Let me start by saying I got my 360 by waiting in line, so I am not affected by this personally. However I am honestly considering meeting with an attorney regarding the potential for a lawsuit against gamestop. They obviously have thousands of preorder unfullfilled around the country, many of which have been payed for in full. Yet they are receiving stock and selling them on their websites in high priced bundles as we all know and hate. Gamestop stores and online site is one company, they are not franchises. Therefore it would seem logical that if they are willing to take your deposit or money for a presale, then they must be required to fullfill before moving on to other customers. This is the essense of a the presale. They have been receiving thousands of units all week and unloading them in expensive bundles online. This is not so much a complaint, but I want to know if anyone can speak with certainty regarding the legality of this. Please don't a yes or no unless you really know what you are talking about. This seems like one of those cases and agressive attorney would be willing to take so they can get a settlement where the attorneys and firm usually will get a cash settlement fee and all the customers will get something like $50 store credit. This is exactly what happened in the 3G Apple Ipod Battery settlement.

What do you all think?

your right 100%...

Defenatly(sp?) go for it!

They have stated online and regular stores are 2 diff businesses. And quit with the lawsuits, just dont support them anymore.

I was thinking about this myself, they have done something wrong and should pay for it. It should be illegal what they are doing. KEEP me informed

depends if there is any sort of actual physical contract the store enters into when you preorder, and what that contract entails. If there IS a contract, then you must know if there is a time constraint in that contract. If there IS a time constraint, what that time constraint is. The contract may say within the year, 6 months, or 2 years even. Check out these things, if none of them exist, you're wasting your time and money.

If there IS a contract which states that preordorees are entitled to the product when it is recieved by the store, and you manage to put this through to a competent judge, then you'll be a hero.

I am in nashville and I am one that fell to the scam.I still have not recieved my xbox and I was like 12 or 13 on the wait list.If you are gonna do anything please let me know I would be more than happy to join in since my kids will now be without an xbox for christmas.I didnt prepay but I did put down a $50.00 deposit.Iam furious over this whole thing enough to where I still have an unopened game I will be returning to them.If i can find one somewhere else someone please point me in that direction.

Great...another lawsuit to drive up the price of consumer goods. Get a clue people. Who do you think actually pays for all the frivolous suits in the world? We do. Certainly, it comes directly from a losing defendant's pockets, but in the case of a product, it end up eventually coming out of the consumer's pockets in the form of higher prices. And here's the kicker. The individuals who gain the most are the attorneys. And guess what....in essence, we are paying them too. And even if the plaintiff loses, the defendant wil have paid their defense attorneys as they charge by the hour. Plaintiff attorneys typically work on a contingency basis(percentage of the settelement). We lose either way.

Now this is not to discourage lawsuits, but rather, pick and choose your battles. Make sure the suits you file are REASONABLE.

I have sent 2 emails to EBgames customer support:

1:
I just got off the phone with my local EBgames store where myself and a friend preordered Premium Xbox 360’s paid in full back in early August. While I understand why we did not get ours in the first shipment, I do not understand why my local EBgame stores are receiving so few. Why my local Walmart, Target, and Sears have been receiving shipments of 2 to 5 units twice this week. While my 3 local Best Buy stores have received 96 Xbox 360’s respectively this week: (Best Buy #186 – 26units/ BB# 209 – 40units/ BB#302 – 30units), my local EBgames stores have not received any, and are due to receive less than 5 units each “sometime” next week. I wanted to find out what is going on, and how at this current rate less than a quarter of your preorder sales in these stores will be fulfilled at the beginning of next year, while bundle orders have been taken and shipped from your site Ebgames.com.


2:
I find it quite strange that the 2 stores in my area (Boulder Colorado) have each gotten less than 10 systems within a month of release, while every other company selling 360’s have gotten nearly 10 times that amount and they didn’t take preorders. Meanwhile EBgames.com has been selling and shipping ultimate bundles since launch. Given that they may be partially separate from your storefronts it seems as if GameStop/EBgames are shorting units to their storefronts in order to sell the more expensive bundles on your site which have already gone through preorder cycle. How can I consider this anything more than a slap in the face?


Ebgames Responded with the following:

Thank you for contacting EBgames.com.


