GE authorized service person, the y were in

ARGUMENT BY MR. SCOTT WEINSTEIN 6

1 that original group of individual direct notice. But GE

2 figured out that there may be a group of people t hat bought

3 an extended warranty from Home Depot or an outsid e agency

4 that they could identity, and they told us that m orning,

5 and, of course, we told Judge Covington. So we d id a little

6 bit of business on April 27 th . Mr. Turner, who is sitting

7 here, addressed the Court, and is here again, if necessary,

8 if there's any other questions to answer.

9 Judge Covington made findings, we believe, about

10 the adequacy of the notice. She reviewed the pub lication

11 notice. We have the actual magazines that notice was

12 published in, and she reviewed those, and found t hem to be,

13 in her own words, more than adequate. But we did n't talk

14 about the settlement itself. We did not reach th e point of

15 Judge Covington determining whether the settlemen t was fair,

16 reasonable, and adequate.

17 So, if we may, Your Honor, a brief history of wha t

18 this case is about?

19 THE COURT: Please.

20 MR. SCOTT WEINSTEIN: Several years ago, it becam e

21 known, first in Naples, Florida, that more than o ne person

22 in the neighborhood with a similar refrigerator w as having a

23 similar problem. And NBC2, the local affiliate, did a story

24 about that, and they started exposing the fact th at many

25 neighbors in the neighborhood were complaining ab out similar


1 problems with their GE refrigerators. And notabl y,

2 Miss Cannivet, who I think is sitting back over t here,

3 apparently -- and I'm taking this from media acco unts

4 because that's how I knew about it -- got the med ia's

5 attention, and actually, I think, Miss Simmons, f rom NBC2,

6 did the first report that I saw about it, talking about how

7 similar problems were found in these refrigerator s. We

8 later found out that General Electric had agreed to replace

9 the refrigerators in that particular neighborhood , and most

10 of the neighbors appeared to be happy.

11 But Mr. Turner, who did not live in that

12 neighborhood, he lived in Pelican Bay, had a simi lar

13 refrigerator, and he a similar problem, and he di dn't live

14 in Island Walk, so he didn't get his refrigerator . So he

15 called me, and we began an investigation. I imme diately

16 co-counseled with Gary Mason and his firm, becaus e of their

17 experience in a somewhat similar case involving a Maytag

18 Neptune washing machine. It was a similar kind o f issue,

19 and they were very successful in the nationwide c lass

20 action. And I have known Gary for many years.

21 We spent a lot of time getting public information ,

22 things that we can find out ourselves, and we fil ed a rather

23 simple complaint, Florida class only, based on th e units

24 that we can figure out, from web sites, appear to have the

25 common problem. And, very soon after, I was cont acted by


1 Mr. Waller, from Fowler White, who told me he was going to

2 represent General Electric, and we began the disc overy

3 process.

4 Fortunately, I believe, Mr. Waller recommended,

5 early on, that we meet with himself, and Mr. Boga rd, and

6 some other people from General Electric, and we d id so very

7 quickly, in Florida, in Tampa; and, soon after, w e were

8 invited to Louisville, where the General Electric appliance

9 division is located, where Mr. Bogard, who is chi ef

10 litigation counsel, I believe, for the appliance division,

11 resides and works; and we entered into a confiden tiality

12 agreement that Judge Covington, I think, signed o ff on. And

13 we went to Louisville, and we were surprised at h ow

14 forthright GE was with us in showing us, really, what the

15 problems were with some of these refrigerators. It gave us

16 the ability to determine what the scope of that w as. And,

17 by that, I mean which model numbers were similarl y affected.

18 Because we were under a confidentiality order, an d

19 still are, I can't talk in specifics about what w e learned

20 and what we didn't; but suffice to say that we we re able, on

21 two occasions, to expand the class by filing a se ries of

22 amended complaints to list more and more model nu mbers,

23 because we started finding this common problem.

24 We went back and regrouped, and figured out how t o

25 proceed, and then we went back to Louisville agai n, because


1 at that point we had a lot of questions, and we m et, again,

2 with counsel, and with people from the engineerin g side of

3 General Electric, people who make these products. And we

4 were able to ask them questions, and then we were able to

5 ask for backup documentation about what they were telling

6 us.

7 We received thousands of documents from General

8 Electric, and we also received four CD's, with th ousands of

9 documents on them that had to do with histories, complaints,

10 some internal memos about what the problem was, a nd we

11 figured out what the problem was with this group of

12 refrigerators.

13 We could not determine, although we heard,

14 anecdotally, there were problems with other model s, we were

15 sure that we had the right group of models to inc lude in

16 this class. And so we amended the complaint agai n, and

17 included those models. Then we spent several mon ths, as we

18 began the discovery process, also talking about r esolving

19 this case. And last December, December of '05, t he

20 negotiations became rather heavy, and heated, I m ight add,

21 because we suggested a way to resolve this matter , we got

22 together again, and finally reached the settlemen t agreement

23 that's been filed with this Court.

24 This, Your Honor, is one of the early cases under

25 CAFA the Class Action Fairness Act, so, of course ,


1 everything we did complied with CAFA. And one of the things

2 that has to be done under CAFA is that all attorn eys

3 general, for instance, of the United States, must be given a

4 notice of the settlement. And that was done. Mr . -- and,

5 by the way, CAFA says that the defendant is respo nsible for

6 doing that; so Mr. Waller took care of that, and we made

7 sure that he did.

8 We reached what we believe -- and let me . . . .

9 Let me tell you how we got to -- to reaching this agreement.

10 By the time we reached the time of talking about

11 settlement, the media had picked up on this story , and I

12 started receiving hundreds of phone calls, every day, from

13 consumers, telling me that they had this problem, and asking

14 me what to do. And the problem was that I couldn 't tell

15 them what to do. I couldn't tell them not to fix it because

16 they had a problem. I couldn't promise them that , if they

17 fixed it, themselves, they would ever get reimbur sed. And I

18 had that in my mind as we got toward these settle ment

19 negotiations.

20 So one of the prime issues, when we negotiated

21 this, was I wanted to make sure that, if we settl ed this

22 case, that we had immediate relief for the -- for the

23 consumer, for the settlement class members as the y turned

24 out to be; and we negotiated immediate implementa tion of the

25 benefits program because I knew that, once we fil ed this,


1 and it got in the media, and then direct mail not ices were

2 sent out, I was going to hear from hundreds, or t housands,

3 or tens of thousands of people, and I needed to b e able to

4 tell them what to do.

5 It was somewhat unconventional that there would b e

6 an agreement to start providing benefits to a set tlement

7 class before today, before the final hearing, bec ause GE

8 didn't know whether we'd ever get to this day, an d GE still

9 doesn't know whether Your Honor is going to sign the final

10 order. But it was untenable, from our final stan dpoint, to

11 have a long period of time to get to the point wh ere we're

12 at today, where people continued suffering with d efective

13 refrigerators, and either had to fix them or repl ace them.

14 And, so, after lengthy discussions, GE agreed

15 that, from the moment -- if the Court entered the

16 preliminary order approving the settlement, which Judge

17 Covington did, at that moment, this additional wa rranty

18 protection plan would start, and, at that moment, anybody

19 who is defined in that class, who had what is def ined as a

20 moisture related problem -- and it's a broad defi nition --

21 would have free service up until January 12 th of 2007.

22 That way, when those calls start coming to me -- and, Your

23 Honor, believe me, they did, thousands of them, t housands of

24 them a month -- I could tell them what to do. Wh ether they

25 had a claim form or not, whether they received no tice or


1 not. So, beginning on January 13 th of this year, any

2 consumer who is defined in the class definition, who had a

3 moisture related problem, was entitled to free se rvice.

4 This was . . . going way back. And, in fact, You r

5 Honor, skipping ahead, 61,765 letters, more than 61,000

6 letters, have been sent out to consumers as of th e last date

7 that we knew, last week, advising them, because t hey had

8 asked for it, that they have additional warranty protection.

9 Again, well before Your Honor has a chance to dec ide whether

10 this settlement is going to be finally approved.

11 And the other thing that they agreed to do along

12 the way -- let me go through the three levels of benefits

13 under the settlement.

14 Number one, you get that immediate implementation

15 of the additional warranty protection. I mean ri ght now,

16 way back when. If you've had three repairs, by a nybody, by

17 an independent service person, by GE, as long as it's three,

18 repairs, and you can show that with any kind of e vidence,

19 you get a new refrigerator. GE comes and they ta ke your old

20 one away, and they give you a comparable one. An d it was

21 important to us that that start immediately, so t hat people

22 don't continue suffering through this process. S o they did

23 that. And through this date, through this hearin g, 13,423

24 refrigerators, new refrigerators, have been insta lled in

25 class members' homes. More than 13,000. Which b y the way,


1 Your Honor, have an average value of more than a thousand

2 dollars each.

3 And, immediately, because I would receive calls,

4 people who really don't have the money to pay for these

5 repairs, and have paid for them, if they could sh ow that

6 they had a moisture related repair before, before this

7 settlement ever happened, and they paid somebody to fix it,

8 they get all of their money back. And, to date, $1,000,893

9 has been directly reimbursed to consumers who act ually had a

10 repair that they paid for, or actually went out o f pocket to

11 replace the refrigerator because they didn't want to wait

12 for GE to do something.

13 All of those things happened already, and that's

14 what we negotiated from the beginning, looking fo rward,

15 because, otherwise, it would have been untenable, and we

16 would have reached today, and more and more peopl e would

17 have had a problem, and they would have been out of pocket.

18 So those were the three elements of the

19 settlement.

20 The notice plan was as follows. And Your Honor

21 has them. Advertisements were placed in national magazines,

22 including the two major Sunday morning magazines, U.S.A.

23 Today and . . . what's the other one called?

24 MR. MASON: Parade.

25 MR. SCOTT WEINSTEIN: Parade. And People's


1 Magazine, and Readers Digest. Summary notices of this

2 class, with a toll free number, so that, if peopl e didn't

3 get a direct notice in the mail, they could get a toll free

4 number, and it could be sent to them. And, Your Honor, my

5 address. And, at the moment that these were publ ished, I

6 would receive phone calls and letters, and I woul d help

7 people get claim forms, and tell them how to do t hem.

8 Hundreds of thousands of them.

9 Also, a web site was set up by GE. We found that ,

10 as of now, that web site has had -- let me see if I have

11 this number. I don't know how many hits. 43,455 hits. On

12 the special web site. With an average view of 4. 15 minutes.

13 And, on that web site, consumers are able to read the

14 settlement documents, and download a claim form, and

15 understand -- and also contact me.

16 So all of those things were done before

17 April 27 th , when we came here.

18 Judge Covington was impressed with the notice pla n

19 and the implementation of the notice. But then t hat issue

20 came up, so Judge Covington ordered that all of t hose people

21 on that supplemental list -- and that's what we c alled it --

22 had to get a notice. And she approved of a new t ime

23 schedule before we got here, today. And, in fact , we

24 checked, and affidavits have been filed, those no tices were

25 sent out. 263,000 notices were sent out since Ju ne 6 th .


1 In all, Your Honor, 707,490 claim forms have been

2 sent out to date. 707,000. We don't know whethe r some of

3 those are duplicates or not. I don't know if the re is any

4 way to know. And, to date, Your Honor, 133,483 c alls have

5 come back to that call center. 42,000 since June . And

6 64,000 claim forms have been submitted, to date, from

7 consumers. Only 244 people have opted out of the

8 settlement. And, again, 61,000 letters have been sent,

9 authorizing the additional warranty protection th at I spoke

10 of.

11 And I told Your Honor about how much was

12 reimbursed and how many refrigerators have alread y been

13 replaced. And some consumers have several more w eeks to

14 send in their claim forms under the supplemental notice

15 plan, and they have until January of next year to continue

16 receiving their free service, and to get their ne w

17 refrigerator if they have a problem.

18 Some of these refrigerators are going on five to

19 six years -- five years old, six years old, as th is point.

20 So they're going to have other problems, anyway. They're

21 starting to get to the point in their life where they are

22 going to start having problems.

23 So that is what's happened to date.

24 Now, we filed an extensive briefing and I don't

25 know what Your Honor wants us to talk about more than


1 anything else. I must mention that, as of the fi rst

2 fairness hearing, in April, there were four thing s that we

3 characterized as objections. I don't know if the y were

4 objections. They were letters that we received, that were

5 not filed with the Court, but counsel for GE and my side

6 decided, that if they smell like an objection, we 're going

7 to treat them like one, and we filed them, even t hough they

8 didn't comply with the order of the Court. And n one of

9 those objectors showed up at the original fairnes s hearing.

10 I know that two of those objectors -- and we've

11 got affidavits in the file -- have been satisfied . They

12 actually got their replacement refrigerators thro ughout the

13 process. And the other two, their issue was they weren't

14 happy because they didn't want to wait until they had three

15 repairs, they wanted a new refrigerator now. And they know

16 that they're eligible to get a new refrigerator i f they have

17 three problems. I don't believe any of those peo ple are

18 here, and I don't think that they really were obj ections

19 anyway.

20 Now, since that time, there was one objection

21 filed before the new deadline. Because Judge Cov ington said

22 that she wants the supplemental notices to go out , and the

23 then those people should have a longer time to fi le their

24 objections. Anybody who was in the original grou p does not.

25 And Mr. Weinstein has filed an objection on behal f of


1 Mr. Davis. We got it at the 11 th hour, but we got it on

2 time, and I'm prepared to talk about that.

3 Well after the deadline, Your Honor, Miss Cannive t

4 filed two documents. The first was called an obj ection, and

5 the second one was referred to as the declaration s portion

6 of it, although I don't believe the declaration p ortion

7 complies with the definition of a declaration. I t's a

8 25-page document that has a lot of issues in it.

9 Your Honor, since you indicated that you read the

10 transcript of the first hearing, Miss Cannivet ap peared at

11 that hearing. She said she was not objecting. S he said

12 that she received the original notice and claim f orm, which

13 means she's in the original group. She did not f ile an

14 objection before the original deadline. She said she was

15 not an objector, just wanted to address the Court . And then

16 she filed this objection after the supplemental o bjection

17 date.

