Best Buy / MSN Class Action Proposed Settlement

Recently, the Plaintiffs and Best Buy / Microsoft agreed on a settlement which—if approved by the court—will provide cash reimbursements to eligible class members.

This settlement provides reimbursements for class members who have had an MSN Internet access account established in their name at a Best Buy store between December 1, 1999 and June 30, 2004, that was never logged on to or used, for which they paid subscription fees that were not fully refunded.

If the settlement is approved by the court and if you are a class member and submit a valid claim, you will be entitled to a refund of all MSN charges that you paid on the MSN free-trial account established in your name at a Best Buy store that have not yet been refunded, up to a maximum of $75. Furthermore, if the settlement is approved and your Best Buy created MSN account is still open, Microsoft will suspend service and billing on the account and forgive any unpaid charges.

Frequently Asked Questions

  1.  What is this lawsuit about?
  2. Why did I receive notice about this lawsuit in June 2006?
  3. Why is there a settlement?
  4. Who is included in the settlement?
  5. What does the settlement provide? How do I request a payment?
  6. Who represents the class?
  7. How can I exclude myself from the class?
  8. How can I tell the Court what I think about the settlement?
  9. What is the effect of the final settlement?
  10. When and where will the Court hold a hearing on the fairness of the settlement?
  11. Do I have to attend the fairness hearing? Can I speak at the hearing?
  12. What happens if I do nothing at all?
  13. Where can I get more information?

1. What is this lawsuit about?

From December 1999 to June 2004, Best Buy promoted Microsoft’s MSN Internet access service in its stores by offering store customers MSN subscriptions with free trial periods. If the subscription was not cancelled before the end of the trial period, Microsoft would start charging the subscriber monthly MSN fees, even if the person had never logged on to or used the service. This lawsuit was filed against Microsoft and Best Buy in the Washington Superior Court for King County (Seattle), in Microsoft’s home state. The lawsuit alleges that requiring people to cancel a service they never used was unfair under Washington state law. Microsoft and Best Buy deny they did anything wrong and say it was fair to ask subscribers to cancel their trial subscriptions to avoid being charged after the free-trial period ended. The Court has not decided who is right or wrong.

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2. Why did I receive notice about this lawsuit in June 2006?

In June 2006, class members were sent a notice informing them that the Court had authorized the lawsuit to proceed to trial as a class action. No settlement had been reached at that time and the Court has not decided who is right or wrong. The notice informed class members of their opportunity to exclude themselves from the lawsuit, and told them that if they did not do so, they would be bound by the outcome of the case, whether it was favorable or unfavorable.

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3. Why is there a settlement?

The Court has not decided in favor of either side in the case. Defendants Microsoft and Best Buy deny all allegations of wrongdoing against them, and contend that their conduct was lawful. They assert that they are settling to avoid the expense and inconvenience of continued litigation. Plaintiffs and their attorneys assert that the settlement is in the best interests of the class, because it provides a meaningful recovery now while avoiding the risk, expense, and delay of pursuing the case through trial and any appeals.

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4. Who is included in the settlement?

The class covered by the settlement is defined as all people in the United States who (1) at any time from December 1, 1999 to the present, paid Microsoft for charges in connection with a free-trial MSN Internet access service account that was established in their name at a Best Buy store between December 1, 1999 and June 30, 2004, but did not receive a full refund, and (2) did not log on to the account.

Excluded from the class are Defendants Microsoft and Best Buy, any entity in which any Defendant has a controlling interest, Defendants’ officers, directors, and employees, Defendants’ legal representatives, heirs, successors, and assigns, and any judge to whom the case is assigned and his or her immediate family.

In addition, the class will exclude everyone who timely submits, or previously submitted, a valid request for exclusion from the class. The deadline and procedure for exclusion are described under Question 7 below.

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5. What does the settlement provide? How do I request a payment?

Cash payments

If the settlement is approved by the Court and if you are a class member and submit a valid claim, you will be entitled to a refund of all MSN charges that you paid on the MSN free-trial account established in your name at a Best Buy store (and that were not previously refunded to you), up to a maximum of $75.

To submit a claim, you must complete and mail a claim form (click here to view or download), postmarked by September 27, 2010, to the Claims Administrator at the address listed on the form. You do not need to specify the amount of your refund, as Microsoft’s records show the charges you paid and were not previously refunded. If you submit a valid claim and the settlement is approved, you will be sent a check for the appropriate amount. You must deposit or cash the check within six months after the date on the check. Otherwise, the check will become void, you will not be entitled to any other payment under the settlement, and you will still be bound by the settlement, including the release of your legal claims.