We are all very disappointed that we were unable to offer more hardware
systems at launch. We are working closely with MS to get
additional systems as quickly as we can.

We recommend that you keep your place on the list with the EBgames
store. All retailers are in the same situation with lower than expected
availability and it may be very difficult to find a system. If you have
a specific place on our list then you will be notified as soon as your
system is available.

The inventory for the store locations and the website is separate.
In order to best assist you with your specific order, you would need to
contact the store directly for the most up to date information. For
store information, including address and phone number, please visit the
following link below:

http://clients.mapquest.com/eb/mqlocator?link=find


If you have any other questions, please feel free to respond to this
email.

Well this response from EB is totally unacceptable. They simple said the inventory is different. That means nothing. That means they can get a shipment of 1000 units, place 1 in the Store trunk, and place 999 in the Online Truck. That is what EB CHOSE to do with their allocation. it was their CHOICE to sell those console at higher prices bundles rather than fulfill the preorder. This is what I want to address with litigation. I think a precident needs to be set for all consumer goods stored regarding this type of situation.

I am usually against these types of lawsuits but having to deal with this first hand, I would be apart of it.

I agree.

I don't understand why people would discourage you from filing a lawsuit. If you win, that means the law WAS broken. If you lose, it wasn't. It is that simple. I don't see how a lawsuit can be "frivolous" if you win or lose. If the case is thrown out of court, then it is frivolous. If you believe you have a case, go for it. That is why we have a legal system.

i would go along with this but im not sure if you have a leg to stand on..

im just wondering does it say anywhere on your receipt saying limited quanity? or if its avialable? you should or shouldn't get one?

Umm...you probably do not have a cause of action against Gamestop/EB Games. Therefore, your lawsuit will get thrown out by the judge before you even get a hearing. I doubt you have an action for breach of contract because the language of the pre-order is not binding, IIRC. So suck it up, but a 360 somewhere else and do not do business with these companies again.

one of you preorder guys, did they give you any sort of reciept or pamphlet with your preorder? If so, pleas post it. And please remember to censor out your name, address, etc.

Looked over my receipt and it says nothing about the pre order besides my customer number.

then I don't see how you'd have any basis for a lawsuit. You could start a petition with the intent of adding more specification to a preorder contract. If you play it right, you might have 'em cornered by the Rev. launch. But unless they have their own implied contract stored aways somewhere, you have absolutely no evidence of any law breaking on their part.

I certainly agree, they said I was probably gonna be on the first shipment, still waiting for my 360...

A contract doesn't have to be in writing. If there was an expectation and it was shared by enough other people, as it seems to have been, then you certainly have grounds to litigate. Don't get caught up in all of this its not on the receipt business, you are allowed reasonable expectations of performance of a contract and if you feel they are not performing then litigate and let the courts figure it out. The clarification such a lawsuit would provide would be mighty helpful to future product releases and help avoid such messes in the future.

I say do it. I would myself if I had more time.

Best,
D

In civil matters, a law does not have to be broken. Civil cases involve civil responsibilities(or a lack thereof). For example, there is no law that states a stair on your property has to be safe. However, if you allow people to access this stair and somone injures themself on it, then they may have a cause of action against you.

Or, a demolition business uses explosives to tear down a building. They did everything they could to minimize damage. Your window blows out as a result of the explosion. They have broken no laws, but are liable for your window.

The reality is, US courts are quite liberal in their willingness to hear a case. They typically don't just throw out a case. Which means money must be spent defending a case. Personally, when I see a person trying to instigate a lawsuit that has no cause of action, I call it frivolous. In this case, a person who ALREADY HAS THEIR 360.

I just wish MS would step up to the plate and ban all bundles to begin with. It's total BS that just pisses your customers off. And, yeah, I think this case has merit. The excuse that their online store has different inventory is just that, an excuse. They have an obligation to fill those pre-orders and they aren't doing it. Instead they are catering to those willing to spend huge amounts on obscene bundles. It's disgusting.

The legal grounding for a sucessful lawsuit is well set. You'd be worse off if there was any sort of actual written contract. Since there is none, you are simply in line to get the console from EB. Being no written contract, there is space to push to certain shops over others for their preorders (including online preorders), but EB corp. is breaking their agreement by selling consoles online outside of their preorder network. You should be capable of receiving lost income of ebay price less the console price.



