Settlement Statement in the ABA Legal Action Against Barnes & Noble and Borders

Apr 19, 2001, 01:00 ET from American Booksellers Association

    TARRYTOWN, N.Y., April 19 /PRNewswire/ -- The following is the complete
 Settlement Statement in the ABA legal action against Barnes & Noble and
 Borders. The settlement was announced earlier today; for the update go to
 http://www.bookweb.org/home/legal/4530.html.
 
     SETTLEMENT AGREEMENT
     The following constitutes the terms of settlement between the American
 Booksellers Association, Inc. ("ABA"), the 26 individual Plaintiffs listed in
 Attachment A ("Plaintiffs"), the Barnes & Noble entities listed in Attachment
 A ("Barnes & Noble"), and the Borders entities listed in Attachment A
 ("Borders") -- collectively "the parties" -- to settle American Booksellers
 Association, Inc. et al. vs. Barnes & Noble, Inc., and Borders Group, Inc. et
 al., NO. C98-1059WHO (N.D. Cal.) ("the lawsuit").
     1. The parties acknowledge that on March 19, 2001, the Court entered an
 Order and Opinion granting partial summary judgment in favor of Barnes & Noble
 and Borders. The parties agree to entry of a Court order dismissing with
 prejudice all claims in the second amended complaint.
     2. To the greatest extent permitted by law, the parties hereby release
 each other from any and all state and/or federal claims which any party has or
 may have in any personal or representative capacity against any other party
 relating in anyway to the matters contained in the second amended complaint or
 litigated in the lawsuit up to the date of the settlement, regardless of
 whether the claims released have been set forth in the lawsuit, including a
 waiver by all parties of any rights under California Civil Code Sections 1542.
 None of the facts, allegations, or other matters that occurred prior to the
 date of the execution of this agreement can be used to support a future claim
 against any party.
     3. During the next 3 years (36 months), the ABA and Plaintiffs each
 covenants to refrain and forebear from instituting any action or litigation
 against Barnes & Noble and/or Borders related to any activities, practices,
 conduct or facts alleged in, litigated in, or underlying this lawsuit. Also,
 to the extent permitted by law, during the next 3 years (36 months), the ABA,
 Plaintiffs, and their counsel herein each agrees that they will not, either
 directly or through their respective agents, attorneys, employees or
 representatives, support, fund, or aid any third party, including any ABA
 member or any other person or entity, to institute or pursue any claims or
 litigation against Barnes & Noble and/or Borders that are related to any
 activities, practices, conduct or facts alleged in, litigated in, or
 underlying this lawsuit.
     4. Each party will bear its own costs. Barnes & Noble and Borders will
 each pay $2.35 million to the ABA as a reimbursement of a portion of the legal
 fees expended by the ABA in the lawsuit.
     5. The ABA and Plaintiffs and their counsel agree that all information
 produced by Barnes & Noble and Borders during the course of the lawsuit in
 whatever form, and all copies of depositions taken in the lawsuit, and (unless
 otherwise agreed) any work product containing or attaching in whole or
 substantial part such information shall promptly be destroyed, after which the
 ABA's and Plaintiffs' counsel will so certify. The ABA's and Plaintiffs'
 counsel will certify that all copies of such depositions have been returned
 from all court reporting services and all persons affiliated in any way with
 any plaintiff in the lawsuit. The ABA's and Plaintiffs' counsel will secure
 the return of all documents produced by Barnes & Noble and Borders in the
 lawsuit which have been lodged with the Court and all deposition transcripts
 which have been lodged with the Court, for destruction in a similar fashion.
 Nothing in this paragraph shall apply to the transcripts of any court
 proceedings or to any filings with the court.
     6. The parties agree to issue the attached Joint Statement announcing that
 they have settled the lawsuit on the terms contained in this agreement, with a
 copy of this agreement attached to the joint statement.
     7. The parties agree that this Settlement Agreement will be governed by
 California law.
     8. All parties hereby represent and warrant that they have been informed
 of the terms of this Settlement Agreement by their counsel and have knowingly
 and intentionally waived their claims as specified herein pursuant to the
 advice of counsel.
     9. All parties agree that this Settlement Agreement is the complete
 settlement agreement between the parties and may not be modified in any way
 without a separate written agreement executed by all parties.
 
