Legal Question in Civil Litigation in Virginia
I'm unsure what area of law to ask this question in. I purchase a product of an online company which I believe to be based in California. The product was listed as "The Stage 1 Performance chip uses the latest in aftermarket ECU technology to tweak computer parameters to the most optimal performance setting." When I received this product in the mail and physically looked at where this "said performance chip" was to be installed, I realized this was nothing more than a basic electrical resistor (maybe a $5 part) in a gray case and a red slide to "adjust the performance or economy" of the part in question. I immediately determined that this is not what it was said to be and that's why they do not post the installation instructions online, because any shady tree mechanic would know this has nothing to do with "performance chips" and has everything to do with Tricking your computer into thinking your vehicle is receiving too much or too little air through the Mass airflow sensor and telling the computer to allow more fuel or decrease fuel to air mixture. I never opened the package and within days of receiving this product I sent them an email notice (per their request for any returns for refunds) through their website message system because they do not list an email address or phone number to make returns for refund. The original packaging was never opened and I explained that this was not the product that was advertised and I would be sending it back for a full refund because I never opened the packaging after I learned the false nature of this product.
Their guarantee states (cut and paste)
Guarantee
PerformanceChipTuning offers a 14-Day Guarantee. If you are not satisfied with your purchase within 14 days of receipt you may send the product back for a refund according to our requirements: All products returned must be in new condition, original packaging.
Their return policy states (cut and paste)
Return Policy
Merchandise Return
For returns, please Email us us within 14 days of receipt. Once an approval has been granted by email, please mail the products back to the address provided by our sales team. Products must be packaged in original boxes and returned within 7 days of the return authorization. Failure to do so will void your return. Returns for refunds are subject to a 25% restocking fee. Customers are responsible for the return shipment costs. PerformanceChipTuning under no circumstance will refund the customer for initial and return shipping costs.
All returns without authorization are subject to refusal.
Special order products are subject to a 35% restocking fee
Products returned damaged, in unreadable condition will be returned back to the customer.
All returns must be accompanied with a delivery confirmation or signature delivery to show prove of delivery to our warehouse.
Under no circumstance will we be liable for installation labor costs for installation and or removal of a part ordered from this site.
I have an email confirmation of purchase on 01/18/2014. I received shipment of this product 01/28/2014 per USPS tracking number. I sent this package back VIA UPS with signature only to ensure that the product was retuned 02/05/2014 and it was received and signed for on 02/11/2014 11:08AM at the only address I found anywhere for this company and that was back to the original warehouse where this product was shipped from to me.
After sending multiple emails/messages through their website I did not receive a response from them one time. I finally sent a last message stating I have never received my refund from the returned product and I sent numerous messages stating I was returning this product for a full refund before the 14 day period was up with no response and if I am not refunded the money owed to me by your "company" I would begin full legal action. The date (from their records says that this message was sent from their website from me, to the on 04/20/2014. They did respond to this message on 04/21/2014. I did not see this email from them because it ended up in my spam/junk folder until just a few days ago. In their email to me they asked for the tracking number because they show that they have never received my return.
So I went to the UPS store I sent this return from, they printed out all the data on this package and I scanned and forwarded it to them this 05/16/2014 12:29PM.
This was their response (cut and paste)
Hello,
We have not been able to find your package with the information given. It may have gone to another warehouse. Since this was from a few months ago, we will not be able to refund the account.
Warehouse
My only reply was "my attorney will be in contact with you".
I believe this company has scammed many people out of a lot of money by falsely advertising a false product and have not stood by many (IF any) returns per their policy agreements.
I want to know what and ALL legal action I can take against this company for what they have done to myself and possibly thousands of other customers who were scammed by this company and their bogus products and selling a $5 product for $69.99 & $9.99 shipping.
At first this was just about getting back my money for this product. Upon their refusal to grant me my refund, it is now about shutting this bogus company down for good to protect other consumers from being scammed by other internet companies that prey on consumers with false advertising, cheap products, and not following their own return agreements.
Please anyone, what are the options here??
1 Answer from Attorneys
The case of a resistors...
I always warn clients to be careful. When a $70 frustration turns into ideas for million-dollar lawsuits, you need to take a step back, breath deeply, and get fresh air. Bluntly, you don't have the resources, or even the standing, to lead a class-action lawsuit like this.
Also, you have be courageous. You have to admit you made a bone-head error. That's okay -- I can't tell you the number of times I accidentally bought something on ebay that had a "great" price -- only to find out I owed twice my bid in shipping. Whoops!
It sounds like you made mistake buying this -- realized it after you have hit "purchase", and then tried to get out of the mistake you made. Bottom-line -- this just is not going to happen.
But why, you ask?
First, you are not located in the same state (and most likely, not even in the same country) as the seller. While the seller mailed you something, mere mailing does not give sufficient contact with the forum state (that would be where you live) to actually subject the seller to personal jurisdiction (in your state). For a lively and informative discussion on personal jurisdiction in the context of commercial transactions, read International Shoe Co. v. Washington, 326 U.S. 310 (1945). A quick link is here: Ye olde Shoe Case.
Alright, I'm kidding. Shoe is a snooze fest of epic proportion, and unless you have nothing else to do with your life, you should probably avoid it. Just take my word for it -- your seller probably likes sufficient contact in your forum state for you to get any kind of suit against them going where you live.
BUT...if that were not enough, you also have the problem of enforcement of foreign judgments. It is often a great misunderstood truism in the legal world that "suing" someone means you'll get paid. Nope. You must sue someone, win, anthen you must collect. Good luck, my friend!
But why, you ask?
Well let me tell you! Most likely, if the court found it had sufficient personal jurisdiction over the defendant (not likely as previously discussed), the defendant company would just ignore you. At which point, you would timely move for default judgment. Boom! You win -- right? Well, no. Default judgment is not a trial on the merits -- so you cannot enforce the judgment outside of your state. Uh oh. If the seller lives in another state, and you have to try to collect in that other state...damn! You can't!
But I REALLY want to sue them because I am SOOOO MAD!
Great! Hire a lawyer in home state where the seller is located, and be prepared to fly there to testify against them. Suddenly, you understand why a $70 fu-bar is NOT worth a $10K lawsuit. Did I say $10,000? Sure did! A jury trial will cost at least that much, and -- oh by the way -- it takes a year or even two to get to the trial stage. Then...you have to assume they have any money to win. Oh, and you have to prove your damages -- beyond the $70 you paid.
In the end, very very rarely are anger or vengeance suits worth anything. If you have a lot of disposable income and wish to protect your fellow citizens, then by all means -- go for it. But for the rest of us...take a long walk outside. Realize you weren't thinking clearly when you made the purchase. Post complaints with the better business bureau and every online blog you can find...and then write-it-off as a loss. You'll be a lot happier in the end.
If this soliloquy was insufficient to deter you, by all means, give us a ring! We have handled hundreds of civil suits across the east coast. We specialize in giving bad people real hell in court! Sometimes we even defend the really bad people...but that's a different story! Give us a ring at 1-800-579-9864 and let's chat!
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