If the Claims Administrator determines that your claim is deficient, you will be notified in writing and given an opportunity to correct the deficiency.

Closure of your account

Furthermore, if the settlement is approved and your Best Buy-created MSN account is still open, Microsoft will suspend service and billing on the account and forgive any unpaid charges. Sixty days later, Microsoft will close the account unless you ask for it to stay open.

If you ask for the account to stay open, Microsoft will reinstate your service and start billing you from the date your account is reinstated. You will not be charged for the time that service was suspended.

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6. Who represents the class?

Class Representatives. The Court has appointed the two Plaintiffs who have been pursuing the lawsuit, James Odom and Katherine Moureaux-Maloney, to serve as class representatives. Like all other class members, Mr. Odom and Ms. Moureaux-Maloney were signed up for an MSN free-trial account in a Best Buy store.

Class Counsel. The Court has appointed the following attorneys and law firms to serve as legal counsel for the class: Daniel C. Girard of Girard Gibbs LLP (San Francisco, California) and Beth Terrell of Terrell Marshall & Daudt PLLC (Seattle, Washington).

From the start of the litigation in 2003 to the present, Class Counsel have received no compensation for their work on the lawsuit or reimbursement of their expenses, except for certain fees and expenses they incurred in connection with discovery disputes that arose in the case. When they ask the Court to approve the settlement, Class Counsel will also request an award of attorneys’ fees and expenses in the amount of $2,625,000, to be paid by Defendants. This requested award is intended to compensate Class Counsel for all fees and expenses they have incurred in the case, other than the amounts already reimbursed as part of the resolution of discovery disputes. In addition, Class Counsel will ask the Court to approve a $2,500 incentive award to each of the Named Plaintiffs for their initiative and effort in pursuing this case on behalf of the class, which included testifying at deposition and consulting with Class Counsel for over six years.

Class members will not have to pay anything toward the fees or expenses of Class Counsel or the Named Plaintiffs’ incentive awards. Class Counsel will seek final approval of the settlement and monitor the implementation of the settlement on behalf of all class members. Class members do not need to hire their own lawyers to represent them for the settlement. Class members remain free to hire their own lawyers for this case, but it will be entirely at their own expense.

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7. How can I exclude myself from the class?

If you fit the class definition, you can exclude yourself from the class and the settlement if you wish to do so. If you exclude yourself, you will not be entitled to any payment under the settlement; you will not be bound by the final judgment releasing class members’ legal claims; and you will remain able to pursue or be part of another lawsuit against Microsoft, Best Buy, or their affiliates concerning the free-trial MSN service that was offered through Best Buy stores (including issues of service provision and billing). To exclude yourself, you must write a letter or postcard that lists your name, address, and telephone number, and states that you wish to be excluded from the class and settlement in Odom v. Microsoft and Best Buy, case number 04 2 10618 4 SEA. You must sign the letter or postcard and send it to the Claims Administrator at P.O. Box 13005, Birmingham, AL 35202-3005. If you send the letter or postcard by mail, it must be postmarked by August 9, 2010. If you send it using a delivery method other than U.S. mail, you must send it in such a way that it is received by August 9, 2010.

If you previously submitted a valid exclusion request in response to the earlier notice that was sent to class members in June 2006, you are already excluded from the class and do not need to submit another exclusion request. You may wish to do so, however, to ensure that you are excluded.

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8. How can I tell the Court what I think about the settlement?

You are a Class Member if:

If you are a class member and do not exclude yourself from the class, you can comment in support of or in opposition to the settlement, Class Counsel’s requested award for attorneys’ fees and expenses, or the requested incentive awards for the two Plaintiffs. Your comments or objections must be submitted in writing. You must send the original of your comments or objections to the Clerk of the Court, and must send copies to Class Counsel, Microsoft’s counsel, and Best Buy’s counsel, so that the documents are received by August 9, 2010. Their addresses are listed below:

Clerk of the Court
Superior Court of Washington for King County
King County Courthouse
516 Third Avenue, Room E-609
Seattle, Washington 98104

Class Counsel:

Daniel C. Girard
Girard Gibbs LLP
601 California St., Suite 1400
San Francisco, CA 94108

Counsel for Microsoft:

Charles B. Casper
Montgomery, McCracken,
Walker & Rhoads, LLP
123 South Broad St., 24th Floor
Philadelphia, PA 19109-1099

Counsel for Best Buy:

Harry H. Schneider, Jr.
Perkins Coie LLP
1201 Third Ave., Suite 4800
Seattle, WA 98101-3099

Your objections or comments (a) must include a reference at the beginning to Odom v. Microsoft and Best Buy, case number 04 2 10618 4 SEA; (b) must list your name, address, and telephone number; (c) must be signed by you; and (d) must state your position and the reasons for your position. You must include copies of any documents you wish the Court to consider. If you do not present your views in writing in compliance with the foregoing procedure and deadline, your views will not be considered, and you will waive any objections you have.