If he didn't receive his 360 through his preorder then he has lost possible income. Whether or not you personally like that he could have resold it on ebay or through any other means, it is his right to do so. There's nothing wrong with reselling 360's legally, but he had a contract that was broken by EB. A lot of other people had this too. So unless there is some written agreement that hasn't brought up, this is not frivilous at all.

Let me know if anything happens. I am looking into this also. Sue if you don't get your 360 since you are #12 on the list since the beginning. That is just outrageous.

Well I think it's obvious that all parties involved are guilty. It shouldn't be any surprise that if you prordered just a console that your order hasn't been filled. I'm not saying it is right I am saying you shouldn;t be surprised. The biggest thing that factors who is getting the biggest allocation of units is who is moving the most accesories. If Target and BestBuy force you to buy bundles then of course they will be getting the biggest allocations. Gamestop and EB then have to sell a crapload of accessories to continue to get a a large allotment. But if they give a 360 to someone that just preordered a console only they have no accesories sold with it. Since it's the holiday season and the big gift of the season all reatailers are trying to sell a crapload of accessories with 360's to make sure they have a good allotment coming their way down the road. After Xmas it should stop. What I am wondering is what the impact will have on MSs games sales numbers in 1-2 months because obviously alot of people bought games they do not want and will either be returning or selling them on ebay. Which doesn't count for any additional income for MS if anything it will hurt them.

if you think about it theres really not much gamestop can do. its what ever M$ gives them, UNLESS someone at gamestop doesn't like you and skiped over you then that would be bull but i think all they will tell you to do is wait for the next shipment and you will get it or give you your money back

good luck and keep us posted

I want to make it clear my complaint is not the selling of bundles. Sure, it sucks, but it is not illegal or unethical in my opinion and is a clear way to make profit. I remember when i preorded by first Xbox and Gamecube, i was informed at the time of preorder a bundle would be enforced. This is not the problem. My problem is taking preorders for just the system and then sayin "oh we dont have any" while all the allocation is going to bundles online. The stores and online site are the same corporation. Just because they say " oh...we operate seperatly" doesnt make it so! Somebody in the company made the DECISION and the CHOICE to send the console to bundles online rather than fulfull preorders. Somebody in Gamestop looked at the total or general number of preorders they had in stores and STILL decided to screw those people and sell the console all in bundles online. This is the essence of my complaint and any legal argument I hope to discover.

I personally don't believe in bundles. I remember back in the good old days of when you bought what you wanted and if you preordered something they gauranteed it. There has been a lot of shadey business dealing with the 360s and its probably a given that there are going to be some lawsuits sprout up after Christmas. I do know in Oregon the attorney generals office is investigating best buy still. After some kid camped out with enough to buy a premium system, since it was advertised in the privious weeks ad as $399. The manager wouldnt sell it to the kid without a bundle. The kid was only allowed to buy it since it was his money that he saved over an entire year. The dad wasn't going to pay for the bundle over the principle. So they filed a complaint with the state attorney general and now they are looking into best buys practices here. So to people that say lawsuits suck, yes they do but, unfortunately they are not going away ever in the US. So sometimes the only way to make a company operate in law abiding way it takes a lawsuit. Unfortunately there are tons of junk lawsuits. But, if it was your money that you paid 6 months ago and stil do not have a system or any idea when you are getting it. On top of that you see these ridiculously priced bundles they are selling on their website for immediate delivery, I'm sure anyone would be pissed in that situation. Especially since they can only get instore credit no cash refunds. So they are stuck there, can't go out and buy another one somewhere else. If that is not shady I do not know what is.

I believe the question is should someone who ordered online in october get his before someone who ordered in the store in June? Well if that happened if you bought a new home and they built your nieghbors home first because he put a pool and game room in that would surely seem to be good case I think we have something here, those greedy lawyers are just waiting for somthing like this.

I know I spent more than a grand last year at my local EBgames store. I am going to try to find a 360 to replace the one I have paid in full still on preorder with EB, and if I get my hands on one i'll cancel and get my refund. I know I will never shop at EB ever again.

