Playback mpd3

Actually, Jonathan was always very responsive on emails.

It was the support email that I usually got no response from but that was because I didn't furnish my invoice when I registered.

Hopefully that's sorted now.

I have the EMM Labs XDS1 and the Playback MPS5 and I'd say neither were particularly noisy. I've had both in the same room. In fact the MPS5 (now in my study) is barely 3 feet away from me and spinning away without calling attention to itself. I think my CD Pro2 based Ayon sounds noisier.

I do agree the top of the line Esoteric transports used in the K01 (and I think the newest multi box dCS) are a marvel but there's something right about Playback and EMM's DSD DAC implementation that I like and the previous implementations on Esoteric's Cirrus and other off the shelf DAC chips just didn't gel with me. I think the K01's AKM DAC seems to be much better but I can't bring myself to buy a 25k player that uses off the shelf DAC chip.

Sabai, with all due respect you are mistaken. The case of Tinn vs EMM (please note it was Tinn suing EMM, not the other way).

" OPINION AND ORDER EMM's motion 149 for summary judgment against Tinn's breach of oral agreement claim is GRANTED. EMM's alternative motion for an order precluding Tinn from recovering damages for future profits and profits on sales not actually made is DENIED as moot. Tinn's motion 144 for partial summary judgment on liability is also DENIED as moot. However, the court will permit Tinn to proceed on a quantum meruit theory to recover the compensation, if any, EMM di d not pay to him for services and sales he performed for EMM's benefit during the period of their business relationship. Timm's motion for summary judgment against EMM's Lanham Act counterclaim is GRANTED as to the allegation of false advertising but DENIED as to the allegation of false association. Finally, Tinn's motion 159 to amend his complaint is DENIED as untimely. Signed on 2/27/09, by Magistrate Judge John V. Acosta. "

EMM recived a summary judgement on the first claim by Tinn due to Oregon law prohibiting, among other issues, a verbal contract of longer duration than one year. It was also apparent that they never agreed fully on the terms, thus, also rendering the idea that they ever had an agreement formally in doubt. The next two issues were found in EMM's favor because they were tied to the initial claim of breach of agreement, which were declared moot. Tinn was granted relief to receive the compensation due him.

Sebai, I don't know who you are or what bone you have to pick but you are mischaracterizing the content of their case, a case I am sure neither party wanted to pursue. In a nutshell, Tinn was asked to clean up the distribution mess for EMM, he did so. They never reached a final agreement (according to testimony) and yet Tinn continued to rep and distribute their products. It is obvious that EMM got very upset when Koch left EMM to start Playback Designs and EMM withheld payments to Tinn, to which Tinn was granted relief by the court.

Again, I have no afiliation to Tinn or Playback other than as a happy customer. Sebai, do you have any affiliation to EMM or anyone else involved in this case? The only thing of which I am certain presently about your background is that you are not an attorney nor do you play one on television. Regards.

Ghasley,
I have no connection with any audio company -- except as a customer. I have no bones to pick with either party here. In fact, the only issue I have ever had with either part is when I had a repair issue with an EMM product. I had it repaired at my own expense before selling it off.

I understand the circumstances of the Tinn vs EMM lawsuit. I have read the court documents from cover to cover.

With all due respect, the court documents show I am not wrong at all. You stated "The case of Tinn vs EMM (please note it was Tinn suing EMM, not the other way)." This is correct, but the fact that Mr. Tinn brought the suit is, ipso facto, proof of nothing at all, per se. In fact, the facts elucidated in the court documents show that essential parts of the judgment actually went against Mr. Tinn. In other words, Mr. Tinn was not able to prove his own claims. This is clearly delineated by the court documents.

I quote from the court documents: "As the proponent of the agreement, Tinn has not met his burden of demonstrating that sufficient facts exist upon which reasonable jurors could find clear and unequivocal proof, by a preponderance of the evidence, that an oral contract existed. Tinn maintains that the parties entered into a binding oral agreement in October 2005, but his own testimony shows they could not have." Mr. Tinn's statements can only be characterized as totally contradictory and confusing -- which is how the court found them.

