The Kindle War Begins

The following is the letter I’m about to send to Amazon.com, because the California statute establishing a punitive damages claim for false advertisement requires a 30-day demand first. (Previously. About 3/4 of the way down this page, you can see the drop test video to which I refer.) Complete with the official “this is a snotty letter from a lawyer” closing, “very truly yours.”

Edit: I revised the letter that originally appeared here before sending it. I’ve replaced the original with the revised version (the one that actually won).

Paul Gowder
[Address omitted]

August 12, 2009

Amazon.com Inc.
Legal Department
1200 12th Avenue South
Suite 1200
Seattle, WA 98144-2734

Dear Sir or Madam:

On June 21, 2009, I purchased an Kindle 2 e-book reader from the Amazon.com website. I purchased this device based, in substantial part, on the expectation that it would be reasonably durable. In particular, I expected that it would be approximately as durable as is ordinary in the consumer electronics market.

Amazon.com advertises the Kindle 2 on the basis of its durability. Notably, Amazon.com displays a “drop test” video on the web page for this product. That video displays the device being dropped twice from thirty inches onto what appears to be tile. That video displays a fall with sufficient force that the device visibly bounces, and deliberately creates the impression that the device will function after impacts similar to that sequence of drops.

Despite those representations, the Kindle 2 is far less durable. On July 26, 2009, I dropped a messenger bag containing the device onto the sidewalk, from approximately two feet above the ground. It was dropped only once, and the messenger bag absorbed enough of the shock that nothing else in the bag, including a Macbook laptop, suffered any damage whatsoever. (Unlike the drop displayed in Amazon.com’s video, for example, nothing actually bounced.) Moreover, there was no visible damage on the exterior of the Kindle 2. Nonetheless, the Kindle 2 became completely unusable, with over 50% of its screen no longer able to display any text.

I called Amazon.com support and was told that, because of the accidental drop, you would not be willing to supply a replacement device under warranty. You did, however, offer to sell a new device at a discount, for $200.00. I took advantage of that offer under protest, and explicitly reserved my rights to bring a claim against you based on the unreasonable fragility of the device and the misrepresentations in your advertising. It is that claim that forms the subject of this letter.

I am prepared to offer an immediate settlement of my claims against Amazon.com for a payment of $400.00. That sum represents the $200.00 replacement fee I paid plus $200.00 to compensate me for the diminution of utility and value of the device as well as of the e-books I have purchased for that device, in light of the fact that the replacement device, too, can be expected to be far more fragile than advertised and prone to destruction under the slightest stress. This offer expires thirty days from your receipt of this letter. If you do not accept this offer, I intend to bring suit either individually, or, if I decide it is warranted, as representative for a class of similarly situated plaintiffs. At that time, I will seek the amount noted above, plus punitive damages under the California Consumers Legal Remedies Act, Cal. Civil Code §1750 et. seq., costs, fees, and such other monetary damages as provided for by law, including without limitation Cal. Bus. & Prof. Code §17200 et. seq., the implied warranties of merchantability and fitness for a particular purpose, and other relevant law.

Also, you have demanded the return of the broken device as a condition to the unreasonable discounted replacement offer which I accepted under protest. Your agent has informed me that you will charge my credit card for the full price if the broken device is not returned to you. I am considering seeking a protective order placing that device in the custody of the Court pending litigation. However, should I instead return the device, you are hereby notified that it is evidence in the anticipated litigation to which this letter refers. Should you modify, destroy, or resell the broken device, I will ask the Court to treat that as deliberate spoliation of evidence and make adverse inferences as appropriate.

Very truly yours,

Paul Gowder

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11 Responses to “The Kindle War Begins”

  1. Mike Says:

    Nice! Sue them in small claims court. Seek statutory damages under 17200, too.

  2. Mike Says:

    Also, download the video of the Kindle falling. Save it before they take it down.

  3. Paul Gowder Says:

    Grabbing the video was the first thing I did, on the very day that it broke.

    I’m trying to figure out 17200 — it’s a really hard statute to parse in order to sort out the right of action for private plaintiffs from the right of action for the a.g., and precisely what’s covered under there.

  4. Vanity Says:

    Awesome! Way to go.

  5. Mike Says:

    http://www.reedsmith.com/special_topic.cfm?cit_id=7

  6. Paul Gowder Says:

    Oooh, thanks Mike!

  7. eric Says:

    As long as you personally suffered some monetary harm, you should have standing to bring a 17200 claim (before Prop 64 you didn’t even need that; damned defense bar!!). The really great part is that the representative suit has less onerous requirements than a formal class action. Have fun!

    (Obligatory Disclaimer: I’m admitted in CA but on inactive status. This isn’t legal advice, just busybody commentary. Blah blah blah yadda yadda yadda nananana boo boo.)

  8. Paul Gowder Says:

    You know, this makes me realize that I’ve lost a lot of my demand letter mojo over the last few years. I used to be able to make them (and complaints) sounds like Dashiell Hammett novels. I think I’ll withhold this tonight and revise tomorrow for shorter sentences and more scary citations.

  9. Uncommon Priors » I am a good little citizen. Says:

    [...] an e-mail from some paralegal at Amazon.com asking me to call her to discuss the offer I made in my demand letter. Won’t have time to do so until Thursday, but looking forward to hearing what they have to [...]

  10. Epic: Kindle 2 Fails Man’s Drop Test, Forces Amazon To Pay Him $400 [Kindle 2] | thatWhat! Says:

    [...] a Kindle 2 from Amazon. He dropped it one day, and it sort of broke but not entirely, and Amazon wanted $200 to replace it. Instead, he got them to send him a $400 check, while still keeping the device. [...]

  11. Craig Says:

    Great info- found this while searching for Amazon legal regarding Amazon shielding a seller selling refurbs advertised as new on Amazon’s site. Advice welcomed.
    Thanks

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