I really hate to defend Gamestop but they might actually be telling the truth. There are two huge chains that I can think of when I say this. Best Buy and Toys R Us. Both of them have online inventory and stores operating seperately from each other. Neither the retail or online stores have to match or agree on prices, and they both control their inventory independently. Therefore, really may be nothing the Gamestop retail stores can do if their online shops are getting them faster and more frequently than the retail store.

i understand why all of you are mad and im in the same boat you are i reserved a 360 from gamestop as well and am still waiting but the complaining about the online store selling them and us not getting ours is pointless. Gamestop.com and Ebgames.com are completely different than the stores in your town. You cannot even return somthing bought off the web sites to the stores. Also if you are going to be mad you should be mad at the EB side of all of this because if you had reserved your xbox and got on the first shipment at Gamestop you would have got one. Every game stop got enough for ALL of thier first shipment people, now EB on the other hand only got about half of all of thier gaurenteed reserves fulfilled on launch day.

im still waiting. i preordered mine pn 6/7/05 and promised day one. still waiting. im getting it next week for the past 3 weeks. ill support t his lawsuit

Id be in as well

You talk about EBgames (In-Store) and EBgames.com (Online) being different, and not being able to return things bought online in-store. But if you goto the website and read the return policy you are able to return items purchased online at your local EBgames.

"Items may be returned or exchanged by shipping them to EBgames.com, or by taking them to an EB Games store location in the United States. Items returned to an EB Games store location must be accompanied by the original packing list. To ship a product to EBgames.com, include the packing list, identify the reason for the return and send it to the address on the return shipping label."

http://www.ebgames.com/ebx/help/shipping/returnPolicy.asp

Knowledge is power. But as of Gamestop.com, that's a different story.

You can talk to an attorney if you like, but the bottom line is going to be, where are your damages? I am waiting for mine from Gamestop too. I paid like everybody else, am I am pissed as hell. However, you have to think how are you being damaged before you can think about a lawsuit. Are you being skipped in line? Sure. Is Gamestop ensuring that none of us are ever going to preorder with them again? Absolutely.

Gamestop will be the first to tell you if your not happy, you can have your money back at any time and step out of the line. It would be different if you could not get your money back, but they will refund you your full amount the same way you paid. If you paid cash, you'll get cash back. If you paid by credit card, they will refund your card. We have not had our money stolen, they are holding on to it but will give it back so we are not being damaged in any way, therefore a lawsuit would be baseless. They are not forcing us to buy from them. You can't litigate against poor judgement in a case like this.

We all know why they are doing what they are doing it. MS loses money on every unit they sell. They make the money back on games, and so they (Gamestop) are probably only dribbling inventory into the retail stores because the money is being made in the bundles. MS is probably limiting what they can get unless they promise to sell a large percentage of their stuff in bundles, and they can't do that in the case of preorders. So Gamestop has to choose between getting little or no inventory to cover preorders, or get some units, but have to sell others in bundles to keep supply lines open. MS wanted no part of preorders to start with for just this reason, and Gamestop/EBgames is paying the price for it now.

I am not justifying what they are doing because I think it stinks. However, I have never been without an option to get my money back either. It's too damn cold in Wisconsin for me to wait outside, but perseverance will pay off and I will eventually get my system. If you really want to stick it to GameStop/EBGames, then when you system comes in, get your system and walk out. Buy your games from somewhere else, that will put the hurt on them and tell the store manager why.

There is a reason Gamestop/EBGames will not give their employees a discount on consoles. If they gave them the 15% discount like they do on games, they would lose money on the system. It's always, about the money.

Good luck to everyone landing one.

.com and the brick and morter stores are different business entities. 90+% of retail stores that have an online store operate as a seperate business entity. they get replenished differently. the online stores get much larger inventories to handle the potention millions of shoppers instead of the hundreds or thousands of potential shoppers at a retail store. the retail outlets for these game shops have no control over what the online store does. my guess is that at the head of the corporate office there are even 2 different people in charge to run each entity. think about it, your local store services say 10,000 people and got 20 units in. well if the online store wants to satisfy 10,000,000 people their equivalent is 20,000 units. sounds fair to me. now the bundling i don't agree with at all. but them selling a lot of units online i have no complaint with. you have no argument and would be just wasting time and a lot of money taking this to court. the ipod battery is a whole different ball game. that was a defective part, you're just trying to make a case because you didn't get a video game console. not anywhere even close to being on the same playing field.