18 She appears to have followed the format that

19 Mr. Weinstein used. It looks clear that she saw

20 Mr. Weinstein's objection, and used the physical format of

21 it. And then the 25-page document came, I believ e, on

22 Thursday. And so we apologize for our late respo nse to it.

23 We scrambled . . . in great surprise, from what w e saw, to

24 provide Your Honor with a response before the wee kend,

25 knowing that Your Honor wanted to read it over th e weekend,


1 before this hearing. And I am prepared, Your Hon or, to

2 respond to both of those objections, if I may.

3 THE COURT: Well, let me hear from the objectors,

4 first, before I hear your response.

5 MR. SCOTT WEINSTEIN: Okay.

6 Our first issue, though, in response to

7 Miss Cannivet, is, one, she didn't even object, t he first

8 time, at her deadline. Even if she were in the s econd

9 group, which she's not, she filed her objection w ell after

10 the deadline. With pro sé litigants, you know, I usually

11 think that deadlines shouldn't be strictly adhere d to; but

12 Judge Covington sure spent a lot of time explaini ng to

13 Miss Cannivet that the Court has ruled and how yo u have to

14 do things. The objection is not well taken, Your Honor. We

15 filed an extensive reply to it. I don't believe it's

16 timely, at all.

17 THE COURT: In the back of my mind, it seems to m e

18 I remember the discussion as to whether she was a member of

19 the class in the first place.

20 MR. SCOTT WEINSTEIN: Yes.

21 THE COURT: I thought the answer was no.

22 MR. SCOTT WEINSTEIN: I said I don't believe that

23 she is. And I still don't know if she is, but I' ve spoken

24 to her since that day, because she asked me about my

25 opinion. Here is what I said at that hearing, an d I may


1 have been wrong.

2 I said she was in the Island Walk group, and I

3 don't know if she had one of the affected units - - I still

4 don't know -- but GE replaced all the refrigerato rs at

5 Island Walk well before we filed our lawsuit; and

6 Miss Cannivet told me, and I think it's a matter of record,

7 that she got a new refrigerator. She got a repla cement

8 refrigerator. So what I said is I don't believe she has

9 standing.

10 And I think I did say I don't believe she's a

11 member of the class, and I still don't know if sh e is. She

12 would be a member of the class if she ever owned one of the

13 affected units, and therefore I would be wrong, e ven though

14 it was replaced, although she wouldn't have stand ing because

15 she was unharmed.

16 THE COURT: So she would be a member of the class ,

17 but she would have no relief coming?

18 MR. SCOTT WEINSTEIN: Exactly.

19 And she's raising issues about fraud, and RICO,

20 and all of these other things. That's not part o f this

21 case, can't be a part of this class action, and s he would

22 have had, at that point an opt out right, because this class

23 includes opt out rights.

24 If she had a personal injury claim, because she's

25 mentioned personal injury claims in her objection , that's


1 also not released by this. If anybody swallowed an errant

2 piece of plastic or metal, that's not released by this case.

3 If anybody was sick because of bad food, because the

4 refrigerator was warm, that's also a personal inj ury case,

5 that's not included.

6 So she got a new refrigerator. She doesn't

7 have -- she doesn't have the damages that she wou ld need to

8 have to get some relief. She doesn't have a refr igerator

9 that requires additional warranty protection. Sh e's not

10 entitled to a replacement unit. So I don't belie ve she has

11 standing, because she doesn't have any damages. But I think

12 I might be getting ahead of myself.

13 THE COURT: Well, what's the Court's obligation t o

14 even hear from her?

15 MR. SCOTT WEINSTEIN: If she's a member of the

16 class, she's a member of the class. I think the Court has

17 an obligation to listen to timely objectors.

18 THE COURT: How do I know she's a member of the

19 class?

20 MR. SCOTT WEINSTEIN: I think she'd have to prove

21 it. The settlement documents say that you have t o provide

22 some sort of proof -- an invoice, or some sort of proof --

23 that you own, or owned, since, I think, 2001, one of these

24 units.

25 THE COURT: So, if she had ever owned one of the


1 units since 2001, even if it got replaced, after that, your

2 view would be she's a member of the class.

3 MR. SCOTT WEINSTEIN: If she ever owned it since

4 2001, she's a member of the class, because that's what the

5 definition said. Anybody who owned, or owns, sin ce 2001,

6 one of these models, is a member of the class. S he would

7 be. Although none of the relief applies to her.

8 THE COURT: So she could be a member of the class ,

9 and conceivably could object, but couldn't get an ything from

10 the class.

11 MR. SCOTT WEINSTEIN: That's my view, Your Honor.


13 Let's hear from the defendant, first, and then

14 hear from the objectors. Counsel, and then the p ro sé

15 objector.

16 MR. WALLER: Your Honor, I don't think we have

17 very much to add at this point. Just a couple of little

18 points.

19 Mr. Weinstein did mention that the attorneys

20 general, nationwide, were notified of this. And we did send

21 out 50 notices to attorneys general, and a 51 st to the

22 U.S. Attorney General in Washington. And we have gotten no

23 objections from, or motions to intervene, from an y of those.

24 We did get an inquiry, from the Vermont Attorney General,

25 questions about notice plan, and they wanted copi es of the

ARGUMENT BY MR. WALLER 22

1 ads that were published. We sent that informatio n, you

2 know, up to them, and have not heard back from th em.

3 Another point I would make is the Florida Attorne y

4 General, when we were doing the negotiations, bot h

5 Mr. Weinstein's office and our office provided ex tensive

6 information to the Attorney General for the State of

7 Florida; and, again, there's been no -- no interv ention, or

8 no objection from any of them. I just want to ma ke that

9 point, Your Honor.

10 MR. SCOTT WEINSTEIN: And may go out of order and

11 respond to something Mr. Waller says. First of a ll, my name

12 is Mr. Weinstein, and the only reason I mention i t is

13 because Mr. Weinstein from Texas is Weinstine (ph onetic).

14 THE COURT: I was going to ask you two guys about

15 that. Looks like you spell it the same way.

16 MR. JEFFREY WEINSTEIN: We'll work that out later .

17 THE COURT: Some people can't agree to anything.

18 MR. SCOTT WEINSTEIN: With respect to the attorne y

19 general issue, I forgot to mention this: The Flo rida

20 Attorney General's Office became heavily involved in this,

21 probably because of the publicity. I know Miss C annivet

22 contacted them, and Senator Saunders contacted th em, and

23 they contacted me. And they wanted to know every thing we

24 were doing. And I told them the categories of do cuments we

25 have, but I can't give them the documents. So th ey asked GE


1 for those documents directly. And they told me, and GE told

2 me the same, that they met with people at the AG' s office,

3 showed them exactly what we looked at. I was abl e to then

4 talk to the attorney general, compare what we hav e seen and

5 what they have seen. And Miss Cannivet also prov ided them

6 with thousands of documents, which they reviewed with me,

7 and told me that I am not missing anything in the group of

8 documents that I have. And they actually assiste d me in

9 determining that group of model numbers that I me ntioned

10 before, that seemed to be affected.

11 So there was a lot of communication, including

12 with Attorney General Crist, himself, who actuall y became

13 personally involved in the case at one point, and appointed

14 an assistant just to deal with this case.


16 Mr. Weinstein? Let me hear from you.

17 MR. JEFFREY WEINSTEIN: May it please the Court.

18 Would you rather I approach the lecturn, Your Hon or?

19 THE COURT: Please.

20 MR. JEFFREY WEINSTEIN: May it please the Court,

21 counsel.

22 Thank you very much for the great privilege of

23 speaking in a Florida court. You have allowed me to be

24 admitted pro hac vice in this matter, and I certa inly

25 appreciate that, as well as my client, Mr. Davis, so thank

ARGUMENT BY MR. JEFFREY WEINSTEIN 24

1 you very much.

2 THE COURT: Did they charge you a fee?

3 MR. JEFFREY WEINSTEIN: I believe they did, your

4 Honor.


6 MR. JEFFREY WEINSTEIN: Although it's probably no t

7 enough for this great honor and opportunity.

8 THE COURT: I may have to increase that, dependin g

9 how long you take.

10 MR. JEFFREY WEINSTEIN: Yes, Your Honor. I'll

11 make it brief. And I didn't want to be called We instein

12 Texas, because I didn't want that just to be offe nsive, so

13 I'll have to continue on whichever way the Court feels about

14 that.

15 My client, Brent Davis, is a member of the class.

16 He received a notice from General Electric. He i s one of

17 the people in the supplementary group that Mr. We instein

18 refers to. He has not had an opportunity to obje ct to the

19 prior hearing that occurred in this case, and, th erefore, as

20 a matter of housekeeping, Judge, on behalf of Mr. Davis, I

21 object to all of the affidavits that have been su bmitted

22 thus far, because they're hearsay, and Mr. Davis has not had

23 an opportunity to cross-examine those witnesses b ecause of

24 the affidavit. And I speak generally of a few af fidavits.

25 The affidavit of, I believe it's Vena Damodar,


1 D A M O D A R. I can't even read my own handwrit ing. She's

2 with GE. The affidavit of Ken Edwards, he's with the direct

3 mail company, SDRNNC. The affidavit of Antoinett e,

4 R A C I O P P O. Potentially she's the communica tions

5 director at OMD, which I guess had something to d o with

6 determining that notice should go to people only that make

7 more than $50,000. Affidavit of William Bonner, program

8 manager/customs relations at GE. As well as all of

9 counsels' affidavits concerning attorney's fees.

10 Your Honor, we basically have three points that w e

11 object to this class action proposed settlement.

12 One, the extended warranty period is not one year .

13 By agreement, these folks came up with a plan tha t the

14 extended warranty period would be begin as of the date of

15 the notice, which was January 13, 2006. It would run to

16 January 12, 2007. So the settlement is not fair,

17 reasonable, or adequate, and because the addition al warranty

18 period covers times in the past, before class mem bers, one,

19 had the right to make an extended warranty claim, and two,

20 before they had the notice of a right to make an extended

21 warranty claim.

22 The extra year of warranty protection runs from

23 January 16, 2006 to January 12, 2007. The settle ment will

24 not be approved, at all, at least until today, Au gust 21,

25 2006, if that's the Court's pleasure, and the rig ht to make


1 the warranty claim does not exist until the appro val is

2 final, contrary to what Mr. Weinstein said a few moments

3 ago. Which is at least 30 days after that. Thus , class

4 members could not know that they had a warranty p rotection,

5 and had legal right to warranty protection, durin g the time

6 period between January 13, 2006, and the final ap proval of

7 the settlement. Thus, there is no real extra yea r of

8 warranty protection, at all.

9 Our second point, Your Honor, is that the --

10 THE COURT: Let me stop you there.

11 MR. JEFFREY WEINSTEIN: Yes, Your Honor.

12 THE COURT: Is your complaint about the year

13 period, or just about when the year starts?

14 MR. JEFFREY WEINSTEIN: When the year begins.

15 THE COURT: So you don't have a problem with it

16 being a one-year period, you just want it to star t when I

17 sign the order, basically.

18 MR. JEFFREY WEINSTEIN: That's correct, Judge.

19 And, in fact, that's how I attempted to communica te with

20 Mr. Weinstein, so that we could enhance the value of the

21 class to the participants by extending the time f rom the

22 time that the Court approves, if it does, this se ttlement.

23 And Mr. Weinstein was kind enough to then communi cate with

24 GE, and I was advised by Mr. Weinstein that GE de clined to

25 make that available to the class members.


1 Two, the claim requirement is unreasonable for

2 identified class members. Judge, you've got to r emember, GE

3 knows who these people are that have bought these

4 refrigerators. The settlement is not fair, reaso nable, or

5 adequate because it requires class remembers who, one, GE

6 already knows are class members, and two, desire to receive

7 additional warranty protection, to file a claim t o receive

8 any benefits. GE already knows the identity of m any of the

9 class members because they registered with GE, ma de a

10 warranty claim, or purchased an extended warranty . After

11 all, how does GE know whom to send notice of thes e 700,000

12 such notices in the class?

13 Thus, for class members like Mr. Davis, my client ,

14 the objector, GE already knows they're class memb ers, and,

15 based upon the settlement, are already entitled t o extended

16 year a warranty relief. There's no reason to mak e them file

17 a claim, other than to cut off their rights if th ey fail to

18 file a claim, by September 4, 2006.

19 So, contrary to what Mr. Weinstein said a few

20 moments ago, if you don't file a claim by Septemb er 4, 2006,

21 you do not get the benefit until next year.

22 And the final issue we'd present to the Court,

23 which we --

24 THE COURT: Let me stop you.

25 MR. JEFFREY WEINSTEIN: Yes, Your Honor.


1 THE COURT: I just need to take some notes here.

2 MR. JEFFREY WEINSTEIN: Thank you.

3 THE COURT: So your argument essentially is that

4 everyone who bought a refrigerator should automat ically be

5 included, without filing any claim, of any kind.

6 MR. JEFFREY WEINSTEIN: They should automatically

7 be included, and if there is an attestation requi rement,

8 then they should obviously have to file an attest ation that

9 they bought a refrigerator, and prove who they ar e. But

10 they should be automatically included. They shou ldn't have

11 to fill out a claim form.

12 For example, you fill out the claim forms, you're

13 expecting people to send them back, and counsel's given you

14 some numbers on what that means. But basically w hat you're

15 doing is cutting off 95 percent of the people's r ights,

16 because what you do, by making them send back in the claim

17 form, even though GE knows who they are, is you m inimize the

18 number of people who are entitled to benefits. T here's no

19 basis for that, because GE already knows who they are. And

20 they already know they have a defective product.

21 THE COURT: All right. What's number three?

22 MR. JEFFREY WEINSTEIN: Number three is that the

23 claim requirement is unreasonable for all other c lass

24 members. That would be the once that are unident ified. The

25 settle is not fair, reasonable, or adequate, and we object


1 to some because it requires a class member, who G E has not

2 identified as a class member, who desires to rece ive

3 additional warranty protection, to file a claim t o receive

4 any benefits.

