I received this in my inbox tonight. Most likely most of you who have shopped at GameStop or have an account with their website also received this notice as well (in California). This appears to be the proposed legal documents towards GameStop’s policy on Used copies of a game that included free DLC for New copies of games.
THIS IS A NOTICE OF A PROPOSED CLASS ACTION SETTLEMENT
FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
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JAMES COLLINS, MATTHEW PROCTOR, and DANOBY ORTIZ, individually, and on behalf of other members of the general public similarly situated,
Plaintiffs,
vs.
GAMESTOP CORP., a Delaware corporation, et al.,
Defendants.
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Case No. 3:10-cv-01210-TEH
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NOTICE OF CLASS ACTION, PROPOSED SETTLEMENT AGREEMENT,
AND SETTLEMENT HEARING
IF YOU ARE A CALIFORNIA RESIDENT WHO PURCHASED A USED VIDEO GAME FROM GAMESTOP CORP. OR ANY OF ITS SUBSIDIARIES OR AFFILIATED COMPANIES BETWEEN MARCH 23, 2006 THROUGH APRIL 9, 2012 THAT OFFERED FREE DOWNLOADABLE CONTENT TO PURCHASERS OF A NEW COPY OF THE GAME AND SUCH DOWNLOADABLE CONTENT WAS NOT AVAILABLE TO YOU WITHOUT ADDITIONAL PAYMENT, YOU MAY BE ENTITLED TO MONETARY RECOVERY, AND A PROPOSED CLASS ACTION SETTLEMENT MAY AFFECT YOUR RIGHTS.
A federal court has authorized this Notice.
This is not a solicitation from a lawyer.
Please read this Notice carefully and fully. This Notice describes a proposed settlement and related matters, including the procedure for seeking a remedy as part of the proposed settlement.
This Notice is intended to inform you about the terms of a proposed settlement (the “Settlement”) of a pending legal action and your rights in connection with this Settlement. This Notice describes the steps you must take to be eligible to receive a remedy if this Settlement is finally approved by the Court. If you do not wish to be part of the class, this Notice details the steps you must take to be excluded from the class.
There is now pending in the United States District Court for the Northern District of California (“Court”) a lawsuit entitled James Collins et al. v. GameStop Corp. et al., Case No. 3:10-cv-01210-TEH that involves allegations that GameStop Corp. and certain alleged subsidiaries (“GameStop”) failed to adequately warn consumers that although certain downloadable content (“DLC”) may have been available on certain games when purchased new, such content may not have been available when the same game was sold used by GameStop unless consumers paid an additional fee. GameStop has denied and continues to deny any liability, and there has been no finding that GameStop have violated any laws.
THE CLASS
A proposed class action settlement (the “Settlement”) could affect your legal rights if:
(a) You purchased a qualifying used game from GameStop that included an offer of DLC or online features when new;
(b) You were a California resident at the time that you purchased the used game;
(c) At the time of your purchase, you understood and expected that the used game would include access to unexpired and available DLC or online features without additional purchase;
(d) You have not received a refund or access to DLC or online features from GameStop;
(e) You subscribed to or had readily available access to the necessary third party services (such as Xbox Live or the PlayStation Network) at the appropriate levels that were required in order to obtain the DLC or online features; and
(f) You did not return the used game for the full purchase price (the “Settlement Class”).
If you qualify to be in the Settlement Class, you are a Class Member and may be entitled to payment of money.
THE SETTLEMENT
GameStop has denied liability and disputes all allegations and claims set forth in the Complaint, and the Court did not make a determination of that issue. Plaintiffs and GameStop, however, have nonetheless decided to negotiate a settlement of this action in order to avoid the burden, expense and uncertainty of further litigation. Without admitting liability, GameStop has agreed to make restitution available to Class Members and institute warnings in its stores and on its website to settle the case. The Court has reviewed the Settlement and has given it preliminary approval. Before deciding whether to grant final approval to the Settlement, the Court wishes to inform you of the general terms of the Settlement, what actions you need to take to participate in the remedies provided for in the Settlement, and your rights to opt-out of the Settlement or to object to the Settlement, if you would like to do so.
