NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT
TO: ALL PERSONS WHO PURCHASED SOFTWARE FOR VIDEO GAME CONSOLES FROM A STORE IN THE UNITED STATES OR ITS TERRITORIES OPERATING UNDER THE TRADENAMES OF GAMESTOP, BABBAGE’S, SOFTWARE, ETC., PLANET X, PLANET COMICS, SUPR SOFTWARE, SOFTWARE PLUS, SUPER SOFTWARE AND GAMESTOP.COM (BUT NOT THAT OR THOSE E-COMMERCE RELATED INTERNET WEB SITES LOCATED AT, WWW.GAMESTOP.COM.) (COLLECTIVELY “BABBAGES TRADENAMES”) FROM APRIL 12, 1998 THROUGH AUGUST 1, 2003, FROM A STORE OPERATING UNDER THE TRADENAME OF FUNCOLAND (“FUNCO TRADENAME”) FROM JUNE 15, 2000 THROUGH AUGUST 1, 2003, OR FROM THAT OR THOSE E-COMMERCE RELATED INTERNET WEB SITES LOCATED AT WWW.GAMESTOP.COM (“DEFENDANTS’ WEBSITE”) FROM APRIL 12, 1998 THROUGH JULY 1, 2002. IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ THIS NOTICE CAREFULLY BECAUSE IT MAY AFFECT YOUR RIGHTS.
There is now pending in the San Francisco Superior Court an action entitled Jeffrey Coriell and Christopher Chavez v. GameStop Corp., GameStop.com Inc., Gamestop, Inc., Funco, Inc. and Babbages Etc. LLC, Civil Action No. CGC-02-406658 (the “Action”). This notice explains the nature of the Action and the general terms of a proposed settlement, and informs you of your legal rights and obligations.
WHAT THIS ACTION IS ABOUT
Plaintiffs in the Action filed a class action lawsuit against GameStop Corp., GameStop.com Inc., Gamestop, Inc., Funco, Inc. and Babbages Etc. LLC (collectively, “Defendants”) on behalf of the Class described above. The Complaint alleges that the Defendants sold software designed to be played on the Dreamcast, Game Boy, Game Boy Advance, Game Cube, Genesis, Nintendo, Nintendo 64, Playstation, Playstation 2, Super Nintendo, X Box, Sega CD, Sega Saturn, Sega Game Gear, 3DO and NeoGeo video game consoles (“Software for Video Game Consoles”) as if it were new when such software may have been purchased and returned by consumers under the Defendants’ return policies. The Complaint alleges the Defendants’ sale of this software resulted in violations of common law and statutory prohibitions against actual and constructive fraud and/or intentional deceit, misrepresentation, false advertising, unfair and deceptive trade practices, and violations of consumers’ legal remedies acts. Defendants deny any wrongdoing and all liability with respect to the claims asserted against them, and believe they have many legal defenses to all of the claims asserted by Plaintiffs. Defendants believe that the Software for Video Game Consoles sold by them complied in all respects with the representations made concerning those products. However, the parties recognize and acknowledge the uncertainty, risks, difficulties, delays and expenses involved in litigation. Accordingly, the parties now mutually desire to reach a resolution of the allegations asserted in the Action and have negotiated a proposed settlement. Judge Donald S. Mitchell of the of San Francisco Superior Court has determined that this Action should proceed as a class action, for purposes of settlement only, with Jeffrey Coriell and Christopher Chavez (collectively, “Plaintiffs”) as the representatives of the Class, and has granted preliminary approval of the settlement, subject to a Settlement Hearing discussed below.
THE PROPOSED SETTLEMENT
THE PARTIES HAVE AGREED TO THE SETTLEMENT GENERALLY DESCRIBED BELOW. IF THE SETTLEMENT IS FINALLY APPROVED, YOU MAY BE ELIGIBLE TO RECEIVE THE FOLLOWING BENEFITS:
The Defendants have agreed to post a notice in their stores that states: “All software for video game consoles may have been used and returned in accordance with [store tradename]’s return policy.” (“Disclosure Statement”) They also agreed to provide a coupon (“Coupon”) to any Class Member who, before the claims deadline described below, presents an original receipt evidencing the purchase of new video games software designed to be operated on the following video games consoles: Dreamcast, Game Boy, Game Boy Advance, Game Cube, Genesis, Nintendo, Nintendo 64, Playstation, Playstation 2, Super Nintendo, X Box, Sega CD, Sega Saturn, Sega Game Gear, 3D0, and NeoGeo (“Software For Video Game Consoles”) from a retail location operating under one of the Babbages Tradenames from April 12, 1998 through August 1, 2003, under the Funco Tradename from June 15, 2000 through August 1, 2003, or from Defendants’ Website from April 12, 1998 through July 1, 2002 and signs a Claim Form declaring under penalty of perjury that such Class Member purchased new Software For Video Game Consoles from such retail location or online at Defendants’ Website during such time period. The Coupon may be redeemed at any of Defendants’ retail locations (but not on Defendants’ Website) to obtain a five (5) percent discount on the purchase price of any one piece of Software for Video Consoles then in stock at the retail location where the Class Member redeems the Coupon. (See the Claim Form for instructions on how to obtain the benefits described in this paragraph.)