Please note this paragraph in the court documents:

"As the above discrepancies illustrate, Tinn cannot meet his burden on summary judgment. The court's conclusion in Mukai Living Trust v. Lopez, 199 Or. App. 341, 111 P.3d 1150 (2005) applies with equal force here: "In the present case, nothing in the summary judgment record amounts to evidence from which a rational juror could find that the parties entered into an agreement with terms 'so precise that neither could reasonably misunderstand them.'" Id. at 345 (citation omitted). In this case, no rational juror could find a meeting of the minds on the terms of the alleged oral contract because Tinn himself has not been of one mind about what those terms were. Furthermore, Tinn testified that both he and EMM did not intend to be bound to any agreement without a written contract; given that unrefuted testimony, a rational juror could not find that the parties reached an oral agreement."

All of this cannot reflect well on Mr. Tinn as you will know by reading the details in the court documents. They point out not only to the facts not supporting material claims made by Mr. Tinn, they also point out that Mr. Tinn's memory is woefully deficient as to the major facts in the case. This is clearly shown in this statement in the court documents:

"Thus, Tinn's conflicting testimony about the oral contract's terms is not a basis upon which he may create a question of fact to survive summary judgment." And "Both parties acknowledge the rule that a litigant cannot create a genuine issue of material fact by contradicting prior sworn without explanation" -- which is exactly what the court documents show Mr. Tinn has tried to do in this case.

Further, the court documents state: "This rule does not extend to cases "in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. Rather, [the rule is] concerned with 'sham' testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue offact and avoid summary judgment." Kennedy, 952 F.2d at 267. On summary judgment, it is for the district court to determine whether the contradictory testimony was given in an honest effort to clarify, or was an intentional alteration designed to create a genuine issue of material fact." Please note the court's reference to " ...'sham' testimony".

Further, the court documents state ""Here, Tinn's testimony presented two diverging sets of contract terms. Important to the instant issue, he does not explain the many material discrepancies between his June 2008 deposition description ofthe contract terms and his May 2008 interrogatory description of those terms. Nor has Tinn explained the contradiction between these conflicting accounts of an oral agreement and his unequivocal deposition testimony ... statements which Tinn did not refute at the time and did not refute on summary judgment."

Further, the court refers to Mr. Tinn intentionally misrepresenting his association with EMM. I quote from the court documents: "Taken together, the continued references to EMM on Tinn's websites, Tinn's failure to respond to potential customers' inquiries, his failure to clarify his relationship with EMM, and his affirmative attempts to steer potential EMM customers to his own product line create a genuine issue of material fact as to whether Tinn falsely associated himself with EMM's mark, in commerce, such as to cause confusion about his affiliation with EMM. Therefore, summary judgment on this claim is inappropriate and Tinn's motion is denied."

In the end, what Mr. Tinn ended up with, according to the conclusion of the case, was the following: " ... the court will permit Tinn to proceed on a quantum meruit theory to recover the compensation, if any, EMM did not pay to him for the services and sales he performed for EMM's benefit during the period of their business relationship."

Mr. Tinn was awarded payment for services rendered that may not already have been paid to him. Other than receiving payment for services rendered, Mr. Tinn was clearly not the victor on the major legal points of this case.

Here is the link to those court documents for those who may be interested in reading them:

http://docs.justia.com/cases/federal/district-courts/oregon/ordce/3:2007cv00963/84055/181/0.pdf?1270846062

I believe the points I have made are well founded in fact based on the court record. The relevance to this thread? Would you have confidence in purchasing an expensive audio product from someone who exhibited these characteristics shown in these court records?

Sabai, I still don't understand why you ever introduced the court case into a discussion about possible noise from a DAC that you may or may not know a thing about? I guess you've just got alot of time on your hands.