The Court has allowed the following Class to assert claims for monetary relief:
All residents of California who purchased a used video game from GameStop at any time between March 23, 2006 through April 9, 2012that offered free downloadable content to purchasers of a new copy of the game and such downloadable content was not available to used game purchasers without additional payment.
If you fit the above definition, then you are a Class Member. This Notice will explain the terms of the Settlement to be presented to the Court for final approval. Subject to final approval of the Settlement by the Court, each member of the Settlement Class who does not request exclusion from the class and who submits a valid Claim Form as described below shall be entitled to one of the following forms of compensation: (1) a $10 payment, and a $5 store credit; or (2) a $5 payment, and a $10 store credit.
If the Court grants final approval to the Settlement, the changes to be made to the Company’s policies and practices, known as “injunctive relief” will apply to all Class Members, including those that opt-out of the monetary relief portion of the Settlement. It is not possible to opt-out of the injunctive relief portion of the Settlement.
HOW TO MAKE A CLAIM
If, after reviewing the terms of the Settlement, you would like to participate in the Settlement by making a claim for monetary relief, then you must fill out and submit the Claim Form, which is available on the Internet at the following web address:
www.gamestopsettlement.com no later than July 19, 2012.
TO EXCLUDE YOURSELF FROM THE SETTLEMENT
If you want to opt-out of this class action Settlement and not receive any monetary relief through this Settlement, or you want to object to the Settlement before the Court, this Notice will describe the procedures to do so. You may not opt-out of the injunctive relief provisions of the Settlement.
TO OBTAIN ADDITIONAL INFORMATION
The full terms of the Settlement are in the Settlement Agreement and Release on file with the Clerk of the Court. The Settlement Agreement and Release shall govern where there is any conflict between it and this Notice.
NOTICE OF COURT HEARING
The Court will hold a Settlement Hearing to consider whether the Settlement is fair, reasonable, and adequate, and to decide whether to give final approval to this Settlement. The hearing will be held at 10:00 a.m. on September 17, 2012, in the courtroom of the. Honorable Thelton E. Henderson at the United States District Court for the Northern District of California, Courtroom 12, U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102. If the Settlement is granted final approval by the Court after the Settlement Hearing, the Court’s judgment will be final and binding.
You are not required to appear at the hearing. If you are a Class Member, you will be represented by attorneys for the Class at no cost to you. If you wish to opt-out of the monetary relief settlement class, you must submit a request to opt-out in writing, but you do not need to appear at the hearing. If you wish to object to the Settlement, you must submit a written objection. Those who wish to object to the Settlement may present their objection in writing only, or may, in addition to a written objection, appear and be heard by the Court, either by yourself or, at your own expense, with an attorney of your choice.
· If you wish to remain a Class Member and to have an opportunity to receive the monetary relief described herein, you must return the Claim Form postmarked no later than July 19, 2012.
· If you wish to opt-out and exclude yourself from the monetary relief described herein, your opt-out request must be received by July 2, 2012.
· If you wish to object to the Settlement, your objection must be delivered to the Claims Administrator or mailed by July 16, 2012.
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YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
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Submit a Claim Form
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The only way to be eligible to receive money from the Settlement.
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Do Nothing
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Stay in this lawsuit. Receive no money from the Settlement. Give Up Certain Rights. By doing nothing, you will not receive any money as part of the Settlement, and you give up any right to pursue claims against GameStop that are related to the claims covered by the Settlement.
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Ask to Be Excluded
(Opt-Out)
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Opt out of the Settlement’s monetary relief provisions (opt-out). Receive no money from the Settlement. Keep any rights you might have to pursue monetary claims against GameStop separately. If you ask to be excluded from the monetary relief of the Settlement, you will not be eligible to receive any money from the Settlement, but you keep any rights you might have to pursue separately claims against GameStop that may be related to the legal and factual claims covered by this Settlement.