If you want to speak to the Court about your comments or objections, you must follow the procedures described under Question 11 below.

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9. What is the effect of the final settlement?

If you are a class member and do not exclude yourself, and the settlement is approved by the Court, you will be entitled to any applicable settlement benefits, as described under Question 5 above, and you will be bound by the Court’s final judgment dismissing the lawsuit against Microsoft and Best Buy and releasing all relevant legal claims that class members may have. The release of these claims will mean that you will no longer be able to pursue or be part of any other lawsuit against Microsoft, Best Buy, or their affiliates concerning the free-trial MSN service that was offered through Best Buy stores (including issues of service provision and billing).

If you wish to keep those legal claims and retain the right to sue or continue a lawsuit concerning those claims, you must exclude yourself from the class, as described under Question 7 above.

If the settlement is not approved, the case will proceed as if no settlement had been attempted. There can be no assurance that if litigation resumes, the class will recover more than is offered under the settlement, or will recover anything at all.

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10. When and where will the Court hold a hearing on the fairness of the settlement?

Judge Douglass A. North of the Washington Superior Court has scheduled a fairness hearing for September 24, 2010, at 1:30 p.m., to be held in Courtroom W¬ 764 of the of the Washington Superior Court for King County, King County Courthouse, 516 Third Avenue, Seattle, Washington 98104. At the hearing, Judge North will consider arguments, comments, and objections concerning the fairness of the proposed settlement and whether it should be approved. Judge North will also consider Class Counsel’s application for attorneys’ fees and expenses, and their request for incentive awards to the two named Plaintiffs.

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11. Do I have to attend the fairness hearing? Can I speak at the hearing?

You do not need to attend this hearing unless you wish to speak to Judge North, as discussed below. You do not need to attend the hearing to remain a class member or obtain a settlement payment. You do not need to attend the hearing to have your written comments or objections considered by Judge North. You do not need to attend the hearing to exclude yourself. (To submit written comments or objections or exclude yourself, you still have to comply with the relevant deadlines and procedures for doing so, as described under Questions 7 and 8 above.) Nevertheless, if you wish, you or your own lawyer may travel to and attend the hearing at your own expense.

Furthermore, you or your lawyer must attend the hearing if you wish to speak to Judge North about the settlement, Class Counsel’s application for attorneys’ fees and expenses, or the request for Plaintiffs’ incentive awards. First, however, you must put the views you intend to express to Judge North in writing and submit them according to the deadline and procedure described under Question 8 above. Your written comments or objections must include a statement that you intend to appear and speak at the fairness hearing. You must also include copies of any documents you wish Judge North to consider at the hearing. If you want your own lawyer to appear and speak at the hearing in your place, your written objections or comments must state that you intend to have your lawyer appear and speak for you, and must list the name, address, and telephone number of your lawyer.

If you intend to attend the hearing yourself, or have your own lawyer attend the hearing for you, you or your lawyer should check this website regularly, in case the date, time, or place of the hearing changes.

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12. What happens if I do nothing at all?

If you do nothing at all, you will receive no payment under the settlement. You will still be part of the class, however, and your legal claims will be released as described under Question 9 above. This means that you will no longer be able to pursue or be part of any other lawsuit against Microsoft, Best Buy, or their affiliates concerning the free-trial MSN service that was offered through Best Buy stores (including issues of service provision and billing).

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13. Where can I get more information?

The Settlement Agreement and all other pleadings and papers filed in the lawsuit are available for inspection and copying during regular business hours at the office of the Clerk of the Court, Superior Court of Washington for King County, King County Courthouse, 516 Third Avenue, Room E-609, Seattle, Washington 98104.

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PLEASE DO NOT CONTACT THE COURT, MICROSOFT, OR BEST BUY WITH QUESTIONS ABOUT THE SETTLEMENT.

Speak with a Consumer Attorney

If you have questions about this case or wish to discuss a new matter, please contact one of our consumer attorneys by calling (866) 981-4800 or filling in the form on the right.

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