5 If the class members are objectively

6 ascertainable, as they must be for the Court to c ertify the

7 class, then there's no reason for these claim mem bers to

8 file a claim. If they are a member of the class, they are

9 automatically entitled to this relief. There is nothing

10 they need to prove or attest to in a claim form, as

11 evidenced by the fact that the claim form for thi s relief,

12 unlike the other forms, does not include an attes tation

13 clause.

14 They could simply show that they are a member of

15 the class by doing so when they file a claim. Th ere's no

16 reason to make them file a claim other than to cu t off their

17 rights if they fail to file a claim by September 4, 2006.

18 Basically, just trying to eliminate people's righ ts, Your

19 Honor.

20 THE COURT: So basically, instead of having a

21 claim filed by September the 4 th , 2006, your view would be

22 they can -- they're covered until the end of the one-year

23 period, whether that's January 12 th , '07 or whatever I

24 say.

25 MR. JEFFREY WEINSTEIN: That's a great question.


1 Under the agreement that these parties have

2 already reached, Judge, if you don't reach an agr eement

3 today, and set this off until January of 2007, th e class

4 members continue to receive a benefit. Yet if yo u approve

5 this settlement, their benefits will be precluded if they

6 don't file a claim by that September deadline. S o it's in

7 the best interests of the class members for the C ourt not to

8 rule, or to deny the class, and they could contin ue to do

9 exactly what it is that they have been doing by a greement.

10 THE COURT: Well, it's pretty attractive, telling

11 the Court that they could not do anything, and it 's all

12 right.

13 MR. JEFFREY WEINSTEIN: I think that's right. If

14 that's the agreement that they have reached, and they would

15 continue to do it, that would be in the best inte rests of

16 the class members.

17 THE COURT: So you want me just to sit on this

18 case for what, until I take senior status in abou t ten

19 years?

20 MR. JEFFREY WEINSTEIN: If that's the Court's

21 pleasure.

22 Now, under the agreement, if the Court doesn't

23 actually approve the settlement by a certain date , they can

24 back out; but, if you reset this case until Janua ry

25 the 13 th , 2007, all the people that I believe I'm arguing


1 on behalf of will continue to receive benefits.

2 THE COURT: You can probably rest assured I'm not

3 going to do that.

4 What's next?

5 MR. JEFFREY WEINSTEIN: That's it, Judge.


7 MR. JEFFREY WEINSTEIN: I would like the

8 opportunity, if it's okay with the Court, to actu ally put on

9 some testimony at some time.

10 THE COURT: As to what?

11 MR. JEFFREY WEINSTEIN: As to some of the

12 questions that I believe are necessary to respond to these

13 issues that I placed before the Court.

14 THE COURT: I'm giving you a chance to argue now.

15 If you want to make a proffer, you can make a pro ffer, but

16 I'm not going to hear testimony. At least, that' s not my

17 initial plan.

18 MR. JEFFREY WEINSTEIN: Your Honor, it's my

19 understanding that the evidence would have to be presented

20 to the Court. There is no evidence before the Co urt.

21 There's only argument of counsel.

22 THE COURT: That's right so far.

23 MR. JEFFREY WEINSTEIN: So I hope the Court will

24 allow me the opportunity to place the testimony o n the

25 record.


1 THE COURT: My hope is you are going to tell me

2 what the -- make a proffer as to what it is.

3 MR. JEFFREY WEINSTEIN: All right. Would the

4 Court like me to do that at this time?

5 THE COURT: I would.

6 MR. JEFFREY WEINSTEIN: Your Honor, if the Court

7 will allow me to call a witness, I would go throu gh

8 questions concerning whether it was the intent of this

9 agreement that there'd be an additional one year of warranty

10 protection; that GE is not bound by the settlemen t until

11 approved; that, when will GE be bound? There's n ot a

12 one-year extended warranty, because notice is not the issue.

13 Notice is all notice that will get the right if a pproved.

14 All class members are entitled to an extended war ranty. The

15 actual claim requirement, GE already knows who ma ny of the

16 club members are. There's no purpose in making 4 75,000

17 people file a claim. There's harm to class membe rs from the

18 requirement. Basically, the same points apply to

19 non-identified class members as to identified cla ss members.

20 And I have a hypothetical that I believe will sho w how

21 unreasonable this entire matter is.

22 THE COURT: I didn't hear anything that's

23 different than the argument that you made.

24 MR. JEFFREY WEINSTEIN: Would the Court like me t o

25 go through each of the questions that I intend to ask?


1 THE COURT: No. But, as I heard your proffer,

2 that's what you just argued to me, all --

3 MR. JEFFREY WEINSTEIN: May I please have the

4 opportunity to call Mr. Weinstein for a short que stion and

5 answer, Your Honor?

6 THE COURT: No, sir.

7 MR. JEFFREY WEINSTEIN: At the conclusion of the

8 hearing, may I have an opportunity to read into t he record

9 what my questions would have been?

10 THE COURT: No. I told you I want you to make a

11 proffer of what your anticipated testimony will b e. Can you

12 do that?

13 MR. JEFFREY WEINSTEIN: May I approach.

14 THE COURT: For what purpose?

15 MR. JEFFREY WEINSTEIN: To show you an outline of

16 the questions.

17 THE COURT: I don't need to know what the

18 questions are. I need to know the proffer.

19 MR. JEFFREY WEINSTEIN: To prove the points that

20 I --

21 THE COURT: Do you know what the answers are?

22 MR. JEFFREY WEINSTEIN: Do I know the answers?

23 THE COURT: Or are you just fishing.

24 MR. JEFFREY WEINSTEIN: I believe I know the

25 answers.


1 THE COURT: Are they different than what you just

2 argued to me?

3 MR. JEFFREY WEINSTEIN: I don't know what the

4 answer is to that, because I don't know how Mr. W einstein

5 will answer the questions.

6 THE COURT: All right. Thank you.

7 MR. JEFFREY WEINSTEIN: I may sit down?


9 Are there any pro sé members of the class that ar e

10 present, that wish to speak?

11 CATHERINE CANNIVET: Yes, Your Honor. May I

12 approach?

13 THE COURT: You may. If you'll use the podium,

14 please?

15 CATHERINE CANNIVET: Good afternoon, Your Honor.

16 THE COURT: You need to tell me your name, first

17 of all.

18 CATHERINE CANNIVET: My name is Catherine

19 Cannivet.

20 THE COURT: And spell your last name, please.

21 CATHERINE CANNIVET: C A N N I V E T.

22 THE COURT: I V E T?

23 CATHERINE CANNIVET: That's correct.

24 THE COURT: Okay.

25 CATHERINE CANNIVET: Once against, Your Honor, I

ARGUMENT BY MS. CATHERINE CANNIVET 35

1 find myself in the most uncomfortable position of trying to

2 bring information forward to the Court or a respo nsible

3 party that we feel that is critical information. I was in

4 the same position April 27 th , and I think that the history

5 and the record demonstrates that the information that my

6 partner and I have tried to provide to class coun sel, the

7 Court, the attorney general's office, has, in the past,

8 proved to be beneficial and critical to the class .

9 My partner and I put a web site up April of 2005.

10 At that time, we had no way of anticipating what we were

11 going to learn through this web site and who woul d be

12 contacting us. We felt a great sense of responsi bility for

13 the information that came into our possession, an d we've

14 always tried to provide that to class counsel. W e were

15 never successful.

16 In October of 2005, we supplied what we had to th e

17 attorney general's office, and I went to Tampa, a nd I met

18 with them. Included in those documents and that information

19 was proof that the 20 and the 25-cubic-foot model s were

20 defective, and needed to be included in the settl ement. At

21 that time -- prior to that, they were not going t o be

22 included, per Mr. Weinstein. And the reasons he gave me

23 that they weren't going to be included did not ma ke sense.

24 The information that has come to us because of

25 this web site comes from thousands of consumers a cross the


1 country, where we've been contacted by other sour ces,

2 employees of GE, current and ex, union people. I t's . . .

3 our information has come from sources other than GE,

4 themselves, and it's always proved to be a little bit more

5 different than what class counsel has been able t o obtain.

6 They're relying totally on what GE provides to th em.

7 As a result of going to the attorney general

8 office, the 20 and the 25's were then included. Had that

9 not happened, the 304 models would have only be a bout 150.

10 The second time it happened was prior to the

11 hearing of April 27 th . Again, through communications and

12 information to the web site, we knew that the not ification

13 program was seriously flawed.

14 I had a phone conversation with Mr. Weinstein the

15 week before the hearing. I had already sent him some

16 e-mails, trying to indicate to him that there wer e problems.

17 During that phone conversation, I stressed to him that this

18 notification problem was so -- so bad, and so fla wed, and I

19 asked are you going to do something about it? He indicated

20 to me, yes.

21 I said are you going to file an amendment, seek a n

22 extension, make some kind of provision for these people that

23 haven't received notification? He said yes.

24 I asked him do you know the names of the companie s

25 that have managed GE's databases over the years, and the


1 names of the actual databases, which we had alrea dy

2 researched, and we had a very good idea where the records

3 were. From the very beginning of this, from befo re this

4 class action was filed, when I first got involved , within

5 the first 60 days, the biggest discovery we made was a huge

6 problem with missing service records.

7 So, at any rate, Mr. Weinstein assured me that he

8 was going to do something.

9 Just prior to the hearing, we checked. We saw

10 that nothing had been filed. Outside of the cour troom, in

11 the hallway, I asked him, are you going to do som ething

12 about the database problem? And he just grimaced and walked

13 away. It was at that point that I filed that las t-minute

14 plea that I did, because I didn't feel that they were even

15 going to bring the subject up.

16 Counsel stood here and represented to the Court

17 that GE brought this to his attention just that m orning.

18 That was not true. Thankfully, the Judge -- you know --

19 recognized that, once GE admitted the problem, an d

20 Mr. Weinstein admitted the problem, she granted t he

21 extension, and, as a result, another 270 some tho usand

22 people were identified. It's disturbing and frig htening to

23 think that, had we not taken that action that mor ning, that

24 this would have received approval at that time.

25 It's a very difficult position to be in when


1 you -- when you . . . find yourself in a position where

2 you've received information that is very importan t, and it's

3 not limited to information that we have made publ ic through

4 the attorney general's office. There's other inf ormation

5 that has come to us that is sensitive, very, very important,

6 that I've tried to provide to class counsel.

7 There was a time I received contact from a source ,

8 and I knew this was a very serious situation, and critical,

9 and I sent an e-mail to Mr. Weinstein, and asked if I could

10 meet with him, confidentially, over something ver y

11 important. It was something I didn't even want t o speak

12 about over the phone. I did not receive a reply. I left a

13 phone message detailing the nature and the source of the

14 contact, and that I needed to speak to him. He d id not

15 reply.

16 And this has happened continuously throughout thi s

17 entire process. Information that we desire to tu rn over to

18 a party that would take possession of it and be r esponsible

19 for it, it never happened. Aside from what we've provided

20 to the attorney general's office. But we are sti ll sitting

21 on information that we have always felt is very c ritical to

22 this class.

23 As far as me being a member or not a member, I do

24 have that proof today. I am a member of the clas s.

25 Mr. Weinstein's known this all along.


1 At the hearing, the subject of my status as a

2 member came up, again, at the end of the hearing. The

3 notice and claim forms with my name and address o n it, from

4 the GE moisture office, I had with me, in court, and my

5 partner handed them to Mr. Weinstein; and he stoo d in this

6 courtroom, with those forms in his hands, and rep resented to

7 the Judge that I was not a member. At this point , after the

8 hearing of April 27 th , communications began to pour in

9 from members who were not receiving the benefits.

10 The claims administration process is flawed. The y

11 are denying people that have valid claims, and th is is

12 happening in a horrendous manner. These class me mbers are

13 taking the time to read the notice, understand it , fill out

14 the forms, dig out receipts, only to be denied. And these

15 are people that have had moisture related repairs , they may

16 have had five or six repairs, and they're not bei ng given

17 their refrigerator. People that have paid for mo isture

18 related repairs are not being reimbursed. They'r e being

19 told that's not moisture related, when, clearly, from what I

20 understand, and my knowledge of these refrigerato rs, these

21 are moisture related repairs.

22 The reason we felt we needed to approach the Cour t

23 again, we came to that conclusion, end of July, b ecause it

24 was just very clear to us there was a real proble m with the

25 claims administration process.


1 After the hearing of April 27 th , I sent an

2 e-mail communication to Mr. Weinstein, asking him to clarify

3 his statements to the Court that I wasn't a membe r. I asked

4 for him to make a determination, am I or am I not a member.

5 He replied that he -- and I explained the reasons I felt I

6 was a member. His response was, "I see your poin t. I'll

7 have to think about this." I never received a re sponse

8 back.

9 Weeks later, when we felt it was time to turn the

10 information that we had over again, I wanted to a pproach the

11 Court in the proper manner. At the last hearing, the Judge

12 told me that I should not have tried to go to cla ss counsel

13 or the attorney general's office, I should have c ome to the

14 court; so I knew, this time, we had to approach t he Court.

15 We are not attorneys.

16 So I need to determine first of all, how do I

17 approach the Court. As a member objector? As a nonmember

18 intervenor? I sent another e-mail communication to

19 Mr. Weinstein, the second time, asking for clarif ication,

20 and told him this would determine my future actio ns. I

21 never heard back from Mr. Weinstein. He was out of the

22 office until August 7 th , so I gave it . . . August 7 th ,

23 I didn't hear from him, 8 th or the 9 th . At that point, my

24 partner and I were prepared to submit an objectio n, me as a

25 member, her as a nonmember intervenor. We didn't know what


1 else to do.

2 And then I placed a phone call to Mr. Mason's

3 office, and he did confirm my status, on the 14 th , as a

4 member. That's why I filed -- the objection was late. I

5 was trying to ascertain how do I approach the Cou rt. If I

6 approached as a member, and Mr. Weinstein would a gain

7 represent to the Court that I wasn't a member, I may not

8 have been able to even speak. So it was at my -- my ability

9 to even find out how to bring information forward was

10 impeded because I was not given an answer.

