Tuttle et al v Audiophile Music Direct

[PeterG]

3 hours ago, Jud said:

If they want to listen rather than collect, I’m not sure what problem you’re finding when what they were sent isn’t what they wanted to listen to.

 

I'm also not seeing the relevance of the fact that these LPs, though they aren't what consumers wanted to listen to, would be valued by collectors who don't want to listen to them, just have them sit on shelves in plastic wrap and warp. (I knew a record collector. Shelves full of unplayed and eventually warped and unplayable records still unwrapped whose prices he checked on Goldmine. Struck me as a quite asinine hobby.)

 

I don't mean to poke at you personally, but you seem to keep ignoring a huge fundamental issue.  Have you heard a One-Step?  They sound divine, they are what their buyers want to listen to.  I cannot speak to one anonymous example, but the secondary market in general is largely used records with visible wear. 

 

If you have not heard one, try to friend a friend who is nutty enough to drop $150 or so on an LP, and ENJOY!  (You'll quickly hear why very few One-Step owners will be returning their discs.)

[Jud]

2 minutes ago, PeterG said:

 

I don't mean to poke at you personally, but you seem to keep ignoring a huge fundamental issue.  Have you heard a One-Step?  They sound divine, they are what their buyers want to listen to.  I cannot speak to one anonymous example, but the secondary market in general is largely used records with visible wear. 

 

If you have not heard one, try to friend a friend who is nutty enough to drop $150 or so on an LP, and ENJOY!  (You'll quickly hear why very few One-Step owners will be returning their discs.)

 

The "huge fundamental issue" is really no issue at all. If I sue my contractor because he finished the outside of my house in brick rather than the wood siding we agreed to, what does it matter if you think brick is great? These are folks who prefer all analog, who bought the discs on that basis, and they're the ones who are suing. What you or I prefer doesn't matter (so long as there is somewhere a market of buyers for all analog to establish damages).

[Allan F]

25 minutes ago, Jud said:

The "huge fundamental issue" is really no issue at all. If I sue my contractor because he finished the outside of my house in brick rather than the wood siding we agreed to, what does it matter if you think brick is great? These are folks who prefer all analog, who bought the discs on that basis, and they're the ones who are suing. What you or I prefer doesn't matter (so long as there is somewhere a market of buyers for all analog to establish damages).

 

The issue is not the sound quality of the recordings which Mobile Fidelity marketed as "one step" when they, in fact, were not. The case is fundamentally one of misrepresentation by Mobile Fidelity. Establishing damages, however, may present a significant challenge.

[Jud]

27 minutes ago, Allan F said:

Establishing damages, however, may present a significant challenge.

 

Not sure they will need to, depending on whether intervention by other putative plaintiffs is allowed.  Before the court at this point is a jointly proposed settlement between MoFi and current plaintiffs to the following effect:

 

"Under the terms of the Settlement Agreement, the Defendants agree to provide Class Members with the following three (3) different approaches to relief: (i) For individuals who want to return their Applicable Records, Class Members will receive a full refund including associated taxes and shipping; For individuals who want to keep their Applicable Records, they may elect to either receive (i) a refund payment of five per cent (5%) of the record’s original purchase price and associated taxes and shipping in the form of a check or electronic payment, or (iii) a coupon in the amount of ten per cent (10%) of the record’s original purchase price for retail purchases at either of Defendant MoFi’s or Music Direct’s retail websites. The total gross value of available relief is over $25 million dollars."

[Rt66indierock]

1 hour ago, Jud said:

 

Just to be thorough about this, the measure of damages isn't what it's worth as a collectible vs. what you paid, it's what it would be worth as a collectible if it were indeed all-analog (thus presumably attracting people who are big on an all-analog chain) vs. what it attracts now as a collectible without that all-analog market. Of course there would have to be sufficient evidence provided in support of a higher value for an all-analog version.

 

Jud, the Tuttle case preliminary settlement was negotiated because the plaintiffs could not prove any damages. Everything now is just about legal fees.

[Jud]

9 minutes ago, Rt66indierock said:

Jud, the Tuttle case preliminary settlement was negotiated because the plaintiffs could not prove any damages.

 

Well, I was only a lawyer for 42 years, so I may not have this just right, but if someone sued an entity I worked for and could not provide any proof of damages, guess what they'd have gotten in return? A motion for summary judgment, since proof of damages is fundamental to continuing to assert a claim.

 

So what actually happened is that plaintiffs convinced MoFi they could at least make a reasonable attempt at submitting evidence of damages if the case went to trial.  As @Allan F mentioned, such proof would likely not be easy (I know how I'd try to do it, and probably the plaintiffs outlined something similar to MoFi), so in view of that the current plaintiffs were willing to settle for what seems to be a very reasonable outcome.

[The Computer Audiophile]

Does anyone know if, in cases like this, insurance pays the cost for the company being sued?

[Jud]

2 minutes ago, The Computer Audiophile said:

Does anyone know if, in cases like this, insurance pays the cost for the company being sued?

