HEY WMC, The Buy.com Class action was decided yesterday

[locutus4]

In that letter i got from the CA courts about buy.com VS. whoever that guy was that sued, it said the final hearings would be on Dec. 1 for the courts to approve the settlement and decide how much all of us get. Does anyone have any word on what happened?

 

[FlashG]

They sent me an e-mail on Oct 12. Maybe that's how we will get notified.



SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE

HANK BARBER, et.al. ] Case Number 806372
vs. ] Class Action
BUY.COM INC. ]
___________________________]

NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT

THIS NOTICE MAY AFFECT YOUR RIGHTS --- PLEASE READ IT CAREFULLY

If you are a consumer who, during the period February 5, 1999, through and
including February 8, 1999, purchased or attempted to purchase a Hitachi
Superscan 753 computer monitor from Buy.com Inc. for $164.50 and who have
been unable to do so because Buy.com, Inc. refused to provide the product
in question at that price, you may be a member of the Settlement Class
described herein.

THIS NOTICE IS NOT AN EXPRESSION BY THE COURT OF AN OPINION CONCERNING THE
MERITS OF ANY CLAIM OR DEFENSE OR THE TRUTH OF ANY OF THE ALLEGATIONS OF
THE PARTIES

Introduction
1. On or about March 4, 1999, the plaintiffs in this matter filed a
proposed class action lawsuit against defendant Buy.com. The lawsuit
alleged that the defendant had offered items for sale on its Website at a
substantially reduced price, and then had refused to consummate sales at
the price indicated. In particular, it was alleged that a Hitachi
Superscan 753 computer monitor was for sale at $164.50 for a three day
period and that the defendant refused to sell that item for that price.
In the alternative, the plaintiffs alleged that if the posting of the
$164.50 price was an error, the error amounted to negligence in that the
defendant did not have sufficient safeguards in place to discover an
inaccuracy in pricing.
2. Buy.com denied and continues to deny all of the allegations in the
complaint. Specifically, Buy.com contends that the listing of the Hitachi
Superscan monitor at a price of $164.50 was a data entry error, and that
the intended price was $564.50. Buy.com further contends that the error
was not the result of negligence in that it had sufficient safeguards in
place, and this inaccuracy was the result of a clerical error in
incorrectly reviewing a printed price report.

Class Certification
3. On September 22, 2000, the court granted preliminary approval of
an opt-out class comprised of consumers as described above pursuant to
California Civil Code section 382 and the California Consumers Legal
Remedies Act. An opt-out settlement means that individuals who do not
wish to participate in the settlement process and share in the settlement
proceeds may remove themselves from the action and proceed on their own to
seek legal redress if they so desire. Any person who elects to opt-out of
this settlement will not share in the settlement proceeds.
a. The distribution of settlement proceeds to individual claimants
will begin once the settlement is approved and final. If you wish to
object to this settlement, you must follow the procedures described in
paragraphs 11 and 12 below, by the objection postmark deadline.