In a class action lawsuit only the lawyers win.

If you want to vent against Gamestop/EB just don't shop there anymore. That will hurt them a lot more than anyone going lawsuit crazy.

Hello,
Take this information I give you as you like.

1) Do not forget that those who reserved an XBox 360 are entitled to their money back at any time.
2) We fully encourage you to buy an XBox 360 elsewhere if you can, don't pass up a chance to get on just because we may call you.
3) The clerk - at time of reservation - should have told you what shipment you were on. According to our latest information our warehouses - which have been empty, not those that supply our online store mind you - have shipped out systems to most stores. So, if you reserved yours before July 7th, you may very well get it by December 23rd. ALSO, remember many, many, many people have canceled their reserves as a result of this on-going shipment fiasco and the arising defects in certain XBox 360 systems.

-GameStop Manager

1) It seems your stores NEVER have enough cash to refund me my $423.99 EVER. Not at close on a Friday or Saturday, and definitly not on weedays. I've been to my store 5 times in the last two weeks.
2) I have. It was easier, and I wasn't lied to.
3) I was. It was #1. Then i was called the week before launch. I was bumped back a shipment. "You'll probably get yours the second shipment, the 12th" 2 fucking units made it to customers in the list 2nd shipment, and I was number 17. I paid $50 on June 25th.

Politics aside, Gamestop will be no more by 2010. Lying to customers and bullshitting gets companies nowhere. Honestly, the Video Game industry is surpassing the movie industry in the next few years, and Gamestop can't make this work? This is why. I paid my cash balance on the 22nd BASED ON LIES. I want it back in CASH.

BTW, your employees bought 80% of the 2nd shipment from my store.

Yeah, I had "guaranteed" first shipments at all three stores which I preordered from. In fact, this was the only reason that I placed preorders at those stores and the employees were aware of this fact. Yes, I intended to keep one and sell the other two on eBay to cover the cost of the first. These are the damages which I will have to file a small-claims (not a class action) lawsuit in order to recover.

At least two of the stores which I preordered from, directly and blatently committed fraud by telling me I was guaranteed first shipment when it was unknown to the employees how many consoles were supposed to be in the first shipment and they were told by management/corporate not to guarantee anything. The claim that the online and B&M stores are separate entities may be true on the surface. However, they are the same corporation and allocations from one could be shifted to the other transparently.

Unfortunately, GameStop chooses to ignore the preorders placed in the stores and instead has been allocating the vast majority of all received systems towards the illegal bundles being sold online. I say illegal since at least in the state of Maryland, a state where GameStop.com does business, forced bundling of this nature is illegal. Additionally, not a single store that I have contacted in Maryland (approximate 15 so far) has received ANY units since the initial shipment due to all stock being sold in bundles online.

While you may or may not be an actual GameStop employee, the fact is that not only has GameStop breached any moral trust that it may have had, it has also violated several laws:

- Fraud in the inducement
- Fraud in general
- Forced bundling
- Breach of contract
- Breach of the covenant of good faith/good dealing

Again my problem is with the assumption that the Brick and Mortar store and Online stores are "seperate entities". This is true because these stores have chosen to make it so. They are still the same store. Target.com and Target down the street are the same. EBgames.com is ownbed by the same people who own individual EB stores. This is the INTERNAL corporate structure that they have created for themselves for the purposed of organization and to manage two different pools of customers: those in the store and those online. The FACT however is that the difference between the online store and the brick and mortor stores in terms of the LAW doesnt exist! Legally, Gamestop.com is gamestop and Eb.com is EB. In the end if you climb the corporate ladder high enough, you will eventually reach a level where there is control over both online and brick and mortor store. So long as that level exists, they are one in the same.

I am not BLAMING anyone who works or operates an EB or Gamestop. I am not blaming MS. They make as many as they can and send them out. My problem is with ALLOCATION. Gamestop and EB are electing to to keep all the units or online bundles and fulfull preorder that have existed long before their bundles did. By the logic many of you are presenting, there is nothing preventing them from saying out of every 1000 360's we get, 1 is going to a store and the rest go to online bundle. If fact that isnt wrong in it self, what is wrong is that they have OUTSTANDING preorders that are supposed to be filled at the earliest possible time.