11 As a member, Mr. Weinstein represents me in this

12 class. I think it was entitled to a quick and ho nest answer

13 to whether or not I was a member.

14 We have accumulated thousands of pages of

15 evidence. The communications that have come in s ince

16 April 27 th , I think, are most important.

17 I did come prepared here, today, with some

18 examples of what people are saying. I'm not sure if you

19 want to receive that now, but all we desire to do , and all

20 we've ever desired to do, is to turn over informa tion we

21 feel is very important; and, in the past, we have

22 demonstrated we have been correct.

23 Regarding the recent filings by Mr. Weinstein, I

24 expected a strong reaction, but I honestly expect ed it to be

25 honest and professional. He attacks my credibili ty by


1 making an outrageous lie, in a signed court docum ent, under

2 penalty of perjury. I couldn't believe he did it . That I

3 asked him, or demanded $10,000, for documents, wh en he came

4 to my home, for the record, that is not true. Fo r the

5 record, we've never exploited the situation, or a ttempted to

6 make money off it.

7 Throughout the past year, the whole time we have

8 had that web site up, many people have tried to e ncourage it

9 to go nonprofit, put Pay Pal up, at least try to recoup your

10 expenses. We have incurred expenses to this poin t, and we

11 purposely never put Pay Pal out, and never tried to solicit

12 money from anybody, because we thought it would b ring our

13 credibility under question. We have remained on this issue,

14 and worked very hard all this time, because we fe lt

15 responsible for putting that web site up, and we felt a

16 sense of responsibility to the people and the mem bers who

17 were providing information to us, and we never wa nted our

18 credibility ever questioned. That is an absolute untruth

19 that we ever demanded $10,000 from him.

20 The e-mails that he included, the pages and pages

21 of e-mails, he was selective in the e-mails he ch ose. I

22 think that, if e-mails are going to be submitted, all of

23 them should be. I think it gives a more accurate picture.

24 There were many times that I sent him e-mails, he did not

25 respond to me. Phone call messages I left, he di d not


1 return. And these were -- at times, these were a t critical

2 points, where information that we had went beyond just a

3 communication that we received from someone that I wanted to

4 forward to him. It was at critical times through out the

5 process, when we felt that a source that came to us, or that

6 a source that needed to be investigated, or somet hing that

7 we had acquired needed to be turned over.

8 In his e-mail communications, he tried to make it

9 look like he was interested in the information. But what's

10 interesting is, once he would put that in an e-ma il that he

11 wanted to receive it, when I would try to attempt to pick a

12 time or place to deliver it, or have him pick the m up, he

13 wouldn't return my call, he wouldn't return the e -mail.

14 So it's been a difficult position to be in,

15 because we -- you know, I felt, way back in the b eginning,

16 that -- when the settlement agreement was announc ed, I was

17 extremely pleased with the benefits. The benefit s, as they

18 are, do rectify the problem. But what happened w as the

19 notification process was flawed. We discovered t hat.

20 First. And, with the claims administration, the benefits

21 are not being provided to the members. They are entitled to

22 those benefits, and they shouldn't be denied vali d claims.

23 The monitoring mechanism that should be in place,

24 all that is in place is that GE is turning over r eports.

25 It's the fox patrolling the hen house. I don't t hink that


1 GE's records have ever been reliable, nor should they be

2 trusted, because the information that we get from sources

3 other than GE seems to always prove itself correc t.

4 The only reason I'm here today is just to bring i t

5 to the Court's attention that, if this receives f inal

6 approval today, all of these people that have att empted to

7 get the benefits, they did not get them, and they never

8 will. And anyone, from this point forward, that tries to

9 get benefits, may run into extreme difficulty.

10 It's not isolated cases we're hearing. There's

11 also people, still -- it concerns me. I'm not qu ite sure

12 that everyone that was accessible on a database h as still

13 been found. I have had a couple communications, in the past

14 week, people that had extended warranty contracts through

15 Sears, had repairs through Sears, yet didn't rece ive notice.

16 So I don't -- I don't know what's wrong there.

17 Our concern here, today, is if you would prove

18 this -- I understand you have to follow rules. I will

19 respect any decision you make. But if this recei ves final

20 approval today, my feeling is that a great many p eople that

21 have been harmed have not received justice and re stitution,

22 and a great many people that are in a situation, right now,

23 being harmed, are never going to be made whole ag ain, or be

24 treated fair.

25 That's all I have to say unless you have any


1 questions.

2 THE COURT: I do. I can't tell whether you objec t

3 to the settlement, itself, or to the monitoring m echanism.

4 THE DEFENDANT: It would be the monitoring

5 mechanism. I researched thoroughly, Your Honor, class

6 actions, and what courts seek in a class action; and, when

7 the settlement was announced, I thought it was ex tremely

8 fair. It truly did provide the benefits that wer e needed.

9 But the settlement is only fair if the people are receiving

10 the benefits.

11 I think the problem here is the monitoring

12 mechanism, and I think that's been a problem from the

13 beginning; and that goes way back in December of 2004, when

14 I first discovered the problem of missing service records

15 had been . . . throughout this entire process, th e missing

16 service records, missing data bases, and it goes beyond

17 that. The moisture related definition is very br oad. It

18 encompasses a great deal of symptoms, but, yet, w here we get

19 into a problem is, when it comes down to the spec ific parts,

20 or the nature of the repair, is where people are being

21 denied.

22 I know, myself, from my own personal experience,

23 when I owned the first refrigerator, in 2001, the re was --

24 for a long time, GE, and nobody else, could figur e out what

25 was wrong with these refrigerators. There was mi sdiagnoses.


1 Technicians, including GE technicians, were repla cing

2 motherboards, defrost heaters, everything. Nobod y could

3 find out how to fix these things.

4 So, consequently, many people, once they were out

5 of warranty, paid for repairs, only to discover i t didn't

6 correct the problem. Then they'd have to pay for another

7 repair. And these are people that spent 200, 300 , $500 in

8 repairs, only to have the refrigerators still not fixed.

9 And then, when they submit a claim, they're being denied,

10 saying, well, that's not a moisture related repai r. And

11 then, when the people question GE, well, what is a moisture

12 related part or repair, they're not given answers . The

13 defects with these refrigerators have more to do with the

14 design than anything else. So, consequently, man y things go

15 wrong, and many parts fail. Parts that rust, and motors

16 overwork and burn out, and everything goes wrong with them.

17 But what I'm concerned about is the couple years

18 there, that time frame when they didn't know what was wrong,

19 they didn't know how to fix it. At some point, I think

20 2005, they started replacing doors, and they disc overed that

21 that fixed a lot of the problems. But then again , many

22 people who were getting their doors replaced, it was not

23 fixing the problems. People were on their second , third,

24 fourth set of doors.

25 There's so many things wrong with these


1 refrigerators, if it was as simple as saying this part is

2 defective, or that's what is wrong, this would go so much

3 easier; but, because there are so many problems, and so many

4 things wrong, and so many parts that go bad and h ave to be

5 replaced, to allow GE to pick and choose, and tel l people

6 what they're going to be reimbursed for and what they're

7 not, is not fair, and it's creating difficulty, b ecause GE's

8 own techs were misdiagnosing these things, and di dn't know

9 how to fix them. And so you've got all these peo ple paying

10 for these repairs that are not getting their mone y back.

11 The product was so bad, I don't even know that

12 they should be allowed to even pick one part that they are

13 going to not reimburse for, because both sides of the unit

14 have problems, and fail. It's a horrendous . . . horrendous

15 problem, and there's no definition as to what par ts, what

16 nature of the repairs, number one; but, number tw o, you have

17 to think of all those people, for the good couple years, who

18 were getting repairs, or paying for repairs, when it wasn't

19 correcting the problem. They should get their mo ney back.

20 It's not their fault that nobody could diagnose w hat was

21 wrong with their refrigerators and how to correct the

22 problem. These consumers suffered during those t imes.

23 The health and safety hazards, Your Honor,

24 honestly, is the reason me and my partner have st ayed on

25 this for so long. Because we read the communicat ions from


1 people. I have personally read 3,000 communicati ons. I

2 have taken phone calls.

3 I wish that class counsel would have taken the

4 time to access the 2500 pages that are at the att orney

5 general's office, and read what people say, how t his affects

6 them. That is the only reason we have spent almo st two

7 years on this, and have not abandoned the project , because

8 we understand the seriousness of it, and the harm that has

9 been done to people.

10 These are lower end refrigerators. These are not

11 the higher end models, so the people that got stu ck with

12 these things are generally middle or lower income people.

13 These are hard working people, young families wit h children,

14 seniors on fixed income, people lives on disabili ty, the

15 most vulnerable, and weakest of the class, becaus e people

16 that had the money, that got tired of it, got rid of their

17 GE, and went and replaced it with something else. Those

18 people weren't harmed as great. If they had thre e

19 breakdowns, they got rid of it. The ones that we re stuck

20 and hurt were those that to couldn't afford to re place their

21 refrigerator, and have had to live with breakdown after

22 breakdown after breakdown.

23 I know, personally, what, that's like, and I went

24 through it. And when you have a family, and a ho me, and

25 children, and you're trying to keep your food saf ely, and


1 you have to throw out food when you just went gro cery

2 shopping, and it breaks down, and you have to tak e off work

3 to meet a technician, get it repaired, only to fi nd that it

4 breaks again, it's a nightmare to live with.

5 Fortunately for me, I never had to pay for any of

6 my repairs, because I'm a strong person, and I re fused. My

7 neighbor across the street, who was a nice, sweet , polite

8 person, never fought with GE, and she paid for he r repairs.

9 Same refrigerator, same problem.

10 THE COURT: Let me stop you, because I think you' d

11 go for as long as I let you.

12 CATHERINE CANNIVET: I would.

13 THE COURT: That's my sense of it. You know,

14 after you vent a little bit against GE, that's fi ne, but is

15 the bottom line still that you think the agreemen t should be

16 approved, but it's the enforcement, or the monito ring of the

17 agreement, that you have your problems with? Is that still

18 the bottom line?

19 CATHERINE CANNIVET: Yes. I think the settlement

20 agreement should be enforced. I think that an ou tside,

21 independent monitoring mechanism needs to come in and review

22 these claims that have been denied, and take over the claims

23 administration, so that it's done fairly.

24 THE COURT: So if GE does what the agreement says

25 they should do.


1 CATHERINE CANNIVET: Yes, everything would have

2 been fine.

3 THE COURT: You don't have a problem with that.

4 CATHERINE CANNIVET: I wouldn't have had a proble m

5 with the notification. I wouldn't have a problem with

6 claims administration. I've always been final wi th the

7 settlement agreement.

8 Where the problems came up, and where I was

9 disappointed with class counsel, is that no one w as watching

10 out for what was happening to the members, which we knew and

11 I couldn't even give that information to him. Th at's the

12 bottom line. I just want to see the people get w hat they

13 were promised, and those that have been denied, I think

14 those should be located, and should be reconsider ed, and

15 they should be refunded the money that they paid for

16 repairs.

17 THE COURT: All right. Thank you.

18 CATHERINE CANNIVET: Thank you, Your Honor.

19 THE COURT: Mr. Weinstein.

20 MR. SCOTT WEINSTEIN: Yes, Your Honor.

21 THE COURT: Why don't you address -- well, I

22 suppose in whatever order, I guess I'm . . . I'm interested

23 in your response to Mr. Weinstein's argument that ,

24 basically, your year isn't a year, because, parti cularly

25 with the duly noticed people, they're well short of a year.


1 MR. SCOTT WEINSTEIN: That's true. The year is

2 not a year, necessarily.

3 THE COURT: Why shouldn't it be a year?

4 MR. SCOTT WEINSTEIN: What Miss Cannivet just

5 raised explains it. In a way, we're being punish ed for

6 implementing the benefits immediately. The year was never a

7 year. Maybe unfortunately, there's some language that the

8 additional warranty protection lasts for one year from the

9 beginning date of the notice. That's the one pla ce in the

10 settlement agreement where the word a "year" come s from. It

11 didn't say a year of protection. That wasn't the purpose of

12 it. The purpose was for me. The purpose was for us. And

13 if Miss Cannivet -- and sometimes she did -- woul d forward

14 customer complaints to me, I would handle them fo r her. And

15 did I that on the few occasions she sent them.

16 What I would do is contact Mr. Bogard directly,

17 and say here is a consumer who says that they are a member

18 of the class -- and, by the way, let me add that just

19 because you have a claim form and a notice doesn' t mean that

20 you're a member, because you can call the toll fr ee number

21 and request one, and one is mailed to you. Anyon e who asks

22 for one gets one. So having one, having one, hav ing one

23 doesn't mean you're a member of the class.

24 Immediately, upon implementation of this, of the

25 benefit program, people got service. Therefore, the


1 neighbor across the street from Miss Cannivet wil l get

2 reimbursed, or has gotten reimbursed, for that se rvice.

3 Miss Cannivet didn't pay for repairs. If her

4 neighbor paid out of pocket, this program provide d this

5 neighbor should have gotten his money back by now , because

6 of the immediate implementation. The purpose of the

7 immediate implementation was so that, by the time we got

8 here today, much, if not most, of this would be d one, and

9 people wouldn't be suffering the way Miss Cannive t said. If

10 people are poor, they don't have to pay. Or even if they're

11 wealthy, they don't have to pay for service. If people need

12 a new refrigerator, they get a new refrigerator.

13 About the most important thing, I think, about

14 what she said, is that there is a program in the settlement

15 agreement and in the record that there is a speci al master

16 that this Court will appoint, if necessary, to so lve

17 problems between GE and the consumer, and we will get

18 involved in that. And then there is also a de no vo review

19 by this Court. There is a procedure for that.

20 But better yet, if Miss Cannivet would forward an y

21 e-mails she gets to me, I will take care of it. I spend

22 hours a day taking care of that. I work with Mr. Bogard.

23 He gets in touch with Bill Bauer, who's the head of customer

24 relations, and we deal with it.