Terms of the Settlement
4. Class counsel and counsel for Buy.com have reached a proposed
settlement which has obtained preliminary approval of the Court. The
proposed settlement provides for payment of the sum of five hundred
seventy five thousand dollars ($575,000) to a settlement fund. In
addition, Buy.com has agreed to maintain improved operating procedures to
(1) reduce the risk of inadvertent pricing errors; (2) improve its
customer service department; and (3) reduce the possibility that any
customer might misconstrue an acknowledgment of order from Buy.com to be
an acceptance of contract. These modifications include, but are not
limited to, additional verification of pricing changes, better
accessibility of management to sales and order reports, new billing
procedures, and changes in the Company's form acknowledgment of receipt of
order and form Terms and Conditions. Defendant shall maintain these
policies in effect while offering merchandise and/or services for sale on
the Internet to the general public. Defendant may change such policies in
response to changing market conditions or for any other reason without
notice or leave of Court provided that any policy change, deletion, or
addition results in better procedures for achieving the three goals set
forth in this paragraph than existed as of February 5, 1999.
5. In exchange for the monetary payment to the settlement fund and
the agreement to modify its operating procedures, all members of the class
who do not opt-out of the settlement shall release and shall conclusively
be deemed to have given full general releases of Buy.com and its
employees, representatives, administrators, attorneys, and insurers
contributing to the settlement (in their capacity as insurers for
Buy.com), lenders, shareholders, officers, directors, divisions,
affiliates, partnerships, partners, parent and/or subsidiary corporations,
assigns, heirs and successors in interest and each of them, from any and
all claims, demands and causes of action arising out of, connected with or
incidental to the subject matter set forth in the class action lawsuit or
any other complaint wherever and whenever filed. This release includes a
waiver of the provisions, rights, and benefits of California Civil Code
section 1542 and any similar, comparable, or equivalent law of any state
or territory of the United States or principle of common law. In that
regard, all members of the class who do not opt-out of the settlement
waive California Civil Code section 1542, which states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR
AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY
HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR
Members of the class should understand that the facts for which
this release are given may hereafter turn out to be other than or
different from the facts now believed to be true, but that nonetheless,
each member of the class who does not opt-out of the settlement accepts
and assumes such risk and agrees that this release shall be and remain in
all respects effective and not subject to termination or rescission by
virtue of any such difference in facts.
This settlement is the result of extensive negotiations between
counsel after Class Counsel engaged in substantial investigation, document
review and discovery. Settlement discussions were supervised by the Hon.
Barnett Cooperman (Ret.).
6. The amount each class member will receive is not known at this
time. It will depend upon several items, including the number of class
members who opt-out of the settlement. The settlement fund, less
Court-approved attorneys' fees, costs, expenses and reimbursements, shall
be equally divided among class members. Each class member shall receive
one share of the fund, regardless of the number of monitors a class member
attempted to purchase.

If you do not opt-out of the settlement, your share of the settlement
proceeds will be mailed to the billing address you gave for the credit
card you used in attempting to purchase a Hitachi monitor from Buy.com.
NO CLAIM FORM OR OTHER ACTION ON YOUR PART IS NECESSARY.

If your mailing address has changed since February 8, 1999, you must send
an e-mail to settlementadmin@marlinsaltzman.com. Your e-mail must contain
your name, former mailing address and new mailing address.


Class Counsel a nd Class Representatives
7. The court has appointed the following Class Counsel: Louis M.
Marlin of Marlin & Saltzman, 203 N. Golden Circle Drive, Suite 310, Santa
Ana, CA; and Gary Sodikoff, Attorney at Law, 219 E. Washington Avenue,
Santa Ana, CA 92701. The Court certified the following Class
Representatives to represent the settlement class; Hank Barber, Quoc
Thai, Daniel Billeci, Dale Magner, Ping Kwong and Maryam Al-Dhalimy.
8. Class counsel believe that class members are best served by
participating in the proposed settlement. Plaintiffs' Counsels'
investigation and analysis has lead them to the conclusion that the
settlement is in the best interest of the class.
9. All petitions for attorneys' fees and expenses are subject to
Court approval. In this case, Class Counsel will apply to the court for
reimbursement of their actual out of pocket costs, and an award of
attorneys' fees in the sum of $190,000.
10. All class members have the right to comment in support of, or in
opposition to, the above-referenced application for attorneys' fees and
costs. In order to do so, you must follow the procedure described below.