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Object
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Write to the Court about why you don’t think the Settlement is fair to the class. You may object to the Settlement whether or not you submit a Claim Form. Such an objection would be sent to Class Counsel as described below.
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Go to the Hearing
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Ask to speak in Court about the fairness of the Settlement. To do so, you must also object in writing and submit such objections to Class Counsel as described below.
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ADDITIONAL DETAILS
Purpose of this Notice
The purpose of this Notice is to inform you about this litigation, the certification of a class, as defined above, the terms of the proposed Settlement, and your rights in connection with a hearing to be held before the Court on September 17, 2012, to consider the fairness, reasonableness, and adequacy of the Settlement and related matters. This Notice also describes the steps to be taken by those who wish to be excluded from the Class and, for those who remain Class members, the steps necessary to receive a monetary remedy in the event the Settlement is approved by the Court.
Background: About the Lawsuit
Plaintiffs Collins, Proctor and Ortiz each allegedly purchased a different used video games at separate GameStop retail stores. Each knew that the games were being sold as “used,” and they paid approximately $5 less than the full retail price for them. The games purchased by Plaintiffs Collins, Proctor and Ortiz allegedly did not have certain downloadable content that was available without additional purchase when the games were sold as new. This additional downloadable content, which is not available on all new video games, will often offer some additional game play in connection with the online gaming experience. These extras can be unlocked and downloaded by entering a use code. This additional downloadable content is not needed for the game to work, and GameStop would have permitted any Class member to return a game within seven days of purchase for a full refund. Still, Plaintiffs Collins, Proctor and Ortiz claim to have expected to have been entitled to this free downloadable content but did not discover that it was not available on their used game without additional purchase until after the seven day refund period had expired.
GameStop denies that it has done anything wrong with regards to the claims made by Plaintiffs Collins, Proctor and Ortiz. Rather, GameStop contends that Plaintiffs received a discount when they purchased the video games used and that there was adequate notice such that Plaintiffs either did know or should have known that extra downloadable content on used games, as opposed to new games, may require an additional purchase in the form usually of a one-time use code. Further, GameStop maintains that the vast majority of the Class as it is defined here would not have expected the extra downloadable content on their used game for free and many could not or would not have used it even if it were available to them. Finally, GameStop contends that consumers had an adequate remedy here, specifically, the return of the used product within seven days in exchange for a full refund.
This Notice should not be regarded as an expression of any opinion by the Court on the merits of any claims or defenses of the Parties. No trial has occurred. There has been no finding or determination by the Court that GameStop has violated any law or obligation, or that, in the event that the Settlement does not become effective, a recovery could or could not be made by the Plaintiffs or other members of the Class. Because the Plaintiffs and GameStop together came to the Court to ask that the Court approve the Settlement that the two sides agreed to, the Court will simply examine the Settlement Agreement to determine whether or not it is fair, adequate and reasonable.
Class Definition—You are Part of the Class
You are a member of the Class affected by the Settlement if you fit within this definition:
All residents of California who purchased a used video game from GameStop at any time between March 23, 2006 through April 9, 2012 that offered free downloadable content to purchasers of a new copy of the game and such downloadable content was not available to used game purchasers without additional payment.
If you received this Notice through an email or regular mail addressed to you, then GameStop’s records show that you purchased a used game that had free downloadable content only when the game was purchased new.
Do I Have to Be Part of this Lawsuit?
You may exclude yourself from, or “opt-out” of, the monetary relief offered as part of this Settlement. If you do so, you will not be required to give up any legal rights that you would otherwise have to sue GameStop individually, but you will not receive any of the monetary relief related to this Settlement. Information about how to opt-out is included below. You may not exclude yourself from the injunctive relief provisions of the Settlement. If the Court approves the Settlement, you will be bound by the injunctive relief provisions of the Settlement even if you opt-out of the monetary relief portion of the Settlement.