25 That's how you help the consumer. Not by having


1 web sites, and doing all of these things, and get ting

2 paranoid, and worrying about all kinds of cover u ps. The

3 bottom line is it doesn't matter why these refrig erators are

4 going bad, it doesn't matter if they know how to fix them.

5 If they can't fix them, then they get a new one.

6 We knew that it was going to be complicated

7 figuring out why, so we didn't define the class a s somebody

8 who has this particular part broken. We said, if you have

9 one of these symptoms, you get free service; and if it can't

10 be fixed, you get a new refrigerator. And that's been

11 happening all of this time.

12 Your Honor, going back to what Mr. Weinstein said ,

13 there is no right, as he kept saying -- he said t here is a

14 right to have additional warranty protection. No , there is

15 not. We think we have a good case. But we don't have the

16 ultimate Uber case. There are some problems if w e had to

17 try this case. It's very complicated.

18 The settlement agreement was a product of

19 negotiation. There was give and take. As I said before,

20 the biggest problem was media implementation. I knew this

21 could go on, and on, and on, and it would be a ni ghtmare.

22 And I remember these conversations what about the people

23 now? We don't want until -- we thought it would be April,

24 now it's August. Think of the problems that woul d create.

25 And they gave in, they said okay, starting now, w e'll start


1 fixing refrigerators for free. We will even star t

2 reimbursements.

3 But, you know, Your Honor, we would have had

4 loved, for instance, if GE said, you know what, w e're going

5 to give -- we're going to agree, by this settleme nt

6 agreement, a lifetime warranty. anybody who has a problem,

7 we'll just replace it; and if that Breaks, we'll give them a

8 new one, forever, for their whole life. That wou ld have

9 been wonderful, and we would have, of course, fel t very

10 happy about that because we want the best results for the

11 consumer. Or, perhaps, if GE said we'll give the consumer

12 $200 and a new refrigerator, we would have been h appy. They

13 didn't do that. We agreed to do what they agreed to do.

14 The test is not whether it could be better, the

15 test is whether it's unfair. Mr. Weinstein said it's unfair

16 because consumers have a right to have additional warranty

17 protection. they don't have a right to it. The s ettlement

18 agreement gives them that right if they are a mem ber of the

19 settlement class, and if they send in a claim for m. That

20 creates that right. And that's a matter of negot iation with

21 GE.

22 And GE had their reasons for doing that. There

23 were logistical reasons. They had to know how ma ny people

24 were going to need it. They had to set up the

25 infrastructure. Settlement instructions, I don't want to go


1 into detail unless Mr. Bogard wants to explain, b ut it

2 doesn't matter why it was necessary, because it w as

3 negotiated, approved preliminarily, and it's fair . There

4 was no such right.

5 And, frankly, let's face it, what kind of

6 individual claim could Mr. Brent Davis have broug ht?

7 There's no evidence, number one, that he's even a class

8 member. I'm willing to assume he is, by the way. I'm

9 willing to assume he has a refrigerator. I don't want to

10 mischaracterize what Mr. Weinstein says, because, at one

11 point -- we've talked several times. I thought h e said that

12 Mr. Davis has not had a problem with his refriger ator. And

13 then Mr. Weinstein says, no, don't mischaracteriz e what I

14 said. I didn't say that. I said I don't know if he has a

15 problem with his refrigerator. So I'll stick wit h that.

16 What kind of individual claim could he had

17 brought? Well, I don't know if I have a problem with my

18 refrigerator, but I'm going to sue GE in Texas st ate court,

19 where, by the way, I believe the statute of limit ations

20 would have run by then, and then he would have no case. So,

21 instead, he says don't approve the settlement. W ell, if the

22 settlement is not approved, and I believe he know s this,

23 that GE has no obligation, whatsoever, to this cl ass.

24 If Your Honor says I deny your motion to approve

25 it, it's over. The people in the pipeline don't get a new


1 refrigerator, the additional warranty protection gets cut

2 off, and that's it. One day, we go to trial, at the end of

3 next year, 2008 and that's the bottom line.

4 I don't know if Mr. Davis has a problem with his

5 refrigerator, at all. What could he do, in his i ndividual

6 case, that's better than what we've done for him? I think

7 that's really the question.

8 THE COURT: Well, what's the answer to the

9 questions Mr. Weinstein was putting in the record with

10 regard to the settlement? I mean as to his -- as to the

11 second group of people, essentially, I mean, they have a

12 shorter period than the first group, so some clas s members

13 are more equal than others.

14 MR. SCOTT WEINSTEIN: I think it's just the

15 opposite.

16 THE COURT: Okay.

17 MR. SCOTT WEINSTEIN: I think what he's saying is

18 it ought to start today, if Your Honor were to ap prove it,

19 and move for a year, or any amount of time from t oday. Well

20 that would have cut off people from the past. Wh at was

21 really happening, I think Mr. Bogard, even if he has to

22 testify about this, because he's doing this at GE , even if

23 somebody didn't know about the settlement -- and this was

24 negotiated -- if they called up and said I have a problem

25 with my refrigerator, come fix it, they get the s ervice for


1 free. And that's been happening since January of this year.

2 The notice, I believe, was adequate, more than

3 adequate, even without the supplemental notice. The

4 publication notice rendered it adequate. But we had to

5 do -- and, by the way, as Your Honor knows, and I don't know

6 if I need to raise it any more, what Miss Cannive t says is

7 untrue. We didn't know about that notice issue u ntil that

8 morning. If we knew about it, these gentlemen wo uld not

9 have flown in from out of town, and we wouldn't h ave spent

10 the time and energy getting ready. We told the C ourt here's

11 what the problem is. We learned it that morning. And I

12 believe that they learned it that morning, becaus e that's

13 what they told us.

14 It's just the opposite that some people get more

15 than others. What really happens is that everybo dy gets the

16 same thing from the same moment. Everybody began getting

17 free service from GE so that it's implemented at that

18 moment, for everybody, whether he knew about it o r not.

19 And the interesting thing is, from the

20 conversations I had with Mr. Weinstein, if Mr. Da vis doesn't

21 know he has a problem with his refrigerator, then he's not

22 going to know that he's going to get free service because he

23 doesn't have a problem. He doesn't have a proble m at all.

24 And if he did have a problem, and paid for it, he 'd get

25 reimbursed. And if he had three problems, and pa id for it,


1 he'd get reimbursed and he'd get a new refrigerat or. And he

2 has a problem after, he'd still get a new refrige rator. So

3 it starts now and goes forward from the same date . Nobody

4 ever said everybody gets a year of warranty prote ction.

5 THE COURT: It may have started at the same time,

6 but some people knew it was there, and some peopl e didn't

7 know, as I understand it.

8 MR. SCOTT WEINSTEIN: Right.

9 THE COURT: So if you are one of those that don't

10 know that this period had started back in January , you may

11 not call GE. You may call a local person --

12 MR. SCOTT WEINSTEIN: Right.

13 THE COURT: -- to get it repaired. And how would

14 you then take advantage of this?

15 MR. SCOTT WEINSTEIN: Well, if you're in the

16 supplemental class, you're going to get reimburse d. You

17 will get reimbursed if you pay for something. Bu t if you

18 call GE, or any GE authorized repair person, they would know

19 about this moisture program. And they have known . And I

20 know, anecdotally, that they know, because I hear from

21 consumers, and that's what GE's program has been.

22 It would have been unfair to actually change that

23 date. The only people that do have a longer addi tional

24 warranty protection, by the way -- and we negotia ted this --

25 are people who paid for an extended warranty up t o a certain


1 point because they paid extra to get it. We said it ought

2 to go longer for them, because they actually paid for money

3 for it, and I don't want that to overlap, I don't want to

4 take away a right from somebody who had one. But everybody

5 who owns one of these refrigerators, who has a pr oblem, gets

6 free service, whether they send the claim form in , whether

7 they knew about it, whether they didn't know abou t it.

8 THE COURT: How about the arguments that, for bot h

9 the known and the unknown, really shouldn't have a claim

10 form, at all, they'd just automatically be covere d through

11 the end of the time period?

12 MR. SCOTT WEINSTEIN: We negotiated it this way - -

13 and it was part of the negotiation that this is t he

14 mechanism by way. For instance, if somebody call ed just for

15 service, and didn't know about the class, the GE -- and I

16 know this, anecdotally, directly from consumers, would tell

17 them, well, we're going to send you a claim form. Send it

18 back, and we're going to issue this additional wa rranty

19 protection for you. Whether they knew about it o r not.

20 Whether they threw the claim form in the garbage when it was

21 sent the first time. So everybody that had this problem

22 from January 12 th through this coming year has this

23 additional warranty protection.

24 MR. MASON: Let me just address that question,

25 Your Honor.

ARGUMENT BY MR. MASON 60

1 Mr. Weinstein had said that one of the reasons he

2 contacted me was because of the Maytag washer set tlement.

3 Weinstein. Was because of the Maytag settlement. And one

4 of the provisions in that settlement was preregis tration,

5 that, if you wanted to get the benefits of the se ttlement

6 whether your defect manifested or not, you had to make a

7 claim by a certain date. And my opposing counsel knew I was

8 associated with that case. And when I negotiated with

9 Maytag, when I negotiated this, that's not my fir st choice

10 for a provision. The first choice was to get ver y much like

11 Mr. Weinstein suggested, to say why can't, as soo n as

12 somebody gets a defect, that's when a consumer wo uld first

13 know about it, why can't you get -- just why both er with a

14 claim form? Why not make a call and get relief?

15 We lost that argument in the negotiations with

16 Maytag in a sense. Not that we lost it, but we w eren't

17 successful in getting that provision. Neverthele ss, that

18 was a national settlement that was approved.

19 When we tried to take the strategy again, here --

20 and again, what did I hear from Mr. Bogard? Well ,

21 Mr. Mason, I'm looking at your Maytag settlement that was

22 just negotiated by you and approved, that's a pro vision that

23 other judges have found acceptable. So it put us in a weak

24 negotiating position, for sure. And the truth is , there is

25 nothing unfair about that provision. If there's greater


1 benefits that you can have a for a consumer, ther e's nothing

2 inherently unfair about it. And there's nothing unfair

3 about it to Mr. Davis. All he has to do is fill out a claim

4 form, and take advantage of the extended warranty .

5 It's something that Maytag and now GE insist upon ,

6 I imagine, because they want to know what their e xposure is,

7 from their perspective, from their business depar tment says

8 look, we are going to go ahead with the settlemen t. What's

9 our exposure? And their lawyers have to go back and say

10 we'll know by a certain date. All those claim fo rms will be

11 in, and we will look at our books and see what ou r exposure

12 is. So they have very compelling reasons, on the ir side, to

13 want that kind of provision, and it gets negotiat ed, and

14 it's just one of many, many terms that becomes a part of the

15 settlement process.

16 MR. JEFFREY WEINSTEIN: Your Honor, may I be

17 further heard for just a moment?

18 THE COURT: You may. If you come up to the podiu m

19 for me.

20 MR. JEFFREY WEINSTEIN: Thank your, Your Honor.

21 May it please the Court.

22 Your Honor, in the notice that my client received ,

23 the supplemental notice of class settlement, in

24 Section 3(b)(1), additional warranty protection,

25 Mr. Weinstein says that my client doesn't have a right. But


1 apparently he does. The additional warranty prot ection runs

2 for one year, from January 13 of 2006 to January 12, 2007.

3 And, if I had been allowed to ask Mr. Weinstein t his one

4 hypothetical, I would have asked him, "Let's assu me that my

5 client was identified by GE, and that he makes a warranty

6 claim for covered moisture problems on November t he 15 th

7 of 2006, and the settlement is final." I think h e wouldn't

8 have any trouble assuming that.

9 Under the settlement, that would be within the

10 extended warranty period; correct? And it would have been.

11 So this would be the very alleged benefit that th e

12 settlement was entitled to provide him. That's c orrect.

13 And, when he made the claim, GE could ask the

14 exact same questions that they're asking everybod y else in

15 the claim form to ensure that he's a member of th e class;

16 correct? And that's true.

17 Yet, under the settlement, Your Honor, he would

18 not be entitled to any relief simply because he d id not

19 identify himself to GE earlier, before he had the moisture

20 problem; correct? And I believe Mr. Weinstein wo uld answer

21 that that's correct.

22 THE COURT: Is that how you would answer it?

23 MR. SCOTT WEINSTEIN: Of course, because there is

24 still a claim cutoff. The time in the past doesn 't matter,

25 because he hasn't had a problem with his refriger ator.


1 THE COURT: The claim cutoff being September

2 the 4 th of '06.

3 MR. SCOTT WEINSTEIN: Right. Which he clearly

4 knows about, because, according to the documents, he

5 received a claim form in May. And I don't think he's even

6 tried to send it in.

7 THE COURT: So, basically, he has to send in a

8 claim by December the 4 th of '06, even though the time

9 period expires, what, three months, four months l ater?

10 MR. SCOTT WEINSTEIN: January 12 th of '07.

11 Correct.

12 MR. JEFFREY WEINSTEIN: And assuming, in the same

13 line of questioning, Judge it's not going to be f inal if the

14 Court were to agree to it today. There would be an

15 appellate time, etcetera. So he may not be entit led to any

16 of that benefit, whatsoever.

17 THE COURT: Say that again.

18 MR. JEFFREY WEINSTEIN: Sure. Just because, if

19 the Court chooses to approve the settlement today , it

20 doesn't mean that he has from August 21 st until January to

21 get a claim form in, or September to get his one year,

22 because it's not over when it's over today. Ther e's the

23 opportunity for an appeal. There's an opportunit y to

24 request a rehearing. I mean, things of this natu re could

25 extend the period beyond January the 12 th , 2007. Which


1 wouldn't allow him the opportunity to even have t he benefit

2 that he's entitled to pursuant this settlement. And I

3 think, if I was allowed to ask Mr. Weinstein if i t was the

4 intent of the parties to provide one year of addi tional

5 warranty protection, he would say that was correc t, and that

6 it wasn't the intent to provide less than a year additional

7 warranty protection, and it was not the intent to provide no

8 additional warranty protection, which is essentia lly what

9 would happen if the Court approved the settlement , yet we go

10 through some appellate timetable, and he doesn't get the

11 benefit.