CLAIMS DEADLINE AND DISMISSAL OF ACTION
In order to receive the Coupon, Class Members must complete and mail a pre-printed Claim Form, along with the original receipt described above, post-marked on or before November 1, 2003 to: Coriell Claims Administrator, P.O. Box 1521, Grapevine, Texas 76099-1521. Class Members may obtain a Claim Form by visiting any of Defendants’ retail stores. Further instructions for making your claim are listed on the Claim Form. Claim Forms post-marked after November 1, 2003 will not be honored. If the Court approves the proposed settlement, it will enter a judgment that will dismiss the Action on the merits and with prejudice as to all Class Members. All Class Members who do not validly and timely request to be excluded from the proposed settlement shall be forever barred from prosecuting their own lawsuits and shall be deemed to have released the Defendants and each of their past or present officers, directors, employees, agents, representatives, parents, subsidiaries, affiliates, and each of their predecessors, successors, heirs and assigns from any and all claims, rights, demands, actions, causes of action, suits, debts, liens, contracts, liabilities, agreements, costs, expenses or losses of any kind whatsoever that any Class Member has or may claim to have against such persons which are based upon, arising out of, or in any way relating to any of the acts, omissions or other conduct that has been alleged or could have been alleged or is otherwise referred to in the Action.
ATTORNEY’S FEES AND COSTS
Defendants have agreed to pay Plaintiffs’ Counsel $125,000 in attorney’s fees and costs.
FINAL SETTLEMENT HEARING
On September 22, 2003, at 1:30 p.m., a public hearing will be held before Judge Donald S. Mitchell in Department 602 of the San Francisco Superior Court, located at 400 McAllister Street, San Francisco, California to determine whether the proposed settlement is fair, reasonable and adequate (the “Settlement Hearing”). If you have no objection to the proposed settlement, you are not required to attend the Settlement Hearing. If you wish to object to the proposed settlement, you must follow the instructions set forth below.
WHAT YOU CAN DO
1. If you want to exclude yourself from both the class action and the settlement, you must submit a letter or postcard requesting exclusion post-marked no later than September 8, 2003, with your name, address, and telephone number, and the reason that you wish to be excluded. TO BE CONSIDERED VALID, A REQUEST FOR EXCLUSION MUST SET FORTH ALL OF THIS INFORMATION AND MUST BE TIMELY POST-MARKED. Your exclusion request must be sent to the Coriell Claims Administrator, at the following address:
Coriell Claims Administrator
P.O. Box 1521
Grapevine, Texas 76099-1521
If you timely and validly request exclusion from the Settlement Class, you will not receive any benefits from the proposed settlement and will not be bound by the judgment entered in the Action. In addition, you will not be precluded from otherwise prosecuting any individual claim, if timely, against the Defendants based on the transactions complained of in the Action.
2. If you want to remain a Class Member and have no objection to the settlement, you should fill out a Claim Form and submit it and your original receipt to the address on the Claim Form post-marked by November 1, 2003 (see individual Claim Form for details). You will receive the benefits of the settlement if it is approved.
3. If you wish to object to the settlement you must remain a member of the Settlement Class (do NOT request exclusion) and follow the procedures set forth below. If your objection is rejected you will be bound by the final judgment just as if you had not objected. You may appear at the Settlement Hearing scheduled for September 22, 2003 to show cause why the settlement should not be approved by the Court, provided that you have, by September 8, 2003, filed with the Court a written notice of your intention to appear, all supporting papers, and a statement under penalty of perjury that you are in fact a member of the Settlement Class, and have served such notice and papers upon counsel for Plaintiffs and counsel for Defendants at the following addresses:
Seth A. Safier, Esq.
THE LAW OFFICES OF SETH SAFIER
6467 California
San Francisco, California 94121
Counsel for Plaintifs Howard O. Boltz, Esq.
BRYAN CAVE LLP
120 Broadway, Suite 300
Santa Monica, California 90401
Counsel for Defendants
To be considered, your written objection and all supporting papers must be filed with the Court and delivered or post-marked to Plaintiffs’ counsel and Defendants’ counsel no later than September 8, 2003. CLASS MEMBERS WHO DO NOT TIMELY MAKE THEIR OBJECTIONS IN THIS MANNER WILL BE DEEMED TO HAVE WAIVED ALL OBJECTIONS AND SHALL NOT BE ENTITLED TO BE HEARD AT THE SETTLEMENT HEARING. You may, but need not, enter an appearance through counsel of your choice. If you do, you will be responsible for your personal attorney’s fees and costs. This description of the Action is general and does not cover all of the issues and proceedings thus far. In order to see the complete file including the individual terms of the settlement in the Action, you should visit the office of the Clerk of the Court in Department __ of the San Francisco Superior Court, located at 400 McAllister Street, San Francisco, California. The Clerk will make the file relating to this lawsuit available to you for inspection and copying at your own expense. DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT OR TO THE JUDGE. They are not permitted to answer your questions.
Dated: August 1st, 2003
By: Order of the San Francisco Superior Court
Donald S. Mitchell
JUDGE OF THE SUPERIOR COURT
source: http://www.gamestop.com/gs/help/classaction.asp
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