Wednesday, October 9, 2013

Would the Nikon D600 be Subject to a Class Action Lawsuit?

Because of the way that the transition of the Nikon D600 to the D610 has been handled, the inevitable talk of a class action lawsuit is making it's rounds on the internet. Is this a case for it?

Updated February 2014



Note: I've been many things in many career, but a lawyer is not one of them. Feel free to add your input in the comments section, especially if you've had legal training. 

To quote from Wikipedia this is what you need to qualify for a class action in the U.S. (Hey, when you are a layperson, where else are you going to start?): "Class actions may be brought in federal court if the claim arises under federal law, or if the claim falls under 28 USCA § 1332(d). Under § 1332(d)  the federal district courts have original jurisdiction over any civil action where the amount in controversy exceeds $5,000,000... and the proposed class must consist of a group of individuals or business entities that have suffered a common injury or injuries."

  • Commonality—there must be one or more legal or factual claims common to the entire class (in some cases, it must be shown that the common issues will predominate the proceedings over individual issues, such as the amount of damages due to a particular class member),
  • Adequacy—the representative parties must adequately protect the interests of the class,
  • Numerosity—the class must be so large as to make individual suits impractical (in other words, that the class action is a superior vehicle for resolution than numerous individual suits), and
  • Typicality—the claims or defenses must be typical of the plaintiffs or defendants.

The key is the $5 million threshold. Has there been $5 million dollars worth of damages caused by excessive debris from the D600 shutter? For anybody asking for a recall, you have to consider what's at stake. In a legal dispute, you have to prove that you have been materially damaged by the party that you are suing. Crudely speaking, material damages boils down to lost money, as lost opportunity and lost money can be measured in financial terms in the same way that property loss can.  Somebody who's a lawyer will probably have something to add, but I don't think that under a court of law, not having a perfectly working shutter counts as "damages." First, you have to prove that what is happening with the D600 is above the normal expectation of a similar DSLR; this part can be demonstrated with appropriate data. The second issue is that you would need to prove that the debris affected you materially in some way and here's where it gets tricky, as a dirty shutter mechanism isn't quite the same as having a defective camera. It's not an either/or broken-or-is-not-broken situation. It's more like a probable event; a long run certainty but no guarantee of being affected in the short run.

The following is a scratch-calculation that you would do on a dinner napkin over the course of an interesting conversation. It's by no means accurate, but I find that doing math like this helps to hone your thinking as you tackle a problem. Let's look at the cost of expected cleaning over the lifetime of the sensor. Say that worst case you have to wet clean every 2000 shots... if you make it to 40,000 clicks that's 20 cleanings. I know the D600 shutter is rated to much more than this, but this seems like a reasonable number to to achieve before you move on to the next camera. Say that each wet cleaning costs you an average of $10 (3 swabs per $30 kit)... that's $200 over the lifetime of ownership. Problem: in real-world terms, any repair at a Nikon service center is going to cost at least that much or more.

How many people were affected? Even though Nikon is transparent about total unit volumes, they aren't broken out to the model level; nobody knows for sure except Nikon themselves. I'm going with an anecdotal ball-park of shipments of 20,000 units in the U.S, or 60,000 total. (Mind you, I suspect this number is world-wide, not U.S. specific, so that will throw the math into question. This figure was up on the internet in the preceding weeks, so I have no way of verifying it since it was posted as a rumor). If every unit was affected, then at an average lifetime 'damages' of $200 per unit, the total monetary damages caused by excessive debris is $12 million. That number comes down quickly if turns out that only a limited number of units were affected; if only the first batch was affected, the total potential damage is $4 million, which would be under the threshold for a federal case.... that's assuming the whole batch was affected. Even using the higher $12 million scenario and accounting for all of the guestimates used to come up with these figures, it's questionable whether the reward is worth the effort.

However, there's a more obvious reason why litigation would likely not be a fruitful avenue: Nikon is indeed servicing affected units, albeit reluctantly in it seems in some cases. So far, the warranty process is playing out as it should; litigation is a last resort option when there is no other recourse. It only goes to show that Nikon changing the model designation to the D610 is a PR short coming, but thankfully it's not a complete service failing.


February 2014: Nikon, in countries across the world has issued a service advisory. All D600 owners will receive free shutter replacements, even if out of warranty.




11 comments:

  1. Thanks for your preliminary work on calculating this. My understanding is that cleaning the sensor yourself voids the warranty. Thus, the cost of cleanings would come in higher than with the DIY costs you've estimated. Furthermore, the value of our D600s have fallen with the issue of D610, which is clearly a rapid reissue of the camera because of the problems with the D600. We will probably never be able to sell our D600s. Should this figure into the cost? I think we need a class action lawsuit, but I don't know where or how to begin.