From a technical standpoint, what damages have YOU suffered from this? You already stated you received your 360. What cause of action do YOU have? This is my biggest problem. While I would disagree that filing a suit is simply the way to go in a case like this, I won't argue against someone's right to file a suit. But where is your legal interest in this matter?

Secondly, many companies out there are parent companies of several companies. The books are indeed kept seperate and from a legal standpoint, are considered a seperate company(assuming they filed as a form of Limited Liability Company). As an example, if I set up several LLC's and owned each, and someone sued one of my companies, then the liabilities of that company could not transfer to me as the owner nor any of my other companies. Between how the companies are likely set-up and that any sales of products from their .com counterparts in a store are likely done as some sort of agent relationship. In this case the store would likely have no control over the .com company and could not be held liable for their operations.

the way i see it is if you go far enough up the ladder of both the online store and the high street store you get to the same people. ms would have sent an allocation to a firm like ebgames, and it would be upto ebgames to have allocated them from the top to the bottom, i doubt ms would deal with the small departments of each company. they would deal with the head office.

so if it is like this, someone at the top has decided to hold back some 360's for there online sites and to sell them there quickly, without dealing with the preorders they agreed to first. surely this is a bad practice, that they probably think that the pre orders will get them eventually, and probably has something to do with the christmas revenue they have to bring in(like they know they are more likely to sell bundles at christmas than any other time of year).

i would guess he does have a case, especially in usa. also while they have his money they are also earning interest of it, and he has lost interest on it, if it were in a bank, so he could say loss of earnings also, to add to the fraud of how allocation works.

i couldn't agree more.



your are a good customer, you are one of the few people that know that it is not the employees fault. most people when they dont get their own way in the retailing market usually start yelling and screaming at the shop assistant like it is their fault. it isnt their fault, they are simplily just representatives of the company, by no way is it their doing that you dont get an xbox360. there has been so many threads in here about "ohh walmart/gamestop/whatever employees are shit". why are they shit? is it because of their actions you have no xbox360? you poor baby . good on ya arashd

Hmm? Are you actually going to report the income from this on your taxes? You know it is illegal not to. I'll go out on a limb and guess you probably have no intent to. And if that is the case, preaching about what someone else is doing illegally is a bit hypocritical. If I'm wrong, I'm wrong, but I'll say it.

I explained how an LLC may protect them in this lawsuit. And from what I can tell, Gamestop.com is set up in New York and Texas, so it would be doubtful you can make a MD law stick.

Personally if you're intent was to sell these on EBay at a higher cost, then I think corporations are doing a service by selling bundles. With these marked up units all over E-Bay, you don't get anything. With the bundles, you at least get what you are paying for, and in some cases you get a better overall deal.

Lastly, as far as I can tell based on the sites I looked at, none appear to claim to have any bundles in stock anyways. So what cause of action does anyone have if they are sold out in both stores?

At least for those of you who paid in full, you obviously have a leg to stand on with a lawsuit. You've already purchased the product, they have received Xbox 360's into their warehouse (as evidenced by the "Steel Bundles" and "Titanium Bundles" they've sold recently), yet you haven't received what you paid for. I'm not sure why some people are defending their actions. By their logic, if I went into a grocery store and paid for a loaf of bread, the store could refuse to give it to me for several weeks because there wasn't a contract specifying that they have to give me my loaf of bread immediately.

After not receiving a response to my second email asking Ebgames.com for an explanation other than “we are two separate stores”, I began posting on their financial message board on yahoo, maybe someone there will listen.

http://finance.yahoo.com/q/mb?s=GME

keep us posted, do you know of someone else in the same position, because it is probably harder to be listened to if you are the only one complaining.

I for one am in the same position. And from looking around on the boards, there are many more.

while this does suck and everything its kind of out of your hands...they sold you a tick to a ride...now get in line.
can you take disney to court cuase you had to wait on line? or the movie thearter cause you had to wait on line and then had to sit in the front row?
you could get your money back and wait till stores have them available for purchace.
dont get me wrong i understand everyone being upset. but think about it. they siad you will get an xbox 360...but not when you would get an xbox 360.
they should only do presales for the first shipment numbers, and after this i imagine they will.

my girlfriend just took a job at EB and as soon as the consoles are in the door they call the next on the list of pre orders and they get them in all the time..seemingly more so then Best Buy.