12 THE COURT: That's not what he's told me.

13 MR. JEFFREY WEINSTEIN: I think, if we asked him

14 if it was the intent to provide a year of additio nal

15 warranty protection, he would say that's correct.

16 THE COURT: I think he would tell you that he has

17 provided a year, or it will be come January the 1 2th .

18 MR. JEFFREY WEINSTEIN: But wouldn't the class

19 members who received this notice be entitled to t he notice

20 of the year? They didn't receive that. They are not going

21 to get what he has negotiated for. They are enti tled to

22 know about that.

23 THE COURT: All right. What -- I have something

24 else I was going to ask you.

25 MR. JEFFREY WEINSTEIN: And I believe -- if could


1 I. I believe, if I asked him if the federal rule s of civil

2 procedure say that this action is not binding unt il approved

3 by the Court, he would agree with me there, that the

4 settlement agreement, itself, provides GE is not bound to

5 provide any of the relief, not bound to provide a ny of the

6 relief, until the Court approves the settlement, he would

7 say that's correct. That, because GE is not boun d by the

8 settlement until it's finally approved that, neit her the

9 settlement agreement nor the preliminary order re quired GE

10 to provide additional warranty protection before there is a

11 final approval of the settlement. They don't hav e to.

12 They're just doing this voluntarily.

13 Agree with me that the settlement agreement

14 provides that the effective date of the settlemen t shall

15 mean the later of, one, the day after the deadlin e for the

16 filing of any appeals from the final order and ju dgment, if

17 no notice of appeal is filed; or, if any notice o f appeal

18 from the final order and judgment is filed, the d ay

19 following the date on which the final order and j udgment is

20 not subject to final judicial review and appeal.

21 So, if the Court was going to approve the

22 settlement today, there's not appeal, then the ea rliest the

23 settlement would be effective would be September the 20 th ,

24 2006. 30 days to appeal under federal rules of a ppellate

25 procedure, 4A1(a).


1 And, if the appeal is filed, in all likelihood,

2 the settlement would not be final until after Jan uary 12 th ,

3 2007. I think he'd agree with me there.

4 If the Court does not approve the settlement,

5 class members will have no legal right, under the

6 settlement, to get an additional year of warranty

7 protection. I think he would agree with me there .

8 Similarly, class members had no legal right to

9 receive the additional warranty protection betwee n

10 January 13, 2006, and today, because the settleme nt was not

11 final. I think he'd agree with me there.

12 So, if a class member made a warranty claim in

13 January of 2006, GE was not bound, at that time, to the

14 extended warranty, was it. No, they weren't boun d to it.

15 They did it voluntarily.

16 I think he would agree with me that Mr. Davis is a

17 member of the class. The settlement provides tha t all class

18 members are entitled to the additional warranty p rotection.

19 I think he would agree with me.

20 There's no requirement they have suffered any

21 problems with the refrigerator, so to argue that he must

22 have some problem is not true. There is no requi rement of

23 any moisture related problems to be entitled to t he extra

24 protection. You're entitled pursuant to the sett lement

25 agreement. Nothing in the claim form for additio nal


1 warranty protection that requires class members t o state

2 they have suffered a moisture related loss, is th ere. And I

3 think he would agree with that.

4 That this is not a warranty claim. Basically wha t

5 we have means we got a settlement claim to receiv e

6 additional warranty protection. I think he would agree with

7 me there.

8 And the sole purpose is to confirm that the

9 claimant is, in fact, a member of the class. I t hink he

10 would agree with me there.

11 If I could, Judge, I handled a case involving

12 Western Union where Western Union -- I was class counsel --

13 where Western Union charged people a different ra te if they

14 used a credit card versus using cash. Western Un ion was

15 able to identify all the members of the class. W e sent

16 checks to everybody. We didn't require a claim f orm.

17 Whether it be 50 cents, two dollars, $25, whateve r it was.

18 We just sent the money out. I think that that's something

19 that could occur here.

20 THE COURT: I suppose the question is, is this

21 something that has to occur here in order to make it fair?

22 MR. JEFFREY WEINSTEIN: It is not something that

23 has to occur, it's just, in order to provide my c lient with

24 what he was provided by notice, the arrangements that have

25 been reached here do not comply with the notice t hat my


1 client received. He's not receiving the benefit that his

2 counsel argued for. He's being denied that benef it.

3 THE COURT: If I understand class counsel's

4 position -- and I'll have him tell me in a minute -- his

5 view would be your client is because he's getting a year,

6 the same year that anybody else would get. That is, from

7 January of '06 to January of '07.

8 MR. JEFFREY WEINSTEIN: How did he know about it

9 prior to the time that he got the notice from the folks that

10 knew he existed, GE, we he didn't get until June?

11 THE COURT: Well, if I understand the class

12 counsel's position correctly, it is that, if your client had

13 a problem with the refrigerator during that time period, and

14 would have called GE, or one of the service peopl e for GE,

15 he would have been notified; but, since he hasn't had a

16 problem, presumably, that hasn't happened.

17 MR. JEFFREY WEINSTEIN: I don't know how to answe r

18 that, because we -- I don't think there's a depos ition in

19 this case where anybody has been asked of the ris k

20 department of GE, or the engineers of GE, how oft en this

21 defect occurs. There is no deposition in this ca se that we

22 could tell if anybody knows the defect rate, or a nything

23 like that; but, in light of what was negotiated o n behalf of

24 my client -- and, by the way, I think my client's objection

25 applies to a lot more people than just Brent Davi s. It


1 applies to all the people that received the suppl emental

2 notice. They are not receiving the benefit that was

3 bargained for here.

4 I hear what he's saying. My client could still

5 make a claim today. No question about that. But the truth

6 of the matter is he doesn't get the one-year exte nded

7 warranty from the date the Court approves this se ttlement.

8 He only gets a couple of months if there's not an appeal.

9 If there is an appeal, he gets nothing.

10 THE COURT: Well, in that sense, he's like

11 everyone else, isn't he?

12 MR. JEFFREY WEINSTEIN: Correct. And no need to

13 have the class action. It's over. The only thin g left is,

14 really, the attorneys fees for the plaintiffs' cl ass

15 counsel. In all truthfulness.


17 MR. JEFFREY WEINSTEIN: May I sit down?


19 MR. WALLER: Your Honor, may I be heard, please?


21 MR. WALLER: A couple of things I'd like to,

22 hopefully, clear up, Your Honor. If I could go b ack, for

23 just a moment, to put this in the real context, w hat we're

24 dealing with here are refrigerators that were man ufactured

25 in 2001 and 2002. Just those two years that we'r e dealing


1 with. The youngest refrigerator here would have been

2 manufactured in December of '02. So what GE -- i n

3 negotiating the settlement, GE looked at these un its that

4 are all four, five, six years old, and decided, w ell, we'll

5 give -- and, ordinarily, when a refrigerator is s old, it may

6 have a one-year warranty for defects in design or parts. So

7 the ordinary warranties with respect to these uni ts would

8 have expired -- for the youngest unit, would have expired in

9 December of '03. The end of December of '03.

10 So now we're here in '06 and '07, and what GE

11 negotiated and agreed to do was, for everybody, o n these

12 units that are from '01 and '02, for everybody, w e will give

13 an extended warranty until January of '07. For a ll of those

14 units. And, whether or not the person files a cl aim in

15 January of '06, gets notice in January of '06, ge ts notice

16 in March of '06, gets notice in September of '06, most of

17 the people here got notice by the end of June of '06,

18 including the supplemental notice. The great bul k of the

19 supplemental notice went out in June of '06. So whether or

20 not the claims -- we're still dealing with units from '01

21 and '02, and with now getting the benefit under t he

22 settlement is a warranty -- additional warranty p rotection,

23 until January of '07, for all of those units.

24 If you try to carve out the people -- let's say

25 just the supplemental notice people -- and say, w ell, their


1 claim deadline is not until September 4, and, the refore,

2 they're entitled to a year from September 4 of '0 6 to

3 September 4 of '07, then they're going to have a benefit

4 that's greater than the benefit of the great bulk of the

5 class members.

6 The great bulk of the class members have this

7 benefit for their units, which are the same age, whether the

8 class member got notice in the first group or the second

9 group, we're talking about refrigerators of the s ame age,

10 and those refrigerators GE negotiated to have an extended

11 warranty until January of '07. That's the econom ic --

12 fundamental economic term that was negotiated her e.

13 Now, Mr. Weinstein would like to rewrite the

14 settlement agreement. He would like to rewrite w hat GE

15 negotiated. And Mr. Weinstein correctly referred to, and

16 Mr. Mason correctly referred to the fact that the re are

17 internal economic reasons that went into GE's thi nking, in

18 what it was willing to agree to, and what it nego tiated; and

19 that's what it negotiated.

20 Now, with respect to, Your Honor, the idea of,

21 well, GE knew the members of the class, why shoul d anybody

22 have to file a claim --

23 THE COURT: Let me come back to that in a minute.

24 I want to go back -- I've got a question on what you've just

25 argued.


1 The reason for the delay, or the shortened time

2 period, though, isn't the fault of the class memb ers. As I

3 understand it, it was a problem of notice that GE and class

4 counsel had. And I'm not assigning fault. Whate ver the

5 reason was, because you didn't give notice until June, that

6 shortened some class members to a three-month per iod of

7 notice. I mean, they may have the same one-year period, but

8 they didn't know they had it until at least June of '06, and

9 it expires in September of '06.

10 MR. WALLER: But the point is, they've got the

11 same refrigerator. They've got the same refriger ator that's

12 warrantied, ordinarily -- without the settlement, the

13 warranty would have expired back in September of '03; and

14 whether or not they knew about this, if they had a

15 problem -- if they had a problem, they would have -- this

16 has been argued, I don't want to repeat, Your Hon or, but if

17 they had a problem, they would call up either GE, or they

18 would call up somebody else.

19 The other point to make, Your Honor, is the focus

20 has been on this supplemental notice. But you al so had

21 112 million publications of advertisements publis hing this

22 notice back in January and February. Now, we don 't know,

23 Mr. -- Mr. Davis is saying I didn't get notice un til I got

24 my direct notice as a supplemental notice person. We don't

25 know how many of those people got notice through publication


1 back in January, anyway. And maybe Mr. Davis did . We don't

2 know. He is not here. He is not here to testify . We've

3 got argument from his lawyer, but we don't know t hose facts.

4 And he says his objection may apply to lots of ot her people.

5 We don't know how many of those other people -- e ven if you

6 look at the notice issue, we don't know how many of those

7 other people got notice of this through the 112 m illion

8 publications back in January and February.

9 THE COURT: Didn't Judge Covington basically cros s

10 that bridge, already, when she said you had to gi ve more

11 detail?

12 MR. WALLER: She said we had to give more direct

13 notice. She also said we had gone above and beyo nd the call

14 of duty in the notice that we gave. So she appre ciated the

15 publication notice that was given. But if you ar e talking

16 any individual person, or particular class member , you don't

17 know.

18 But the point, is Your Honor, whether or not the

19 person became aware, either they had a problem, o r they

20 didn't have a problem; and there's no reason to s uspect

21 that, because somebody got notice, let's say, in June or

22 July, there's no reason to think that their refri gerator is

23 going to have a -- is more likely to have a probl em after

24 January of '07 than somebody who got notice back in June, or

25 back in January or February, of '06.


1 The likelihood of there being a problem if they

2 had not had one before, the likelihood of there b eing a

3 problem after January of '07 is the same. And wh at GE will

4 do, whether or not they have to, they'll look at these

5 things, case by case, even if the problem occurre d after

6 January of '07; but as far as what they are requi red to do,

7 there's nothing in the law that requires a rewrit ing of this

8 agreement, Your Honor, to be fair to the class me mbers.

9 They all had the same refrigerators of the same a ge.

10 THE COURT: One of the things that -- addressing

11 the immediacy issue that Mr. Weinstein talked abo ut in the

12 beginning, one of the things that GE did was basi cally make

13 the year expire earlier, so instead of a year fro m today,

14 when you've got refrigerators that are six years old instead

15 of five years old, presumably more likely to have problems

16 in your six than in year five; so, on the one han d, it fixed

17 some immediate problems, but it presumably has so me

18 economics advantages to GE.

19 MR. WALLER: Well, your Honor, in negotiating

20 this, GE thought about, well, we should have some cutoffs

21 earlier than others, but GE decided we'll give ev erybody the

22 benefit until January of '07 and that's what they did,

23 regardless of the age. But that's -- from an adm inistrative

24 standpoint, that's what GE decided, to give every body the

25 benefit until January of '07.


1 THE COURT: I still have a little problem with

2 giving someone a benefit but not telling him he's getting a

3 benefit. I mean, I may have a benefit -- I mean, if I don't

4 know I have car insurance, and I get in an accide nt, it may

5 make a difference whether I junk my car or have i t fixed;

6 and if no one tells me, oh, by the way, you're in sured,

7 maybe I've had that benefit all the time, and I j ust don't

8 know it.

9 MR. WALLER: Well, you've got to see whether or

10 not you have a problem, too. If you have an acci dent with

11 your car, you're going to have a problem, and you find out.

12 If these people had a problem with their refriger ator,

13 they're going to find out, one way or the other; and if they

14 don't know, if they don't know that they had any kind of

15 coverage here, or warranty here, and they went ou t and paid

16 somebody, they'll get reimbursed. That's part of the

17 program.

18 THE COURT: How do they get reimbursed?

19 MR. WALLER: They file a claim. They've got time

20 to file a claim. They file a claim by September 4th .

21 That's all they have to do. And they'll get reim bursed.

22 THE COURT: So, basically, for the supplemental

23 claim people, your position is the 90 days, rough ly, notice

24 is sufficient.

25 MR. WALLER: They had the same 90 days as the


1 original class to file a claim. The original cla ss, notices

2 began to go out in January of '06, and the origin al people

3 had 90 days to file a claim. With the supplement al notice

4 people, the notice went out in June, and they had 90 days,

5 to September 4 th , to file their claim for reimbursement.

