2001-01-26 Harley-Davidson Response - Minnesota Judicial Branch

informed him there was no way of knowing what the price would be for a bike that had not even
been made yet. Kinney also admits no one at Twin Cities Harley-Davidson ever used the term
“Manufacturer’s Suggested Retail Price” or “MSRP” (Kinney Depo, pp. 19-21, Unger Aff.,
Exhibit 10). Kinney bases his claim solely on his recollection that a salesperson made a reference
to the “list price.” However, he concedes this recollection may be based on what other people told
him concerning their experiences at Twin Cities Harley-Davidson. Moreover, he did not recall
any statements that “list price” meant the Manufacturer’s Suggested Retail Price as opposed to
Twin Cities Harley-Davidson’s list price (Kinney Depo, pp. 37-38, Unger Aff., Exhibit 10).
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Unlike Claimant James Kinney, Claimant Terrance Carter does not base his claim on an
alleged reference to the “list price” or any other allegbd affirmative statement. Rather, Carter bases
his entitlement to MSRP on the fact that he was offered a motorcycle at MSRP on a prior occasion,
possibly as much as three years before putting his name on the waiting list. Specifically, Carter
bases his claim on the fact that when he placed his name on the waiting list, no one advised him his
motorcycle would not be MSRP (Carter Depo, pp. 28-29, Unger Aff., Exhibit 11).
Unlike Claimants Kinney and Carter, Claimant Daniel Lund does allege a salesperson told
him he would pay MSRP (Lund depo, p. 24, Unger Aff., Exhibit 12). However, Lund’s claim
involves separate and unique accord and satisfaction issues. Lund concedes he learned his price
would be over MSRP before taking possession of his motorcycle. After discovering this fact, Lund
negotiated a resolution with Twin Cities Harley-Davidson whereby he traded in his existing
motorcycle for an agreed upon price and also accepted a $250 Twin Cities Harl Davidson gift
%
certificate (Lund Depo., pp. 41-42, Unger Aff., Exhibit 12). In addition to the unique accord and
satisfaction issues, Lund’s claims are also atypical and require separate consideration because he
failed to properly opt out of the class settlement. Specifically, Lund admitted he received a notice
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