As far as your original statement:

"I am a bit shocked to learn of this. But not entirely surprised because I read the legal proceedings between Jonathan Tinn and EMM on the Internet. The matter was decided in favor of EMM. You can Google the court documents if wish to read them. Let's put it this way -- I was not impressed by what I read about Jonathan Tinn."

After reading your last post you, very eloquently I must admit, validated that you materially misrepresented the outcome of the case. In simple English, the parties obviously had some sort of understanding with which to proceed or EMM would never have sent product. Obviously things stretched out over to exceed the timeframe of one year which rendered any verbal agreement moot. I believe any reasonable, UNBIASED person who takes the time time to read the case will reach the logical conclusion that there was some sort of verbal agreement reached. Unfortunately, in a case of "he said, she said" testimony, the court will always struggle to find fact in a two party verbal agreement without corroborating testimony to weigh opinion to one side or the other.

I must give you props though, you worked very hard on your writeup and further attempted to appear neutral albeit, failing on the neutrality test. Your condemnation of Mr. Tinn based solely on the fact that he was unable to prove each and every detail of a verbal agreement that would prove unenforceable in any event I find suspect. My own belief in this instance is that everything went off the tracks for Tinn and EMM when Koch left EMM to start Playback. I can imagine that Tinn would have been privy to Koch's plans and EMM would have known it.....and probably got very upset as things unfolded. Again, who really cares? EMM had to pay Tinn, Tinn couldn't prove the terms of a verbal agreement!

I will take you at your word that you have no relationship with EMM nor any bone to pick with Mr. Tinn. Your introduction of this topic to this thread however will lend doubt of your neutrality to the fair minded person. In the unlikely event that someone takes the time to read the case.....and then these lengthy posts, I certainly hope they have the good sense and objectivity to see through your mischaracterization of the case.

Ghasley,
As far as I am aware, being of retirement age and having time on one's hands is not yet an indictable offense. It seems, by your lengthy rebuttals, that you have as much time on your hands as I have on mine.

You stated, "After reading your last post you, very eloquently I must admit, validated that you materially misrepresented the outcome of the case. In simple English, the parties obviously had some sort of understanding with which to proceed or EMM would never have sent product." With all due respect, I validated nothing of the sort. The issue is not that the two parties had "some sort of understanding". The issue is precisely what that understanding was and if it constituted the basis in law for the claims made by Mr Tinn.

The court clearly decided Mr. Tinn's statements regarding the verbal understanding between himself and EMM did not constitute the basis in law for Mr. Tinn's claims, that Mr. Tinn was perpetually trying to change the "facts" he wished the court to consider as the basis for his suit, and that he could not prove his claims because no matter what version of the facts he presented they did not constitute proof in law. In fact, the court found that a lot of what was presented by Mr. Tinn were "sham facts". In the end, the court essentially threw that part of Mr. Tinn's suit out the window.

Further, you stated "Your introduction of this topic to this thread however will lend doubt of your neutrality to the fair minded person." Neutrality? Fair-minded person? The court was not neutral in its fair-minded judgment against Mr. Tinn. In fact, its judgment was not neutral at all. Its judgment was crystal clear -- that Mr. Tinn had attempted to use smoke and mirrors to build a case against EMM in order to win a judgment against EMM. Further, the court's judgment was that Mr. Tinn had misrepresented many of the facts of the case and that he had furthermore misrepresented his relationship with EMM to customers.

In closing, you have stated that I have mischaracterized the case. A close reading of the case shows that I have done nothing of the sort. A close reading of the case shows I have characterized it exactly as the court did. It is you who have tried to turn the court's judgment in favor of Mr. Tinn -- where the court clearly did not do so.

Regarding your casting aspersions on my reasons for posting this information here, if you would care to contact Mr. Tinn or Mr. Meitner and ask them if they have ever heard of my name their responses will be in the negative. If you ask anyone at their companies if they have ever heard of my name the only person who may answer in the affirmative is the person who processed my repair at EMM.

I feel it is time to put this matter to bed and let the thread resume its intended direction.