When Belleville attorney Christopher T. Kolker signed a two-year contract for DirecTV digital television service last summer, he expected that a free portable DVD player would arrive in the mail in six-to-eight weeks. Instead, he got a traditional, full-sized, stationary DVD player with no viewing screen.Whether defendants' conduct resulted in a promise of a free portable DVD player with a value of at least the advertised value;
Kolker filed a class action suit in St. Clair County Circuit Court May 9 on behalf of all persons who entered into a programming agreement with DirecTV and who, within eight weeks of submitting a valid redemption form, have not received a portable DVD player with a value of at least the advertised value.
Represented by Brad Lakin of Wood River, Kolker claims DirecTV advertised the incentive as having a value of up to $169 in some instances. The product Kolker received is available online for $29.99, he claims.
The suit alleges DirecTV breached contract.
"Some of the advertisements purport to limit the promise 'while supplies last'," the complaint states. "However, defendants either failed to provide the promised DVD players even while supplies lasted, never had supplies of the promised portable DVD players, or knowingly and intentionally continued to run the advertisements well after supplies had been depleted."
Kolker claims the DVD was advertised with phrases such as, "Bigger screen for easier viewing," "Light enough to take wherever you go," "High-output stereo speakers," "One-inch super-slim design," and "Complete portability with car adapter."
He claims he received a Sungale DVD2028.
"Unlike the portable DVD player that defendant advertised and promised, the Sungale DVD2028 cannot be utilized without connecting it to a separate, stand-alone monitor, it has no car adapter and cannot operate on DC power in a vehicle; it has no speakers and produces no sound," the complaint states.
According to the complaint, members of the Illinois state judiciary are excluded from the class, as well as defendants, their employees and any entity in which they have a controlling interest. The suit claims there are at least 50 members in the class and that joinder in a single action is impracticable.
The complaint states that the questions of law and fact common to all class members are:
Whether defendants' conduct constituted a contractual offer or acceptance of a contractual offer;
Whether the class made or accepted a contractual offer by entering into programming commitments and submitting the redemption forms provided by defendants;
Whether defendants' conduct constitutes a breach of contract; and
Whether the class members have sustained damages and, if so, the proper measure of their damages.
In 2001, Kolker won a $3 million jury verdict against Warrior Insurance, a high risk insurer, in St. Clair County. Presiding Judge Jan Fiss tacked on another $2 million in punitive damages in the case which stemmed from a $9,500 claim for a stolen pickup truck.
Warrior balked at paying, according to a Chicago Daily Law Bulletin article.
The article also stated, "Fiss castigated Warrior for 'reprehensible and outrageous consumer fraud, deceptive practice and misrepresentations' which Fiss said were 'deplorable.'"