The Settlement Approval Process
11. A final settlement approval hearing will be held on December 1,
2000 at the hour of 1:30 p.m., in Department C-67 of the Orange County
Superior Court located at 909 N. Main Street, Santa Ana, California 92702,
before the Hon. Robert Thomas. At that time, the court will consider
evidence and argument regarding the fairness, adequacy and reasonableness
of the settlement so the court can determine whether to grant it final
approval; and the amount of any award of attorneys' fees and costs to
plaintiffs' counsel. Class members are entitled, but not required to
attend. Any member of the class who is satisfied with the proposed
settlement need not appear at the hearing to recover settlement proceeds.
12. At the final settlement approval hearing, any member of the Class
may appear in person or through counsel and be heard to the extent allowed
by the court in support of, or in opposition to, the fairness,
reasonableness and adequacy of the proposed settlement. However, no party
will be heard in opposition to the proposed settlement and no briefs or
papers submitted by any such party will be considered unless, at least 10
days prior to the date of the final settlement approval hearing, such
person(s): (a) files with the Clerk of the Orange county Superior Court,
700 Civic Center Drive West, Santa Ana, California, a statement that
indicates a basis for such opposition and (b) serves copies thereof (and
any other papers or briefs it files) with the court, and in person or by
mail upon each of the following:

Attorneys for the Class Attorneys
for Buy.com
Louis M. Marlin, Esq. Michael T.
Hornak, Esq.
Marlin & Saltzman
Rutan & Tucker
203 N. Golden Circle, Suite 310 611 Anton
Blvd., Suite 1400
Santa Ana, CA 92705
Costa Mesa, CA 92626

The Opt-Out Procedure
13. You may elect not to participate in this settlement. If you so
elect, you will not receive any portion of the settlement proceeds and you
will not be bound in any way by the settlement. If you elect to opt-out
of the settlement, you are free to pursue any claim you believe you have
against the defendant on your own. Class Counsel will have no obligation
to assist you in that regard. If you wish to opt-out of the settlement,
you must send an e-mail to settlementadmin@marlinsaltzman.com on or before
November 21, 2000. The e-mail must contain your name and must state, "I
HEREBY STATE THAT IT IS MY WISH TO OPT-OUT OF THE BUY.COM SETTLEMENT."

Additional Matters
14. As a member of the Class, you may communicate with, seek the
advice of, or enter an appearance through counsel of your own choice. Any
member of the class who does not enter an appearance either individually
or through counsel of his/her own choice will be represented by Class
Counsel, who are proponents of the settlement, and will have no individual
liability for attorneys' fees and costs, both of which are payable from
the Settlement fund.
15. If the settlement does not receive final approval by the court,
the case will continue to be prepared for trial.
16. This Notice summarizes the basic terms of the settlement. For
more detailed information you may review and copy the pleadings, records
and other papers on file at the Superior Court Clerks office at 700 Civic
Center Drive, West, Santa Ana, California during regular business hours.
You may also seek additional information from Class Counsel.

PLEASE DO NOT ADDRESS QUESTIONS OR REQUESTS FOR INFORMATION TO THE
COURT



Dated: September 22, 2000 __/s/ Robert
Thomas____
Robert
Thomas
Judge of the
Superior Court

 

[Harvey]

Hmmm... Here it is, quarter to 2001, and the settlement is finally coming through. I really believe that BC was very much in the wrong in this particular case.

I was active in that discussion, and at the time, I posted that anyone who had kept good documentation of the transcation had better shot by taking their case to their local Small Claims court. While those who joined the class action were waiting, almost everyone who actually filed a Small Claims action got a settlement from BC many months ago.

The real up side is that this case forced Buy.com to change their policies, and they became a more responsible company for it. They now charge the buyers card when goods are shipped, not when the order is placed (and backordered), and they have become much better about honoring their posted prices. I suspect that they pay a lot more attention to what they post before they post it, now. It's too bad their stock is in the dumper, but, like Amazon, they're finding out you can't sell below cost and make it up in volume (to quote the old joke).

I'm glad for all of you who slugged it out. You were right, you stuck up for yourslef, and you won. I'm even happier that I followed my own advice.

 

[Raspewtin]

<< I really believe that BC was very much in the wrong in this particular case. >>




What exactly happened in this particular case? Did they charge for an item and not honor the original price?

Nvrmind, read Flash's letter




<< but, like Amazon, they're finding out you can't sell below cost and make it up in volume >>




good thing someone is finally learning this lesson. This dumb strategy used to bug me immensly, especially when stockholders showed extraordinary confidence in such thinking.