From Morguefile From Morguefile
ALLENTOWN – The plaintiff in a class action lawsuit against Barnes & Noble who claimed the company's Nook e-reader chargers are defective has voluntarily dismissed the case without prejudice, retaining the right to bring the case again.
A Barnes & Noble spokesperson declined comment to the Pennsylvania Record.
The case, Hainley vs Barnes & Noble, Inc. et al, was filed Oct. 7 in the Allentown federal court by Michelle Hainley, who claimed the Nook chargers split apart, frayed and stopped working.
Hainley said Barnes & Noble provided a replacement charger the first time she contacted the company but was denied a replacement the second time because the company claimed her warranty period had expired.
Two models named in the case were the Nook Color and Nook Simple Touch. Hainley claimed hundreds were affected by the defect.
Hainley based that claim on complaints about the chargers on Barnes & Noble's website and on other retailer websites that Nook e-readers.
In December, Barnes & Noble filed a motion to dismiss the case, maintaining that Hainley failed to properly plead her claims or to demonstrate that the limitation provision in the company's express warranty is unconscionable.
The following month, Hainley filed her opposition to that dismissal, stating “while warranty limitations such as the ones at issue here are not by themselves procedurally unconscionable as a matter of law, under the circumstances of this case Plaintiff has sufficiently alleged that she had not meaningful choice with respect to the limitations provision.”
Hainley's motion summarized, “In short, B&N took advantage of its knowledge of the defect and plaintiff’s relative lack of sophistication in order to impose a warranty term that (1) plaintiff had no reason to expect, and (2) was unfair in light of the fact that B&N knew it was providing a flawed product.”
In another filing on Feb. 8, Barnes & Noble maintained its motion was not premature and that her case could not achieve class action status.
In particular, Barnes and Noble claimed the basis upon which Hainley sought class action status in the case "is vastly overbroad" because it included everyone in Pennsylvania who purchased a Nook Color or Simple Touch during an unspecified class period.
"In short, B&N has identified a fatal flaw in Plaintiff’s class allegations apparent on the face of the complaint," the motion said. "Plaintiff’s response fails to explain how this flaw could be remedied with or without additional discovery. Her class claims should be stricken."
A few days later, Hainley's attorney - Jonathan Shub of Kohn, Swift & Graf in Philadelphia - filed notice with the court that he had withdrawn as counsel for the plaintiff.
Hainley filed her own motion of voluntary dismissal, without prejudice, Feb. 13, with Hainley represented by Los Angeles attorney Kevin S. Conlogue of Kabateck Brown Kellner.