Summary Of Settlement Terms
What Are the Terms of the Settlement?
The Settlement has two monetary relief options and establishes certain injunctive relief.
Specifically, GameStop will provide class members (herein referred to as “Claimants”) with two options for obtaining restitution:
o Option 1: Claimants can elect to receive a $10 payment and a $5 GameStop store credit towards the purchase of a used product of any kind, good for 180 days from the date of issuance, provided that the Claimant provides proof of purchase or provided that proof of purchase is verifiable through GameStop’s records. In addition, Claimants who elect Option 1 must also provide information regarding (1) the name of the service he or she used to access the necessary third party services (such as Xbox Live or PlayStation Network); (2) his or her user name or gamer tag; and (3) the location of his or her purchase.
o Option 2: Claimants can elect to receive a $5 payment and a $10 GameStop store credit towards the purchase of a used product of any kind, good for 180 days from the date of issuance, without providing proof of purchase. In addition, Claimants who elect Option 2 must also provide information regarding (1) the name of the service he or she used to access the necessary third party services (such as Xbox Live or PlayStation Network) and (2) the location of his or her purchase.
UNDER PENALTY OF PERJURY,Claimants under either option will have to sign the Claim Form verifying the information each provides therein. Additionally, each Claimant shall have the right to receive payment and/or store credit only once, regardless of how many games he or she purchased and may elect only Option 1 or Option 2 outlined above, but not both.
GameStop has also agreed to the following injunctive relief:
o For a period of two years, GameStop will post “shelf talkers” in the used game sections of its California stores advising consumers that certain downloadable content and online features may require an additional purchase.
o For a period of two years, GameStop will in its California stores include in its “counter mats” the same disclosure language that is required on its “shelf talkers.”
o GameStop will include a disclaimer on its website for a period of two years
If you desire to the see the complete version of the Settlement Agreement that was reached between the Plaintiffs and GameStop, you may obtain a copy from the Clerk of the Court as noted above.
Settlement Hearing
The hearing will be held at 10:00 a.m. on September 17, 2012, in the courtroom of the. Honorable Thelton E. Henderson at the United States District Court for the Northern District of California, Courtroom 12, U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102. At this hearing, the Court will determine whether the proposed Settlement is fair, reasonable, and adequate and whether it should be approved. The Court will also consider whether the motion of the Plaintiffs’ attorneys, or “Class Counsel,” for an award of attorneys’ fees and expenses should be approved, and whether, in accordance with the Settlement, an order and judgment should be entered bringing the litigation to a conclusion.
How to Proceed: Your Options
After reviewing the terms of the Settlement set forth in this Notice, you have three options. You must decide at this stage whether you want to: (A) remain a Class Member with respect to the monetary relief portion of the Settlement and retain an opportunity to receive such monetary remedy; or (B) opt-out and exclude yourself from sharing in the monetary relief portion of the Settlement.; or (C) object to the Settlement at the Settlement Hearing.
A. Remain a Class Member
If you do not request to be excluded, you will remain a part of the Class. The Court will hold the Settlement Hearing and you, as a Class Member, will be represented by Class Counsel at no cost to you. In order to be eligible to receive the monetary remedy approved as part of this Settlement, you must also fill out the Claim Form fully and completely and return it to the Claims Administrator postmarked by no later than July 19, 2012. If you are a Class Member and you file a valid and timely Claim Form, you may be eligible to obtain money from this Settlement. The Claim Form asks for information about your purchase of used video games from GameStop.One you have submitted a Claim Form, you will not have a right to present any further information concerning your particular situation.
B. Opt-Out: How Do I Exclude Myself from the Settlement?
You may request to opt-out, or be excluded, from the monetary relief portion of the Settlement class. If you opt-out, you will not be eligible for any monetary award as part of this Settlement. Any Class Member who wishes to opt-out must provide notice in writing addressed to GameStop Claims Administrator, P.O. Box 8090, San Rafael, CA 94912-8090 and must be received by July 2, 2012.