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    1. The calculation is different if you change the damages from the expected cost of cleaning to the the cost of a shutter replacement, but the real unknown is the total number of affected units, so the math is fairly shaky to begin with. What I was trying to say was that no matter what the real numbers are, the mechanics would make it difficult to proceed.

      I'll be the first to agree that the situation is a mess but my experience with litigation is that you want to avoid it at all costs. Usually, you litigate for breach of contract, but I haven't heard of anybody successfully recovering accelerated depreciation. If you you could do that, owners of Dodge Darts would be suing Chrysler because their cars don't hold value as well as a Honda Civic.

      As far as I can tell, if you did indeed get the shutter replaced (and not a mere cleaning) then your unit is ok... there may be some initial oil splatter because of the new installation, but nothing like the issues that people have seen previous. So keep your receipts and document,document, document if you want to resell, but otherwise, it's unfortunate that D600 users are going to suffer in that regard. Also, if you bought locally, try to use that to your advantage to gain some sympathy with the retailer on your next camera purchase.

      The other thing is probably to be patient. It's not likely now, but it's possible that the used market will come around and look at the D600 more favourably in the future... after all, look at where used D700 prices are right now. Selling a D600 now during all of the noise is like selling during a stock market crash.... it's the wrong thing to do but everybody is doing it.

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  2. I haven't had the shutter replaced. I have been out of the loop for some months due to being busy with other things; the last I heard Nikon wouldn't admit there was a problem. Some people were successfully getting Nikon to quietly repair the camera, whatever that amounted to -- cleaning or shutter replacement -- while others were not having any luck with Nikon customer service. With the D610 release, it's clear that there is a problem with D600s, or at least some of them. I guess I will try for the shutter replacement. I do have the dust/oil spots. Thanks again for your perspective. Clearly, I don't know much about legal proceedings. I do know that for me, Nikon's reputation is damaged. However, all my lenses are Nikon so I'll probably stay with them.

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    1. In my area (Vancouver), I've heard that the local service depot will do it regardless of whether or not you are the first or second owner, which would be unusual. My feeling is that some time ago, Nikon flipped a switch and just and decided to stop wasting time with the cleanings and to just go for the replacement. If that is true, it would still be a knock on the way the PR was handled; it's not fair to the service guys who've had to do the clean up, but then again, in today's corporate communications wisdom, if you don't acknowledge the problem, you don't acknowledge the solution either. I've been in a few corporate crises in my time. Good luck.

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  3. I have sent my second defective D600 back to Nikon today. I don't want it repaired. It is a LEMON. I want them to send me a D610 as a replacement. We'll see what happens.

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  4. I received a call yesterday from Morgan & Morgan Law Firm and the attorney is investigating the oil spot issue. I am in high hopes that he will authorize me to put his contact information out there so others can get on board with this. After having sent my D600 in four times in less than a year, I am less than certain that the issue will not resurface. It is a faulty design. Period.
    Insanity: doing the same thing over and over again and expecting different results.
    Albert Einstein

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    1. That's indeed unfortunate. I continuing to hear mixed experiences about the whole thing, some good, some frustrating. I hope that you get a proper resolution for yours.

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  5. I opened a case with Nikon about 2 months after I got my D600 regarding the spotting problem and they said to have the camera sensor cleaned. I had it clean a couple of times. That didn't help so I sent it back to Nikon for evolution. They said it was no longer under warranty and the cost to fix the camera was $1115.00.

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    1. That's unfortunate, and unfortunately, it's not the first story I've heard of Nikon being difficult with repairs. This is why I prefer to shop locally, if you run into problems, getting the store on your side helps with the leverage in cases like this.

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    2. Is the service charge of $1,115.00 for a shutter mechanism replacement? Nikon is responding to the "dust" on the sensor with a general cleaning and shutter mechanism replacement.

      My D600 showed massive spots after six weeks of use (about 2500 actuations). Since then it has been sent to nikon four more times. After 2 shutter replacements and 4 cleanings, nikon is replacing the D600. if the cost to replace the shutter is anywhere close to $1,100 Nikon would have saved money by replacing it with a D800E at the first service call.

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  6. Morgan & Morgan is not the only law firm looking for clients for a potential Class Action against Nikon. Lieff Cabraser Heimann & Bernstein has started an investigation into the D600 defect, and are searching for D600 owners to be "class representatives."

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