Retailer Brian Hibbs' class action lawsuit against Marvel Comics (for failure to accept returns), which he initiated in 2002 and which appeared to be on the verge of final settlement, has been dealt a setback by the presiding judge, who decided at the last minute that the nature of the class action suit should be changed from 'opt-out' to 'opt-in.' 

Marvel, in complying with the settlement reached with the plaintiffs, has spent over $100,000 notifying some 5,000 retailers about the nature of the settlement (see 'Comic Retailers Get Marvel Settlement Package'), which would provide retailers with a credit equal to 24% of their cost on late issues and 17.5% of their cost for comics that shipped with creators or content that differed from what was announced in Marvel's solicitation material.  Only 19 of the 5,000 retailers, whose potential credits were only a tiny fraction of the total, opted out of the proposed settlement.

Nancy Ledy-Gurren, lead attorney for the plaintiffs, was puzzled by the Judge's decision to change the basic nature of the class action suit at the last minute and she told ICv2 that she was filing an appeal of the Judge's ruling with the New York State Appellate Division by February 22nd in order to get the case on the Appellate Division's May docket.  Ms. Ledy-Gurren told ICv2 that the Appellate Division was typically very efficient in handing down decisions and that she expected to get a ruling on her appeal by June.  If the Appellate Division finds in favor of her appeal, retailers could receive their credits from Marvel this summer.

If the Appellate Division upholds Judge Ramos' ruling, the situation is quite a bit murkier.  The notification process will have to be done all over again and retailers will have to 'opt-in' and respond in writing to the notification process if they wish to receive credits from Marvel.  Although it stands to reason that the 'opt-in' process will result in a smaller number of retailers participating in the settlement, Marvel has already agreed to the settlement on an 'opt-out' basis, and, like the plaintiffs, wants it to go forward.  Stay tuned for further developments in this long-running saga.