You may not opt-out of the injunctive relief provisions of the Settlement.
To be effective, this opt out statement must contain each of the following:
(a) your name, current address and telephone number;
(b) the name and number of this case (James Collins et al. v. GameStop Corp. et al. (N.D.Cal. Case No. CV-10-1210-TEH));
(c) a statement that you wish to be excluded from the monetary relief provisions of the Settlement, including the following language, which must be contained in your request:
“I understand that, by this request to be excluded from the monetary settlement in this case, I am foregoing all monetary benefits from this Settlement. I understand that I may bring a separate legal action seeking damages, but might receive nothing or less than what I would have received if I had filed a claim under the class monetary settlement procedure in this case. I also understand that I may not seek exclusion from the class for injunctive relief and that I am bound by the injunctive provisions of the Settlement Agreement.”
Please note that Class Members who submit timely and valid requests for exclusion will have no right to object to the Settlement in court and will no longer be represented by Class Counsel.
C. Object to the Settlement
The Court must assess the overall fairness and reasonableness of the Settlement to the Class. Class Members whohave not opted-out of the monetary relief portion of the Settlement may object to the Settlement. If you opt-out of themonetary relief portion of the Settlement, as described immediately above in Section B., you may not object to the Settlement.
In order to speak at the Settlement Hearing, or have your objection to the Settlement considered by the Court, you must submit a written objection to the Settlement that includes (i) a written notice regarding whether you intend to appear; (ii) a detailed statement of your objection to any matter before the Court; and (iii) the grounds for your objection or the reasons why you want to appear and be heard. You should also submit all documents and writings that you want the Court to consider. This statement must be signed, and must include the name and number of this case (Collins et al. v. GameStop, Corp. et al. (N.D.Cal. Case No. CV-10-1210-THE)). This statement must be postmarked on or before July 16, 2012, and sent to: the GameStop Claims Administrator, P.O. Box 8090, San Rafael, CA 94912-8090.
You need not appear at the Settlement Hearing for your written comments or objections to be considered by the Court, but you may appear if you so desire. You may also retain at your own expense an attorney who must file and serve a notice of appearance with the Court before the Settlement Hearing.
Please note that no one may appear at the Settlement Hearing for the purpose of objecting to the Settlement without first having served objections in writing as described above. Objections raised at the Settlement Hearing will be limited to those previously submitted in writing.
Release
If the Court grants final approval of the Settlement, then all Class Members who do not opt out will release GameStop for all “Released Claims.” Released Claims are defined in the Settlement Agreement to be any and all claims, causes of action, or liabilities, whether arising under local, state, or federal law, whether by statute, regulation, contract, common law, equity or otherwise, whether known or unknown, that could have been alleged based upon the facts asserted in the Complaint as to the Released Party. When claims are “released,” that means that a person who releases GameStop cannot later sue GameStop for any of the claims that are covered by the release. Unless you opt out of the lawsuit, you will be covered by the release, even if you do not submit a Claim Form for money damages.
The exact terms of the Release are defined in the Settlement Agreement, which can be obtained from the Clerk of the Court. Key terms of the Release include:
Release of Released Claims. Effective upon the date that the Final Approval Order and Judgment become Final, the Releasors hereby release, discharge, and dismiss with prejudice the Released Parties of and from any and all Released Claims. The Releasors and each of them agree and covenant not to sue or prosecute, institute or cooperate in the institution, commencement, filing, or prosecution of any suit against any Released Parties on the basis of any Released Claims.
Waivers of California Civil Code Section 1542. As of the Effective Date of the Agreement, Plaintiffs and each member of the Settlement Class, their respective heirs, executors, administrators, agents, attorneys, partners, successors, predecessors-in-interest, assigns and all persons acting for or on their behalf, shall be deemed to have fully, finally and forever released all claims, causes of action, or liabilities, whether arising under local, state, or federal law, whether by statute, regulation, contract, common law, equity or otherwise, whether known or unknown, suspected or unsuspected, asserted or unasserted, foreseen or unforeseen, actual or contingent, liquidated or unliquidated, as alleged or as could have been alleged based upon the facts asserted in the Complaint as to the Released Party. Without limiting the foregoing, the Released Claims specifically extend to claims that Settlement Class members do not know or suspect to exist in their favor at the time that the settlement, and the releases contained therein, becomes effective.