 

Usually, but I don't know about Music Direct's particular coverage in the event of fraud claims (which is what this is listed as on the docket).

[Iving]

13 minutes ago, The Computer Audiophile said:

Does anyone know if, in cases like this, insurance pays the cost for the company being sued?

 

Doubt it.

 

Misrepresentation is a very dirty word in matters of insurance.

[PYP]

38 minutes ago, Jud said:

 

Not sure they will need to, depending on whether intervention by other putative plaintiffs is allowed.  Before the court at this point is a jointly proposed settlement between MoFi and current plaintiffs to the following effect:

 

"Under the terms of the Settlement Agreement, the Defendants agree to provide Class Members with the following three (3) different approaches to relief: (i) For individuals who want to return their Applicable Records, Class Members will receive a full refund including associated taxes and shipping; For individuals who want to keep their Applicable Records, they may elect to either receive (i) a refund payment of five per cent (5%) of the record’s original purchase price and associated taxes and shipping in the form of a check or electronic payment, or (iii) a coupon in the amount of ten per cent (10%) of the record’s original purchase price for retail purchases at either of Defendant MoFi’s or Music Direct’s retail websites. The total gross value of available relief is over $25 million dollars."

seems reasonable.  Did MoFi try offering something like this to stop the action?  At any rate, no matter which option is chosen, I think everyone should get one of these:  https://www.musicdirect.com/equipment/clothing/mobile-fidelity-mofi-retro-t-shirt/

[Jud]

26 minutes ago, PYP said:

Did MoFi try offering something like this to stop the action?

 

Yes, that's what a settlement is.  But you only want to do it to get rid of litigation that has some realistic chance of going to trial or possibly even succeeding, because if you toss money at everyone who sues frivolously, guess what everyone will line up to do?

 

Edit: Some companies try to go the other way and make it a policy never to settle, thinking that will discourage potential lawsuits - anyone thinking of suing has to be prepared to go all the way through trial, an expensive and time consuming proposition.  Back in the day, Allstate Insurance Company in the US used to be famous for this.

[The Computer Audiophile]

5 minutes ago, Jud said:

 

Usually, but I don't know about Music Direct's particular coverage in the event of fraud claims (which is what this is listed as on the docket).

Thanks. 

 

I remember sitting in on a MN appellate court argument, where the insurance company for an out of business contractor, was arguing that a company that no longer exists can't be sued. The contractor had no skin in the game and couldn't have cared less and likely didn't even know the case was still going. It was just the insurance company lawyers arguing the case, which is what made me think about MoFi's actual liability and if this involves money out of MoFi's pocket.

[PeterG]

58 minutes ago, Jud said:

 

Well, I was only a lawyer for 42 years, so I may not have this just right, but if someone sued an entity I worked for and could not provide any proof of damages, guess what they'd have gotten in return? A motion for summary judgment, since proof of damages is fundamental to continuing to assert a claim.

 

So what actually happened is that plaintiffs convinced MoFi they could at least make a reasonable attempt at submitting evidence of damages if the case went to trial.  As @Allan F mentioned, such proof would likely not be easy (I know how I'd try to do it, and probably the plaintiffs outlined something similar to MoFi), so in view of that the current plaintiffs were willing to settle for what seems to be a very reasonable outcome.

 

I have no legal experience, so please grant just a bit of leeway.  The agreement you cited--return/5% refund/10% credit--is essentially summary judgement from an economic perspective, in a case where (if I am correct about buyers loving the sound of One-Steps) virtually nobody is going to return, and the vast majority will take the 10% credit.  While I suppose summary judgement has zero costs once it's issued, the super-low cost agreement saves on legal fees and helps a difficult PR situation.  So maybe the agreement is actually lower total costs?  

[Jud]

1 minute ago, The Computer Audiophile said:

Thanks. 

 

I remember sitting in on a MN appellate court argument, where the insurance company for an out of business contractor, was arguing that a company that no longer exists can't be sued. The contractor had no skin in the game and couldn't have cared less and likely didn't even know the case was still going. It was just the insurance company lawyers arguing the case, which is what made me think about MoFi's actual liability and if this involves money out of MoFi's pocket.

 

Fraud is intentional wrongdoing, and you can imagine that insurers don't want to insure people or companies against intentional wrongful acts.  Now of course accusing someone of fraud and proving it are two different things, so the insurer might cover litigation that includes accusations of fraud, subject to being reimbursed on a verdict that fraud has been committed; or the company might pay, subject to reimbursement from the insurer if fraud is not found; or some other arrangement.

 

In this instance, I'm sure the settlement would include no admission of fraud, so that might be a way to have insurance coverage even with an initial allegation of fraud.

 

But - what makes me think Music Direct has some skin in the game, and that perhaps the insurance is paying for the litigation but not funding the settlement, are the terms of the agreed proposed settlement.  Remember that if you keep your album, you can choose either a 5% refund in real money, or a 10% refund as a coupon to buy MoFi products.  That suggests the MoFi products would only cost MoFi half as much as they charge.  Why would they worry about this if the insurer was paying for everything?

