Legal NoticeLos Angeles
A settlement has been proposed in a class action lawsuit involving the Nyko Technologies, Inc. Intercooler 360 product for use with the Microsoft Xbox 360. The settlement will provide that Nyko extends its warranty on the Intercooler 360 to three years from the date of purchase of a new Intercooler 360 version 1 or version 2. If you purchased a defective new Intercooler 360 version 1 or version 2, which were sold to retailers from March 20, 2006 to February 25, 2007, the proposed settlement will provide that you may send it within three years of the date of your purchase to Nyko, who will replace it with a new Intercooler 360 or any other Nyko product of equal or lesser value. Or, you may chose to exclude yourself from the settlement, or object to it. The United States District Court for the Central District of California in Coles v. Nyko Technologies, Inc., U.S.D.C., C.D. Cal. Case No. 2:07-cv-02977-FMC-RCx (the "Action") authorized this notice. Before any warranty extensions are granted, the Court will have a hearing to decide whether to approve the settlement.
WHO IS INCLUDED?
You are a Class Member and may be entitled to extended warranty protection if you purchased a new Intercooler 360 version 1 or version 2 from March 20, 2006 to August 25, 2007 and it is defective. If you are not sure you are included, you may obtain additional information, including a copy of the Settlement Agreement, at www.nyko.com\settlement by clicking on the links below or by calling toll-free 1-866-333-6741 or by emailing Nyko at firstname.lastname@example.org.
WHAT IS THIS ABOUT?
The plaintiff in the Action claimed that the Intercooler 360 was defective and that Nyko refused to honor warranty claims for defective Intercooler 360s in violation of its warranty obligations and consumer laws, and engaged in unfair competition by misrepresenting the ability of the Intercooler 360 to reduce Xbox 360 operating temperatures. Nyko denies the plaintiff's contentions, denies any wrongdoing, denies that the Intercooler 360 was or is defective, and contends that the Intercooler 360 does what it is advertised to do. The Court did not rule in favor of either side. But both sides agreed to a settlement to resolve the case in order to avoid expense, inconvenience, and interference with ongoing business operations.
WHAT DOES THE SETTLEMENT PROVIDE?
Nyko agreed to extend its existing 90 day warranty on the Intercooler 360 version 1 and version 2 to three years. A Settlement Agreement, available at www.nyko.com\settlement, describes all of the details about the proposed settlement. If you purchased a new Intercooler 360 version 1 or version 2 and it was defective, you will be entitled to send it to Nyko within three years of your purchase and Nyko will replace it with a new Intercooler 360 or another Nyko product of equal or lesser value. Nyko will pay for standard domestic
HOW DO YOU ASK FOR A REPLACEMENT PRODUCT?
Just call or email Nyko at the toll-free number and email address provided below to obtain a shipping authorization form, which will be sent to you by mail or email. The form will allow you to select between a replacement Intercooler 360 or specify a different Nyko product of equal or lesser value. Then use the shipping authorization to send your defective Intercooler 360 to Nyko no later than three years after the date of your purchase.
WHAT ARE YOUR OTHER OPTIONS?
If you don’t want to be legally bound by the settlement, you must exclude yourself from the Settlement Class by January 19, 2009, or you will be deemed to have released Nyko and all other persons from all claims, causes of action or losses of any kind whatsoever which you have or may claim to have against such persons which are based upon, arising out of, or in any way relating to any of the acts, omissions or other conduct that have or could have been alleged or otherwise referred to in the Action.
To do so, you must download a Request for Exclusion form from Nyko's Web site, www.nyko.com\settlement by clicking on the link below, or request one from Nyko at the address, telephone number or email below, and fill it out and send it to Nyko as instructed on the form.
Nyko Technologies, Inc.
1990 Westwood Blvd.
If you timely and validly request exclusion from the Settlement Class, you will be excluded from the Settlement Class, 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 Nyko based on the conduct complained of in the Action.
If you stay in the settlement, you may object to it by January 19, 2009. If you wish to object to the proposed settlement, you must file a written objection and/or a Notice of Intention to Appear with the Court, and serve such objection and/or Notice upon Class Counsel and the Company's Counsel at the addresses set forth below. Any written objections and/or Notice of Intention to Appear must state, in clear and concise terms, the legal and factual arguments supporting your objection. If your objection is rejected, you will be bound by the final judgment just as if you had not objected.
CLASS COUNSEL NYKO'S COUNSEL
Jason J. Rudolph, Esq. Dan P. Sedor, Esq.
Milstein, Adelman & Kreger, LLP Jeffer, Mangels,
2800 Donald Douglas Loop North 1900 Avenue of the Stars, 7th Floor
To be considered, the notice and objection papers must be received by the Court and delivered or postmarked to Class Counsel and the Company's Counsel no later than January 19, 2009. Class Members who do not make their objections in this manner in a timely fashion will be deemed to have waived all objections and will not be entitled to be heard at the settlement approval hearing. You may, but need not, enter an appearance through counsel of your choice. If you do, you will be responsible for your personal attorneys' fees and costs.
The Court will hold a hearing in the Action at 10:00 a.m. on February 2, 2009, in Courtroom 750 of the Honorable Florence-Marie Cooper at the United States District Court, Central District of California, Western Division,
This description of the Action is general and does not cover all of the issues and proceedings thus far. In order to see the complete file including the individual terms of the settlement, you may visit the office of the Clerk of the Court United States District Court, Central District of California, Western Division, located at
DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT OR TO THE JUDGE.
By: Order of the
HONORABLE FLORENCE-MARIE COOPER
UNITED STATES DISTRICT JUDGE