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STATES OF N.Y. & MD. v. NINTENDO OF AM.

October 17, 1991

STATES OF NEW YORK AND MARYLAND, STATE OF WEST VIRGINIA, STATE OF ALABAMA, STATE OF ALASKA, STATE OF ARIZONA, STATE OF ARKANSAS, STATE OF CALIFORNIA, STATE OF SOUTH CAROLINA, STATE OF COLORADO, STATE OF SOUTH DAKOTA, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF TENNESSEE, DISTRICT OF COLUMBIA, STATE OF FLORIDA, STATE OF GEORGIA, STATE OF TEXAS, STATE OF UTAH, STATE OF HAWAII, STATE OF IDAHO, STATE OF ILLINOIS, STATE OF VERMONT, STATE OF VIRGINIA, STATE OF WASHINGTON, STATE OF WISCONSIN, STATE OF WYOMING, STATE OF INDIANA, STATE OF NEVADA, STATE OF NEW HAMPSHIRE, STATE OF NEW JERSEY, STATE OF LOUISIANA, STATE OF NEW MEXICO, STATE OF NORTH CAROLINA, STATE OF IOWA, STATE OF NORTH DAKOTA, STATE OF OHIO, STATE OF OKLAHOMA, STATE OF OREGON, STATE OF PENNSYLVANIA, STATE OF KANSAS, STATE OF RHODE ISLAND, STATE OF MAINE, STATE OF KENTUCKY, STATE OF MASSACHUSETTS, STATE OF MICHIGAN, STATE OF MINNESOTA, STATE OF MISSISSIPPI, STATE OF MISSOURI, STATE OF MONTANA, STATE OF NEBRASKA, PLAINTIFFS,
v.
NINTENDO OF AMERICA, INC., DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

The plaintiffs, the Attorney Generals of the fifty States and the Corporation Counsel of the District of Columbia ("Attorney Generals"), and the defendant, Nintendo of America, Inc. ("Nintendo"), have moved for an Order granting final approval of the settlement agreements between the parties filed with this Court on or before June 20, 1991 ("Settlement Agreements"). A number of objections to the settlement and requests for additional notice have been received.

The requests for additional notice are denied. With respect to the substantive objections to the settlement, the settlement is fair, reasonable, and adequate, and the motion to approve the Settlement Agreements is granted.

The Parties

The Attorney Generals are plaintiffs parens patriae pursuant to 15 U.S.C. § 15c.

Susan Robbins, Julie Ellingson, Lane Christensen, Tami Hoshii and Virginia Nelson are all California residents and plaintiffs in a class antitrust action in California state court against Nintendo. Nolan M. Kennedy, Judy Brown, Iris A. Cooke, Julie Heaton, Dolores Dyer, Kim Kirchick, Helen Rakove, Arthur Farnsworth, III, Shirley Corbitt, Michael Mattos and Lenore Sollecito are all California residents and plaintiffs in a class antitrust action in the United States District Court for the Northern District of California. They are retail purchasers of Nintendo products that are the subject of the Settlement. Collectively, they will be referred to as the "California Plaintiffs."

Jeff Price, Christie Price and Linda Bentley are all Alabama residents and plaintiffs in a class antitrust action in Alabama state court against Nintendo. They are retail purchasers of Nintendo products that are the subject of the Settlement.

Nintendo is a corporation organized under the laws of the State of Washington with its principal place of business in Redmond, Washington. Nintendo, a maker of video games and equipment, is a wholly-owned subsidiary of Nintendo Co., Ltd., a corporation with its principal place of business in Kyoto, Japan.

Prior Proceedings

The Attorney Generals of New York and Maryland each filed a complaint and settlement agreement on April 10, 1991, in the United States District Court for the Southern District of New York and for the District of Maryland, respectively. The Attorney Generals' power to bring these actions and the Court's jurisdiction are based on 15 U.S.C. § 15c.

On June 11 and 20, 1991, the Attorney Generals of the other 48 states and the Corporation Counsel of the District of Columbia filed complaints and agreements that are substantially similar to those in the New York and Maryland actions ("Settlement Agreements"). This court granted preliminary approval to the Settlement Agreements, including the notice provisions, on April 12, June 12, and June 20, 1991.

On July 5, 1991, the California plaintiffs filed objections to the notice and the Settlement Agreements. Oral argument was heard on July 25, 1991. On July 30, 1991, the court denied the California Plaintiffs' request to include additional information in the notice and held that the notice satisfied due process. The court declined to rule on their substantive objections at that time.

In accordance with the terms of the settlement, nationwide publication notice was printed in more than 800 newspapers, TV Guide, USA Today, and four video game magazines. An eight page brochure describing in greater detail the rights to be affected was made available on request. The notice alerted Nintendo console owners as to the existence of the lawsuit and that their rights may be affected by it. It summarized the terms of the settlement and provided the address of the Nintendo Settlement Trustee for those who wished to opt out of the settlements. An 800 number and another address also were provided for receiving inquiries and adding names to the list of persons eligible for a refund. 48 individual requests to opt out have been received.

On September 20, 1991, the Attorney Generals and Nintendo moved for an order to grant final approval to the Settlement Agreements. A hearing was held on September 26, 1991. Representatives of the Alabama and California Plaintiffs were present at the hearing and objected to the notice that was given and to the Settlement Agreements themselves.

The Settlement Agreements

The Settlement Agreements provide for three types of relief: (1) damages in the form of $5.00 coupons for injured purchasers; (2) monetary damages to be used for ...


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