This paragraph constitutes a waiver of Section 1542 of the California Civil Code and any similar or comparable provisions, rights and benefits conferred by the law of any state or territory of the United States or any jurisdiction, and any principle of common law which provide:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Plaintiffs and each Settlement Class Member understand and acknowledge the significance of these waivers of California Civil Code Section 1542 and/or of any other applicable law relating to limitations on releases. In connection with such waivers and relinquishment, Plaintiffs and each Settlement Class Member acknowledge that they are aware that they may hereafter discover facts in addition to, or different from, the facts which they now know or believe to be true with respect to the subject matter of the settlement, but that they release fully, finally and forever all Released Claims, and in furtherance of such intention, the release will remain in effect notwithstanding the discovery or existence of any such additional or different facts.
The Lawyers Representing You and the Class
As a Class Member, you are represented in this litigation by
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Roland Tellis
Mark Pifko
Baron & Budd P.C.
1999 Avenue of the Stars, Suite 3450
Los Angeles, CA 90067
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Gene Williams
Initiative Legal Group APC
1800 Century Park East, 2nd Floor
Los Angeles, CA 90067
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Unless you elect to exclude yourself from the Settlement, you will continue to be represented by Class Counsel in connection with implementation and monitoring of the Settlement throughout the duration of the terms of the Settlement at no cost to you. Although it is not necessary, you may, if you wish to do so, retain your own attorney at your own expense.
How Will The Lawyers Be Paid?
In connection with the Settlement, the Court will award Class Counsel reasonable attorneys’ fees and expenses. Under the terms of the Settlement, Class Counsel agree that they will not seek more than a cumulative total of $250,000 in fees and costs, and GameStop will not object to a request for attorneys’ fees and costs in an amount of up to and including $250,000. If you are a Class Member and receive a monetary award as part of the Settlement, you will not owe any fees or expenses to the lawyers who have represented you as part of the Class. The attorneys’ fees and expenses of Class Counsel, as awarded by the Court, will be paid only if and after the Settlement has been approved by the Court.
Class Counsel has pursued these claims on behalf of Plaintiffs and the Class without receiving any compensation for their services or reimbursement of their out-of-pocket expenses. They have done so with the understanding that if they obtained a recovery for the class, their expenses would be reimbursed and they would receive fees for their efforts.
Service Payments to Named PlaintiffsClass Counsel will apply for service payments to the three Named Plaintiffs of $2,000 each to compensate them for the time and effort they devoted to representing the class in this case, including the time they spent consulting with class counsel about the case.
Getting More Information
If you have further questions or are still not sure whether you are included, you can call the Claims Administrator toll free at
866-271-9150 M-F between the hours of 7am and 5pm PST or write to the Claims Administrator at the address listed above.
This Notice contains only a summary of the terms of the Settlement, the provisions of the releases and related matters. For further information, the Settlement Agreement (which includes the complete terms of the Settlement), the Claim Form, the Release, and numerous other documents connected with the Settlement are available from the Court Clerk at the address below. In addition, the settlement documents and other orders that the Court may issue from time to time regarding the administration of the Settlement will also be on file with the Court in the Office of the Clerk of the United States District Court, Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102.
Again, the important deadlines are:
Last Day To Submit A Claim Form: July 19, 2012
Last Day To “Opt Out” Of The Settlement Class: July 2, 2012
Last Day To Object To The Settlement: July 16, 2012
PLEASE DO NOT CALL OR CONTACT THE COURT OR GAMESTOP WITH QUESTIONS REGARDING THIS NOTICE.