[Jud]

1 minute ago, PeterG said:

 

I have no legal experience, so please grant just a bit of leeway.  The agreement you cited--return/5% refund/10% credit--is essentially summary judgement from an economic perspective, in a case where (if I am correct about buyers loving the sound of One-Steps) virtually nobody is going to return, and the vast majority will take the 10% credit.  While I suppose summary judgement has zero costs once it's issued, the super-low cost agreement saves on legal fees and helps a difficult PR situation.  So maybe the agreement is actually lower total costs?

 

I understand what you're saying, though the summary judgment analogy is a little strained. 🙂  Yes, the agreement must appear to cost less than the projected expense of proceeding with the litigation, otherwise there's no incentive to settle.

[The Computer Audiophile]

47 minutes ago, Jud said:

Why would they worry about this if the insurer was paying for everything?

A very open ended question to which many answers could be given. Good point nonetheless. 

[The Computer Audiophile]

I know very little about vinyl, but it seems a bit strange to me that a giant label like Blue Note is producing an all analog AAA record of Miles Davis from 1952, 1953, and 1954. 

 

"This Blue Note Classic Vinyl Edition is mono, all-analog, mastered by Kevin Gray from the original masters, and pressed on 180g vinyl at Optimal."

 

https://store.bluenote.com/products/miles-davis-volume-1-lp-blue-note-classic-vinyl-series

[JoeWhip]

They are producing it because people are buying them. Some just are collecting them, others actually play them while others buy them, hold them and then resell them. Whatever floats your boat.

[The Computer Audiophile]

6 minutes ago, JoeWhip said:

They are producing it because people are buying them. Some just are collecting them, others actually play them while others buy them, hold them and then resell them. Whatever floats your boat.

The strange part to me was the AAA and my belief that it really isn't possible top produce such an album for mass markets in AAA. Especially given the tape is from the early 1950s, and all the other reasons MoFi gave for not being able to produce its One Step albums from analog tape.

[Iving]

13 minutes ago, The Computer Audiophile said:

The strange part to me was the AAA and my belief that it really isn't possible top produce such an album for mass markets in AAA. Especially given the tape is from the early 1950s, and all the other reasons MoFi gave for not being able to produce its One Step albums from analog tape.

 

One perspective here: https://forums.stevehoffman.tv/threads/mobile-fidelity-sound-lab-has-been-cutting-vinyl-from-digital-since-a-long-long-time-ago.1150351/page-922#post-30283394. I have seen other remarks about 50s/60s tapes being better "survivors" than 70s and beyond.

 

Miles is a popular Artist among vinyl lovers/for reissue. I wish the masters had survived for much more obscure 50s stuff - also 60s/70s West Coast that afaik only available as needle drops. But yes the market will produce what it thinks will sell.

[The Computer Audiophile]

Perhaps my initial post wasn't very clear. I'm not surprised by the release of any album from any artist on vinyl. My surprise is that it's touted as being ALL ANALOG. Given what MoFi just went through and knowing a little about what it takes and the limits of producing an ALL ANALOG album on vinyl, this sounded like it may be too difficult to actually pull off today.

[firedog]

30 minutes ago, The Computer Audiophile said:

The strange part to me was the AAA and my belief that it really isn't possible top produce such an album for mass markets in AAA. Especially given the tape is from the early 1950s, and all the other reasons MoFi gave for not being able to produce its One Step albums from analog tape.

But it seems like the main reason they didn't use tape is that the labels wouldn't let them in many cases. So they could only make a digital conversion of the tapes on site and then work with that.  They then chose the method that got them in trouble as the best sounding one given that starting point.

Maybe that Miles mono master is in very good shape.

 

Obviously Blue Note doesn't have the issue of the label preventing them from using the master tape like Mofi did; and  with mono you have only one track and have to do much less physical manipulation/playback of the tape to get a disc. 

That may account for the difference. 

My problem with it is those recordings don't actually sound that great anyway. 

[MarcelNL]

https://www.cohearent.com/  analalog mastering is offered

[The Computer Audiophile]

1 minute ago, MarcelNL said:

https://www.cohearent.com/  analalog mastering is offered

Analog mastering is offered by tons of people and places. 

 

 

[Iving]

6 minutes ago, The Computer Audiophile said:

Perhaps my initial post wasn't very clear. I'm not surprised by the release of any album from any artist on vinyl. My surprise is that it's touted as being ALL ANALOG. Given what MoFi just went through and knowing a little about what it takes and the limits of producing an ALL ANALOG album on vinyl, this sounded like it may be too difficult to actually pull off today.

 

If they can run the tape and not use DSD and legitimately claim AAA then the run is limited by hardware and plating issues. M0F1 got caught because they said they were going to produce 40,000 'Thriller', and Esposito et al suspected they couldn't do that without digital.

 

Sorry if still not catching your drift.