I passed the same bar that you did. And yes its rude to think your psuedo law knowledge is better than mine. I stayed at a holiday inn express so it makes me an expert. I know that most sales issues are a civil matter. In these cases they want you to resolve before bringing to court. Judges want you to arbitrate before bringing a case to court. If one party refunds you the money back, the matter is pretty much dead. But again, unless you are trying to claim some kind of damages, (lol try explaining difficulty changes and lost minging profits to a judge) i doubt you have any case.
This was actually rehashed several times in several threads, but I can post a summary here:
Under federal law, several elements are required to prove fraud: a material false statement made with an intent to deceive, a victim’s reliance on the statement and damages.
You can look that up here. http://www.federalcrimefaq.com/what-constitutes-the-crime-of-wire-fraud/
BFL saying they had a prototype and a shipping date when they obviously did not and taking peoples money under those pretenses could not have been an accident. There was clear intent to deceive about the current and state shipping date of BFLs products.
I think everyone who made a BFL purchase relied on the shipping dates provided in order to calculate their risk and return.
The damages are trivial to illustrate, plug a Jalapeno in and it generates a revenue stream. Loss of that promised revenue stream is all you need tell the judge.
You cannot undo a criminal act just by giving a refund or any other act of goodwill for that matter. It is also not clear what would happen to BFL if everyone asked for a refund at the same time, if BFL did not spend any of the pre-order cash, why did they need to take pre-orders? If they did spend some of the pre-order cash and something goes wrong (spending out of control due to over optimistic schedules for instance), then not everyone could get a refund.
Interesting Discussion. Fraud both civilly and criminally are very closely related; although more commonly pursued in Civil court unless notorious, widespread or egregiousness:
Criminal fraud requires criminal intent on the part of the perpetrator, and is punishable by fines or imprisonment. Civil fraud, on the other hand, applies more broadly to circumstances where bad-faith is usually involved, and where the penalties are meant to punish the perpetrator and put the victim back in the same position before the fraud took place. The second point is important because civil proceeding are designed to put parties in an equity based pre harm condition and are not designed to assign criminal guilt.
While the exact wording of fraud charges varies among state and federal laws. the essential elements needed to prove a fraud claim in general include: (1) a misrepresentation of a material fact; (2) by a person or entity who knows or believes it to be false; (3) to a person or entity who justifiably relies on the misrepresentation; and (4) actual injury or loss resulting from his or her reliance.
Most DA's will only pursue a criminal fraud charge if there are clear signs of a all the elements of the crime. In my opinion refunding money when requested and the commencement of performance would tend to chill most DA's from pursuing such a charge. One can always bring a personal suit if they feel they were wronged, have proper standing in court and that the court can offer a legal remedy to redress the harm.
In my completely personal opinion (purely academic - non legal advice), I do not see clearly all the elements of fraud from either a civil or criminal standpoint. One could argue breach of contract perhaps, but the best you could hope for would normally be the return of your money, which apparently can be procured through less expensive means then litigation. The hope for punitive damages springing from a breach of contract case would most likely be slim in this instance if at all.
Again, my personal advice is, ask for a refund if you are unhappy with BFL's progress. If you do not have an order pending with BFL, then you are not a proper plaintiff and would not have grounds for legal action and I question what you hope to derive from the time spent discussing this matter. If one requests a refund and is refused, which I have not heard of happening, then you can certainly seek a legal redress. That said, you would still have to prove breach of contract by BFL, which may or may not work in your favor depending on the legitimacy of your argument and the skill of your lawyer.
I fully understand that some people dislike BFL per se, and I am sure that one or more will respond to this post. I tried to be objective and merely state my understanding of the present state of affairs and the options likely open to people. For purposes of contextual disclosure, I have a preorder with BFL. I do not believe they have engaged in criminal or civilly pursuable fraud. They have had many challenges and continue to work through them. The original specs have changed and will likely change before final shipment. While there appears to be ample material to demand a refund if I so wished, I am content to take receipt of the whatever substantially conforming goods they can produce. I do not see a financially viable alternative, so BFL still appears to be my best option for setting up a mining operation with ASICs. It appears to me that they are getting close to resolution having seen several of the 5gh/s units in action. Could my position change? Sure, anyone of a number of things could alter it, but for now I am planning to see it through.
If you are a preorder customer, you have to make your own similar decision, which may or may not be contrary to mine.
