If you purchased a Performance Service Contract (PSC) offered by Fry's Electronics, Inc. (Fry's), in the State of California from January 1, 2003 through October 23, 2009 and are one of the few people who were inadvertently charged sales tax on the value of the PSC, and did not return the PSC for a credit or refund, you are a class member of the Class Action case entitled Luckner vs. Fry's Electronics, Inc., San Diego Superior Court Case No. 37-2008-00079984 ("Class Members"). If you submit a valid claim form and supporting documentation, you will be entitled to a refund of this sales tax overpayment as described more fully below.
IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ THIS
NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS.
PURPOSE OF THIS NOTICE
This notice informs you about the above-referenced action and a proposed Settlement on behalf of a certain class of persons. This notice advises you of the benefits that may be available to you under the proposed Settlement and your rights and options as a Class Member, and notifies you that hearings will be held to approve the Settlement.
There is currently pending in the California Superior Court for the County of San Diego an action entitled Luchner vs. Fry's Electronics Inc., Case No. 37-2008-00079984-CU (the "Action"). On December 30, 2009, Judge Jeffrey B. Barton of the San Diego Superior Court, tentatively approved a proposed settlement in this Action.
WHAT THE ACTION IS ABOUT
Plaintiffs Carl Luckner and Melanie Luckner filed a class action lawsuit against Fry's Electronics, Inc., (hereinafter referred to as "Fry's" or "Defendant'') on behalf of themselves and all Class Members. Plaintiffs' law firm ("Class Counsel"), which represents Plaintiffs and the Class Members, is the Law Offices of Alexander M. Schack.
The lawsuit alleges that Fry's violated California law by charging sales tax on PSC's. Fry's denies that it has violated California law, and denies that any class member is entitled to any relief. However, to avoid the expense, inconvenience and interference with its business operations created by the Action, it has concluded that it is in its best interests to settle the Action on the terms summarized in this Notice.
The settlement was reached through lengthy arms-length negotiations between the parties and with the assistance of a neutral mediator.
The Court has determined that the Action should proceed as a Class Action, for purposes of settlement only, with Plaintiffs as representatives of the Class, and granted preliminary approval of the settlement, subject to a final fairness hearing discussed below.
THE PROPOSED SETTLEMENT
THE PARTIES HAVE AGREED TO THE SETTLEMENT GENERALLY DESCRIBED BELOW:
FRY'S shall directly refund by check to all customers for which FRY'S has an address, any California sales tax charged on a FRY'S PSC purchased in California during the relevant time period, plus 10% simple interest.
As to the class members for which FRY'S does not have a current address, FRY'S will offer to refund by check any California sales tax charged on a PSC purchased in California during the relevant time period, plus 10% simple interest, upon the customer providing FRY'S with a valid claim form (with supporting documentation), subject to verification by FRY'S.
FRY'S is informed and believes that the total amount of sales tax and interest at issue is approximately $52,000.
The Parties agreed that, subject to the Court's final approval, the named Plaintiffs, Carl Luckner and Melanie Luckner, shall be entitled to an incentive award of up to $3,000 in recognition of the risk to Plaintiffs as the Class representatives in commencing the lawsuit in the Action, both financial and otherwise; the amount of time and effort spent by Plaintiffs as the Class representative; and for serving the public interest. The Parties also agreed that subject to the Court's final approval, Class Counsel shall be entitled to an award of attorneys' fees and costs of up to $50,000. The Payment of attorneys' fees will not affect the benefits provided to the Settlement Class.
RELEASE OF ALL CLAIMS
If the settlement is granted final approval, Fry's and each of its past or present officers, directors, shareholders, employee's, agents, principals, heirs, representatives, accountants, auditors, consultants, attorneys, insurers and reinsurers, and its and their respective successors and predecessors in interest, subsidiaries, affiliates, parents, subsidiaries, and each of their company- sponsored employee benefit plans and all of their respective officers, directors, employees, administrators, fiduciaries, trustees and agents will be released from all claims, liabilities, demands, debts, accounts, obligations, actions, and causes of action, known or unknown, suspected or unsuspected, at law or in equity, of any kind or nature whatsoever (collectively "Claims") for Defendant's alleged violation of California Revenue and Tax Code Section 6051 (the alleged improper collection of sales tax on PSC's).
FINAL FAIRNESS HEARING
A final hearing will be held before Judge Jeffrey B. Barton of the San Diego County Superior Court, on March 19, 2010, at 9:00 a.m., to determine whether the proposed Settlement is fair, reasonable and adequate and should be finally approved. The hearing will take place at the San Diego County Superior Court, in Dept. 69, located at 330 W. Broadway, San Diego, California 92112. You are not required to attend the hearing in order to participate in the settlement.
WHAT YOU CAN DO
1. To Receive A Refund. As a Class Member you are eligible to receive a refund of any California sales tax charged on a FRY'S PSC purchased in California during the relevant time period, plus 10% interest. In order to receive this refund, you must timely complete and return a valid Claim Form (with supporting documentation). A Claim Form can be obtained by asking for a Claim Form at a Fry's return register or by downloading a Claim Form at www.frys.com. In order for the Claim Form to be considered, it must be postmarked by and mailed to Legal Department, Fry's Electronics, Inc., 600 E. Brokaw Rd., San Jose, CA 95112 by February 26, 2010.
2. To Exclude Yourself From The Settlement. As a Class Member, you have the right to exclude yourself from the Action and the settlement. If you are a Class Member and wish to be excluded, you must submit a letter or postcard post-marked no later than February 26, 2010 with the case name, your name, address, and telephone number, stating "I wish to be excluded from the Fry's Class Action." To be considered valid, a request for exclusion must set forth all of this information, it must be signed by you personally, and it must be timely received. Your request must be sent to: Plaintiff's Counsel: Alexander M. Schack, 16870 West Bernardo Drive, Suite 400, San Diego, California 92127.
If you timely and validly request exclusion from the Class, you will be excluded from the Class; you will not receive any benefits from the settlement; you will not be bound by the judgment entered in the Action and you will not be precluded from otherwise prosecuting any individual claim, if timely, against Fry's based on the transactions complained of in the Action. If you do not wish to exclude yourself, and have no objection to the settlement, you are eligible to receive the benefits of the settlement if the settlement is approved.
3. To Object To The Settlement. If for some reason you desire to object to the terms of the settlement, you may do so under 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.
If you decide to appear and object, you must file and serve your written request to appear and object with the Court, and upon Class Counsel by February 26, 2010. You must serve all such notices and papers upon Class counsel at the following addresses:
Alexander M. Schack,
16870 West Bernardo Drive, Suite 400
San Diego, California 92127
(Plaintiff Class Counsel)
The mailing address for the Final Approval Hearing is:
San Diego County Superior Court
330 W. Broadway
San Diego, California 92112
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 approval hearing.
If you have further questions regarding this lawsuit you may contact Plaintiffs' Class Counsel, Alexander M. Schack, Esq. of the Law Offices of Alexander M. Schack, at 858-485-6535. DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT, TO THE JUDGE, OR TO COUNSEL FOR DEFENDANT.