6 THE COURT: So, in that sense, the timing is the

7 same. They're in the same boat.

8 MR. WALLER: Yes, sir.

9 THE COURT: From your perspective.


11 THE COURT: All right. I had cut you off with

12 regard to the requirements for filing a claim, I think is

13 where you're going.

14 MR. WALLER: And again, it's part of the same

15 argument, Your Honor, that, again, GE negotiated, for

16 internal reasons, it needed to know -- and Mr. Ma son touched

17 on this -- it needed to know how many of these pe ople were

18 going to be file for these warranty claims, and h ow many of

19 these warranty claims were going to be out there. And

20 beyond that, Your Honor, it's not unusual -- and Your Honor

21 knows this -- it's not unusual, in a class action , to

22 require the filing of a claim to get a benefit. There's

23 nothing unusual about that.

24 Now Mr. Weinstein, maybe, in his case, for

25 whatever reason, they were able to give a benefit to


1 everybody. That's fine. But here . . . two thin gs. One,

2 GE does not know that -- the argument has been ma de that GE

3 knows the identity of everybody that has one of t hese units

4 and that's just not correct. GE does not know th e name. We

5 don't know, for example, whether or not somebody bought the

6 unit and may no longer have it. We also don't kn ow whether

7 people are having problems or not. We assume tha t, a lot of

8 units out there, nobody has a -- they're not havi ng

9 problems, based on the fact of the number of clai ms that

10 have been filed. But for that, and those reasons , but

11 primarily because of the reason that GE, internal ly, has a

12 right to know, and negotiated, basically, and agr eed that,

13 based on the fact that we had a right to know who 's going to

14 be filing claims for warranties, these additional warranty

15 protections, how many they're going to be -- you know -- for

16 internal economic reasons, at GE. And that's fun damentally

17 what we agreed to. And again, Mr. Weinstein has an

18 argument, but . . . nothing in the law requires t he

19 agreement to be rewritten in some other way than was

20 negotiated.

21 And there's nothing unfair about it. People got

22 notice. They have the right to file, just like h is client

23 has the right to file, a claim. He's got time to file a

24 claim. If he chooses not to file a claim, that's up to him.

25 All he has to do is file a claim to get that bene fit.


1 Your Honor, there's just one other point -- I hat e

2 to even bring it up, but I'd like to just mention , just to

3 set the record straight, Mr. Weinstein made a fli p remark --

4 I don't think he was serious, but I want to make the record

5 clear -- he made a remark, something to the effec t that GE

6 decided this should only go to people that make m ore than

7 $50,000. That's absolutely untrue, not supported by

8 anything.

9 What I think he's alluding to is that GE, in

10 deciding how to publish the ads, went to a third- party

11 professional company -- marketing company, in New York, to

12 see how do we reach the people out there who are the likely

13 owners of these refrigerators? What's the best w ay to reach

14 them? And the information that came back was, we ll,

15 generally, the people who buy these units, genera lly, the

16 majority of them are in an certain economic price range, and

17 so we want to make sure that we reach -- particul arly reach

18 that economic price range. And so they decided t o publish

19 in Parade twice, in USA Weekend once, Better Home s and

20 Gardens, People, and Readers Digest.

21 This third-party company advised GE that that's

22 the publications that we ought to have to reach t he majority

23 of people who will -- are purchasers and owners o f these

24 units. But nobody ever said we're only going to publish or

25 notify people in a particular economic price rang e, and I


1 want the record to be clear on that.

2 Thank you.


4 Mr. Weinstein, did you agree with the hypothetica l

5 answers that Mr. Weinstein was giving as he spoke up here a

6 few minutes ago?

7 MR. SCOTT WEINSTEIN: Not all of them. GE is

8 contractually obligated to this case, to give us immediate

9 implementation, since January. That's what the c ontract --

10 that's what the settlement agreement says that th ey would

11 do. That's what we negotiated. That's what they have been

12 doing. Their obligations, I believe, would end i f Your

13 Honor would deny our pending motion today. I thi nk they

14 wouldn't have to do anything anymore, because it cuts off

15 the agreement.

16 The agreement was that, up until the Court enters

17 an order, if the Court does enter an order, they will

18 provide this immediate benefit. They have had no

19 obligation . . . under two scenarios; one, if the Court

20 denies the motion; or two, if, as has been mentio ned, or

21 threatened, by Mr. Weinstein, who said that he ca res about

22 members of the class, if he cuts off those rights -- the

23 rights only flow from the settlement agreement. There are

24 no rights. Statutes of limitations have run out, in most

25 states, with refrigerators this old, and nobody h as a right


1 to a restored warranty once it's expired. They h ave the

2 rights only under this agreement, not absent this agreement.

3 Assuming the other hypothetical, Your Honor can

4 remind me about what you're curious about, about my

5 hypothetical answer, I'll be happy to answer.

6 THE COURT: I saw you nodding your head in some

7 places and shaking your head in some places.

8 MR. SCOTT WEINSTEIN: Exactly. I will disagree

9 that there is no obligation to provide these bene fits. They

10 have a contractual obligation to provide those be nefits.

11 The settlement says that it will commence, that's why I kept

12 reading from it, commencing January 13 th , of 2006. That's

13 the contract they have with us in this agreement. And --

14 I'm sorry?

15 MR. JEFFREY WEINSTEIN: If I may approach, Your

16 Honor?


18 MR. JEFFREY WEINSTEIN: May it please the Court,

19 my hypothetical -- let's assume my client was not identified

20 by GE, and he makes a warranty claim for covered moisture

21 problems on November 15, 2006, and the settlement is final.

22 I ask if you could assume that, and I know that y ou can.

23 Under the settlement, that would be within the ex tended

24 warranty period; correct?

25 MR. SCOTT WEINSTEIN: Correct.

MR. JEFFREY WEINSTEIN QUESTIONS MR. SCOTT WEINSTEIN 81

1 MR. JEFFREY WEINSTEIN: So this would be the very

2 alleged benefit that the settlement was intended to provide

3 to him.

4 MR. SCOTT WEINSTEIN: That's one of many benefits

5 that he has under the agreement. If he had a pro blem, in

6 November, with the refrigerator, he would be able to make a

7 warranty claim.

8 MR. JEFFREY WEINSTEIN: The answer is that it was

9 correct.

10 MR. SCOTT WEINSTEIN: And me may get a

11 reimbursement if he ever had a problem before, an d he would

12 eventually get a new refrigerator if it couldn't be fixed.

13 MR. JEFFREY WEINSTEIN: And, when he made the

14 claim, GE could ask the exact same questions cont ained in

15 the claim form to ensure that he's a member of th e class.

16 MR. SCOTT WEINSTEIN: When he makes the claim? I

17 think they would have already done that. They wo uld have

18 sent out a warranty letter. They could have sent out a

19 letter, and he's going to have it.

20 MR. JEFFREY WEINSTEIN: And they would determine

21 that he's a member of the class.

22 MR. SCOTT WEINSTEIN: They would do that three

23 months ago, when he got the claim form and notice , he could

24 have sent it with proof, and it already would hav e been

25 done.


1 MR. JEFFREY WEINSTEIN: It's appears painful, but

2 I think the answer is correct.

3 MR. SCOTT WEINSTEIN: I don't understand your

4 question.

5 MR. JEFFREY WEINSTEIN: Oh, sure.

6 MR. SCOTT WEINSTEIN: If he sends in the claim

7 form timely, he doesn't have to do anything more. If he has

8 a problem with the refrigerator, just call them u p for

9 service.

10 MR. JEFFREY WEINSTEIN: GE would determine that h e

11 was a member of the class, correct?

12 MR. SCOTT WEINSTEIN: When?

13 MR. JEFFREY WEINSTEIN: At the time that he makes

14 the claim.

15 MR. SCOTT WEINSTEIN: What claim?

16 MR. JEFFREY WEINSTEIN: A moisture related

17 refrigerator claim that's the basis of our lawsui t,

18 gentleman.

19 MR. SCOTT WEINSTEIN: Please don't be sarcastic

20 with me, counsel. I don't understand your questi on. It's

21 not artful. Which claim?

22 THE COURT: Gentlemen.

23 MR. SCOTT WEINSTEIN: There are two types of

24 claims, Your Honor, you send in a claim form to b ecome a

25 member, and to ask for this additional warranty p rotection.


1 Or, if you're eligible for reimbursement, there i s a section

2 for reimbursement. Or for the refrigerator excha nge, if

3 you're already entitled. Then, if you have a pro blem with

4 your refrigerator, you can make a claim under the additional

5 warranty protection that already would have been issued had

6 you done the first claim. So I don't understand the

7 question.

8 MR. JEFFREY WEINSTEIN: Let me just, if I could

9 just back up for just a minute, and just maybe he lp it out.

10 Remember that this person's making the claim on N ovember the

11 15 th , 2006.

12 MR. SCOTT WEINSTEIN: Which claim?

13 MR. JEFFREY WEINSTEIN: The moisture related

14 refrigerator claim.

15 MR. SCOTT WEINSTEIN: Has he already sent it his

16 claim form?

17 MR. JEFFREY WEINSTEIN: No.

18 MR. SCOTT WEINSTEIN: Then it's cut off.

19 MR. JEFFREY WEINSTEIN: He wasn't identified by

20 GE.

21 MR. SCOTT WEINSTEIN: It's cut off.

22 MR. JEFFREY WEINSTEIN: All right. Under the

23 settlement, he wouldn't be entitled to any relief simply

24 because he did not identify himself to GE earlier , before he

25 had the moisture problem.


1 MR. SCOTT WEINSTEIN: No. He refused to file a

2 claim, even though he has a lawyer. He got it in May, and

3 he decided to sit on his rights because he has no right

4 absent this settlement agreement. That's my answ er.

5 MR. JEFFREY WEINSTEIN: Your Honor, it was a

6 hypothetical, didn't have to do with Mr. Davis, b ut I

7 appreciate the responses. That was the hypotheti cal you

8 were asking about. I don't believe Mr. Weinstein was

9 responding to it earlier.

10 THE COURT: All right. Do you have your answers

11 that you need?

12 MR. JEFFREY WEINSTEIN: I believe so, Your Honor.

13 Thank you very much.

14 THE COURT: I think you do, too.

15 All right. Anything else? From anyone?

16 MR. WALLER: Your Honor, the only other thing --

17 and I'm not trying to beat a dead horse, but you' re

18 concerned about -- or expressed a concern about k nowledge.

19 And, to the extent that a person -- and maybe I d idn't make

20 it clear earlier. To the extent a person receive d notice in

21 January of '06, another class member didn't recei ve notice

22 until March or April of '06, those people would h ave had

23 different lengths of time between then and Januar y of '07,

24 but they're both treated the same. They both hav e that

25 year. And so there's no difference between --


1 distinguishing between those two than distinguish ing between

2 a later supplemental notice person. They still g ot notice,

3 at different time periods . . . .

4 THE COURT: Maybe I misunderstood something I

5 think you said. I believe you had talked about, if someone

6 received notice in January of '06, he had roughly 90 days.

7 MR. WALLER: That's a different question. I'm

8 talking about length of time they would have in w hich --

9 that they would have knowledge in their head of t his

10 warranty period. Okay? And Your Honor seemed to be

11 concerned that some people would only have three months

12 knowledge, or three months opportunity, to have t his

13 extended warranty period, whereas other people wo uld have

14 had a full year for the extended warranty period.

15 And all I'm saying, as far as the -- you know, yo u

16 could make the same argument with respect to two people, one

17 who first got notice in April of '06, and another who got

18 notice in January of '06. You could make the sam e argument,

19 that there is a difference in length of time that they had

20 knowledge, between that time and January of '07, to exercise

21 their rights under the warranty. But I don't kno w that it

22 makes any difference.

23 The point is, they all have a year. They all

24 have -- well, they all have until January of '07. Maybe

25 I've just obfuscated further, and I apologize if I did.


1 Thank you.

2 THE COURT: Your bottom line has to be -- and

3 correct me, because I don't mean to put words in your mouth.

4 Although that's what I'm going to do.

5 MR. WALLER: I'll accept them.

6 THE COURT: It seems like your bottom line is 90

7 days is reasonable for someone to get notice and make a

8 claim.

9 MR. WALLER: That's correct.

10 THE COURT: Because there are some people who onl y

11 have 90 days. Maybe others have more, but at lea st for the

12 supplemental people --

13 MR. WALLER: They have the same 90 that the peopl e

14 in the first group would have had.

15 THE COURT: Now that's the part where you lose me .

16 MR. WALLER: Well, it depends on when the people,

17 I guess, received their direct mail notice. And the bulk of

18 the people in the supplemental group, the bulk of the

19 people, based on the affidavits, received their s upplemental

20 notice by June 29 th of '06. So, starting June 6 th -- I

21 think June 6 th until June 29 th , I think, was the mailing

22 period, and when like 240-some thousand notices w ere sent

23 out. And so the last one would have gone out Jun e 29. So,

24 between -- so the latest one would have had betwe en June 29

25 and September 4 in which to file their claim. In the first


1 time around, the bulk of the notices went out in January,

2 and up until maybe mid February of '06.

3 Now, there were some notices that may have gone

4 out after that, but the bulk went out in January -- late

5 January, beginning of February. And they had unt il

6 April 14 th . So they, again -- you know, February, March,

7 April. They, again, had roughly 90 days in which to file --

8 if anything, this later group, perhaps, had a lon ger time

9 period, because we made sure that they had -- bec ause the

10 mailings got out quicker, is what happened in the second

11 time around. And so more of them would have had a full 90

12 days than actually occurred the first time around .

13 But, in any event, the plan was for people to

14 have -- you know -- the beginning time -- well, l et me start

15 over.

16 The Court, in both cases, entered an order

17 requiring notice to begin on a particular date. There are

18 so many notices that went out. You just can't du mp them all

19 at once. It takes time to send them out. But, i n both

20 cases, the Court said they should start in the Ja nuary time

21 period. It was like January 6 th , I think -- I'm sorry,

22 January 13 th , I think, is when they should start. This

23 time, they should start June the 6 th . And the bulk of

24 them went out -- it began when it was supposed to , and the

25 bulk of them went out in the two or three weeks f ollowing


1 those dates.

2 And then the claim cutoff for the first group was

3 April 14 th ; the second group, it was September 4 th . So

4 roughly equivalent time periods for the bulk of t he

5 recipients of the direct mail notice to file thei r claims.

6 The Court did not require additional publication notice,

7 because she was very pleased with the way the pub lication

8 notice had been done initially.

9 THE COURT: So, essentially, the Court will have

10 to find that roughly 70 days -- I mean June 29 th of '06 to

11 September 4 th , '06 -- is a reasonable period of time to

12 have notice before the claim period expires.

13 MR. WALLER: That's correct. It's 70 to 90,

14 depending on whether you're the beginning of the mailing

15 period or the end.

16 THE COURT: Right. And you're saying that's

17 roughly comparable with the first group, from Jan uary

18 through with the cutoff of April 14 th .



21 MR. MASON: Your Honor, if I may, from my

22 experiences, address the issue of class notice an d the

23 90-day time periods.

24 I have had a career's worth of experience in this

25 area. And, first of all, I'll point out that we' re dealing


1 with a notice program unlike Western Union, where you're

2 directly notifying the class members. There was a direct

3 financial relationship between Western Union and the class

4 members. In this kind of settlement, which I've done many

5 of, we're talking about indirect relationships. So it's

6 very -- it's a greater challenge to notice a pers on when

7 your chain of distribution is from a remote manuf acturer to

8 the consumer. So that's point number one.

9 90 days has been presumptively been found to be

10 sufficient, for a notice program of this nature, time and

11 time again. And I want to point out, Your Honor, it's not

12 because the consumer needs 90 days. Arguably, a consumer

13 needs an afternoon to read this document, fill in the claim

14 form, mail it.

15 The 90-day requirement is usually what courts

16 approve because that's the time period that it ta kes to

17 implement a notice program of this complexity. A t a

18 minimum. Sometimes it takes more. But at the ti me -- as

19 Mr. Waller was pointing out, by the time you get your ads

20 placed, you get your databases ready, you get you r notice

21 providers all geared up, and it starts to roll, a nd somebody

22 may see an ad the first Sunday in Parade, somebod y else

23 might see it three months later, in People Magazi ne, or the

24 Readers Digest they saw in the doctor's office. And that's

25 all okay.


1 The point is, is the overall program extensive

2 enough that we've got the scope and reach to reac h the bulk

3 of the target audience? We're not going to reach everybody.

4 Particularly in an indirect notice program like t his. But

5 is it sufficiently fair, and is it the best notic e

6 practicable? And that's the standard and the rul e the

7 Supreme Court talks about. That's what we are ta lking about

8 here.

9 We have done that, within the 90-day period, twic e

10 now. We did it for the first group, and then we did it,

11 again, for the second group, giving an additional benefit,

12 perhaps, to the first group; but, either way you look at it,

13 we have twice done notice that, I think, meets al l the

14 standards, and has gotten the best practical noti ce out to

15 the class, and it's given people adequate time to get the

16 claims forms back.

17 And the real purpose of notice, Your Honor, is,

18 ultimately, not only to get the claim forms in, b ut to give

19 Your Honor the opportunity to hear from the class about what

20 they think about the case, what they think about the

21 settlement. So there's sufficient time that, if people

22 don't want to be part of this, they can get out o f it; and

23 if they want to bring objections to the Court, th ey can do

24 so.

25 I think that process has worked admirably here.


1 We have had heard statistics that there have been several

2 hundred opt outs. We have heard from the objecto rs here,

3 today, and we had the objectors last time; and I think the

4 notice requirements have been amply met in this c ase, Your

5 Honor.


7 Mr. Weinstein, at the beginning, you had some

8 questions. Have all those been answered?

9 MR. JEFFREY WEINSTEIN: Yes, Your Honor. Thank

10 you very much for allowing me that opportunity.

11 THE COURT: All right. You gentlemen are kind of

12 entertaining, so I'd let you do some more, if you wanted.

13 MR. JEFFREY WEINSTEIN: As long as you don't lock

14 us in that room back there, that would be great.

15 THE COURT: No. As long as you're all set.

16 MR. SCOTT WEINSTEIN: We already talked about our

17 grandfathers.


19 MR. SCOTT WEINSTEIN: Your Honor, some other

20 points.

21 The consumer had prior repairs through GE. Even

22 though the claim form requires that they provide

23 documentation. They contact me, and they say wha t do I do?

24 I don't have documentation. I contact Mr. Bogard . They

25 search their database, and they can see that the repairs


1 have happened, they reimburse or replace the refr igerator.

2 They do that with me or without me.

3 We have been actively, hands-on, involved in this ,

4 and the implementation of this, every day. I've received

5 very few contacts since the supplemental. And I did

6 something so I that I know if I'm being contacted by a

7 supplemental notice recipient. We changed my e-m ail address

8 on the notice, so that I know where it's coming f rom. Only

9 people that got that supplemental notice would se nd it to

10 that particular e-mail address. I have gotten a few, much

11 less than I did originally. Because, by the way, we don't

12 know how many new, discreet people there are in t he

13 supplemental notice. They may have already gotte n a notice

14 in some other way. They may have gotten a duplic ate notice,

15 for all we know.

16 And some of them asked me questions, well I didn' t

17 know about the additional warranty protection. W hat do I

18 do? Apply for it. Have you had a problem? No. Apply for

19 it. I already paid for service. Get reimbursed. E-mailed

20 me back, well, thank you. This is fantastic. Th ey say I'm

21 getting reimbursed. I didn't file the complement ary and

22 thank you e-mails that I could have, but the vast majority

23 of people are just so relieved that we're finding help for

24 them.

25 This is about the most people that we can help,


1 versus -- and let's go back to hypothetical quest ions. I'd

2 like somebody to ask, if Mr. Davis is here, how i s your

3 refrigerator? Do you have a problem with it? Di d you have

4 a problem between the January and the end of May, when you

5 received your claim form and your notice, that yo u wish that

6 you knew that you had this additional warranty pr otection?

7 I think the answer -- I'm going to guess, now -- is, no, I

8 didn't. I'm just worried about everybody else in the class.

9 I didn't have a problem.

10 He's in no different position -- he's in a better

11 position than most of people. And you know what,

12 anecdotally? This refrigerator is five years old . He's

13 probably not going to have a moisture related pro blem,

14 because these problems manifest early in life.

15 The people that I have spoken with have had the

16 problem almost from the beginning, and are just f rustrated.

17 By the time they're five years old, they're going to have

18 that problem. That's anecdotal, that's my testim ony, but

19 it's something that I see, myself.

20 Your Honor, is it necessary for to us provide any

21 legal argument about attorney's fees? It's all b riefed.

22 THE COURT: No. No one has raised that as an

23 issue. I can read what's been submitted.

24 All right. Anything else from anyone?

25 MR. WALLER: The only other thing, Miss Cannivet


1 made some comments about the monitoring, and I do n't know

2 whether Your Honor wants to hear a response to th at.

3 THE COURT: That's an issue, so . . . .

4 MR. WALLER: Only thing I would point out, Your

5 Honor -- and Mr. Weinstein is alluded to it, but, first of

6 all, anybody who has a problem in not getting the relief

7 they're supposed to get under the settlement agre ement could

8 opt out, first of all. There have been very few opt outs.

9 Second of all, probably most important, is the wa y

10 that GE and Mr. Weinstein have been handling thes e, to our

11 knowledge -- I can just represent to the Court th at, to my

12 knowledge -- and I sometimes relay the messages f rom

13 Mr. Weinstein to Mr. Bogard, anybody who has call ed in,

14 anybody who has had a problem, had a concern, had a

15 question, has been taken of. Miss Cannivet may k now of some

16 people who have problems that haven't gone to Mr. Weinstein,

17 haven't gone to GE, who may just complain to Miss Cannivet.

18 I don't know. But if they would go through the p rocedure of

19 notifying him, or notifying GE, the problems are getting

20 resolved. Whether or not they are entitled to

21 reimbursement, or replacement of a refrigerator, those

22 things are getting resolved.

23 At the end of the day, Your Honor, there is, in

24 the settlement agreement -- and it's Paragraph 14 of the

25 settlement agreement -- it basically says, from t his point


1 forward, or whenever the Court, the parties have agreed the

2 Court can appoint a special magistrate, and have agreed that

3 special magistrate will resolve any disputes.

4 Let's assume somebody called GE, and they said,

5 well, look I've had three repairs, and GE said, w ell, no,

6 you haven't, or I'm entitled to a refrigerator re placement,

7 and GE says now, you're not, under the agreement, if there's

8 a dispute, there's a mechanism, under the agreeme nt, to

9 resolve that dispute.

10 So to say that there is inadequate monitoring, or

11 quality monitoring, I just haven't seen it, Your Honor. I

12 just don't think it exists, except out there wher e people

13 are not availing themselves of their rights to co ntact

14 Mr. Weinstein, or contact GE, and have their prob lems

15 resolved.

16 THE COURT: But the bottom line is, to the extent

17 that class members are dissatisfied with the reso lution that

18 GE provides, they have a right to . . . access to court?

19 MR. WALLER: Exactly.

20 THE COURT: And have a special master --


22 THE COURT: -- review the matter?



25 CATHERINE CANNIVET: Your Honor, may I?


1 THE COURT: You may. If you come forward.

2 CATHERINE CANNIVET: Not one consumer that I've

3 communicated with even is aware of what that mean s, or that

4 they have that right to -- to a special master, o r to go to

5 a court, or what they do once they've been denied . There

6 are so many people that are submitting claims, th eir date to

7 opt out has already expired, they are waiting wee ks for a

8 reply, and then they get denied their benefits. By then,

9 it's too late to opt out. They're stuck. They'r e left

10 holding the bag.

11 There are people, currently, most recent, over th e

12 last two weeks, when they call the regular GE pho ne number

13 for repair service, they are a member of the clas s, but they

14 don't know it, they did not receive notice, maybe they never

15 had a repair, and they are not in a data base -- some of

16 these people have had repairs through authorized GE

17 companies, like Sears, and didn't receive notice. These are

18 people that are calling the regular GE number for a repair

19 and they are not told, at that time, that their m odel is

20 included in a settlement agreement or a class act ion. They

21 are being told it will be 49.95 for a service cal l, and

22 parts and labor. And then they do some research, and they

23 happen to discover us, and they are furious, beca use GE is

24 not telling them.

25 There are -- the people that are trying to get

ARGUMENT BY MS. CANNIVET 97

1 these benefits, if there's anything -- could I pl ease try to

2 stress to you, today, people are being denied ben efits by

3 the hoards. People that have had six, eight repa irs. Most

4 of them may be in GE's records. Maybe they were all done

5 while under warranty. They call. They try to su bmit a

6 claim to get a replacement refrigerator. They ha ve no

7 record, because GE never left any record with the se people.

8 Even people that requested receipts, and requeste d records,

9 were never left any paperwork to prove they had t hese

10 repairs.

11 Now you have someone that's endured numerous

12 repairs, they are having problems again, and they want their

13 refrigerator replacement, and GE is denying it. People that

14 have proof of their repairs more than three moist ure related

15 repairs, are being denied refrigerator replacemen ts.

16 But it is most disturbing to discover all of thes e

17 people that constantly contact us, and they are a bsolutely

18 furious because they -- they call GE for repair d uring the

19 current time and they are not being told that the y are

20 included in a class action. This is wrong.

21 This is -- when I talk about a monitoring

22 mechanism, I don't mean reports submitted by GE. It has to

23 be someone else. GE has demonstrated, from the v ery

24 beginning, throughout this entire process, consta nt

25 deception to the consumers and the customers, and making

ARGUMENT BY MS. CANNIVET 98

1 promises in the press, and then not providing the m. They

2 blatantly make promises, and then deny the very p romises

3 they promise in the press.

4 It has created mayhem for people. Not to mention

5 the extended weeks that people are forced to wait for

6 repair, or for parts to come in. It's a very bad situation

7 for the members. And that's all I'd like to say about that.


9 MR. SCOTT WEINSTEIN: May I, Your Honor?

10 THE COURT: Yes.

11 MR. SCOTT WEINSTEIN: They's no mayhem.

12 CATHERINE CANNIVET: Yes, there is.

13 MR. SCOTT WEINSTEIN: If she would forward, and

14 she has forwarded all these people, I will fix it .

15 THE COURT: Wait a second.

16 Miss Cannivet, you need to address your comments

17 to me, and not Mr. Weinstein. After the Court is over, you

18 can have at it all you want. With conversation, I mean.

19 MR. SCOTT WEINSTEIN: I will fix it, and I have

20 been fixing it. Sometimes things don't go well. Consumers

21 are frustrated. If they contact me, it's fixed w ithin 24

22 hours.

23 I get feedback from these consumers. On very few

24 occasions, Miss Cannivet has forwarded informatio n. It

25 doesn't help for her to have a complaint hot line , and just

99

1 let people get angrier and angrier, and spin arou nd, and

2 make smoke. Contact. That's my job in this case , and

3 that's what I'll continue to do until all these h ave been

4 resolved. It doesn't help to bring these things to life.

5 Bring them to me, and I will fix them. Every per son I sent

6 to Mr. Bogard, they have resolved that issue.


8 Anybody else? Speak now, or hold your peace.

9 All right. I'll get the order out as soon as I

10 can. Thank you all.

11 -- -- -- -- -- -- -- --

12 (Thereupon, at 3:33 o'clock p.m., the above-entit led

13 matter was concluded.)

14 -- -- -- -- -- -- -- --

15 CERTIFICATE

16 I CERTIFY THAT THE FOREGOING TRANSCRIPT IS A TRUE AND

17 ACCURATE TRANSCRIPT FROM THE ORIGINAL STENOGRAPHIC RECORD IN

18 THE ABOVE-ENTITLED MATTER.

19

20 Dated this 25th day of September, 2006.

21

22 /s/ Jeffrey G. Thomas

23 JEFFREY G. THOMAS, RPR

24

25

Documents

TURNER v GE Refrigerator Class Action