     JOINT STATEMENT
     Barnes & Noble, the Borders Group, and the American Booksellers'
 Association reached agreement today ending their lawsuit. A copy of that
 agreement is attached.
 
     ATTACHMENT A
     The 26 Individual Plaintiffs
     Book House of Stuyvesant Plaza, Inc.; The Book Shop, Inc.; The Book Stall
 at Chestnut Court, Inc.; Book Soup, Inc., B&R Books, Inc., dba Little
 Professor Book Center; Changing Hands Bookstore, Inc.; Cody's Books, Inc.;
 College Book Company of San Antonio, Inc., dba The Twig, Booksmith of San
 Antonio and Red Balloon Children's Book Store; Books by Mail, LLC;
 Copperfield's Books, Inc. and Petaluma Gold, dba Copperfield's Books; Dutton's
 Brentwood Books, Inc.; Edward B. Elrod, Sole Proprietor and Successor In
 Interest, dba Ventura Book Store; Elliott Bay Book Company, a corporation;
 Third Place Company LLC, dba Elliott Bay Book Company; The Happy Bookseller;
 Inkwood, Inc., dba Inkwood Books; Kepler Corporation, dba Kepler's Books &
 Magazines; Ketterson's Old Market Bookstore; Left Bank Books, Inc.; Lemuria,
 Inc.; Midnight Special Bookstore, Inc.; Our Gang, Inc., dba Freddy's Feed and
 Read; Sam Weller's Books, Inc., dba Sam Weller's Zion Bookstore; Tattered
 Cover, Inc.; The Squirrel Hill Bookstore; Thunderbird Bookshops, Inc.; Tiger &
 Company, Inc, dba Chapters: A Literary Bookstore; and Women & Children First,
 Inc.
 
     The Barnes & Noble Entities
     Barnes & Noble, Inc.; Barnes & Noble Booksellers, Inc.; B. Dalton
 Bookseller, Inc.; Doubleday Book Shops, Inc.; Marboro Books Corp.;
 Barnesandnoble.com LLC, Barnes & Noble Online, Inc. The Borders Entities
 Borders Group, Inc.; Borders, Inc.; Walden Book Company, Inc.; Borders
 Online, Inc.; Borders Fulfillment, Inc.; and The Library, Ltd.
 
      ATTORNEYS FOR THE ABA AND PLAINTIFFS
      DAVID W. DEBRUIN
      BRUCE V. SPIVA
      WILLIAM M. HOHENGARTEN
      JENNER & BLOCK
      601 13th Street, N.W.
      Washington, D.C. 20005
      DOUGLAS R. YOUNG (SB #73248)
      FARELLA, BRAUN & MARTEL LLP
      235 Montgomery Street
      30th Floor, Russ Building
      San Francisco, California 94104
 
      ATTORNEYS FOR BARNES & NOBLE
      DANIEL M. PETROCELLI (SB #97802)
      ALAN RADER (SB #45789)
      DAVID R. GARCIA (SB #151349)
      O'MELVENY & MYERS LLP
      1999 Avenue of the Stars, Seventh Floor
      Los Angeles, California 90067-6035
 
      ATTORNEYS FOR THE BORDERS GROUP
      REGINALD D. STEER (SB #56324)
      ANDREW M. MASTIN (SB #154860)
      RICHARD J. NELSON (SB #141658)
      SKJERVEN MORRILL MacPHERSON LLP
      Three Embarcadero Center, 28th Floor
      San Francisco, California 94111
 
 

SOURCE American Booksellers Association
    TARRYTOWN, N.Y., April 19 /PRNewswire/ -- The following is the complete
 Settlement Statement in the ABA legal action against Barnes & Noble and
 Borders. The settlement was announced earlier today; for the update go to
 http://www.bookweb.org/home/legal/4530.html.
 
     SETTLEMENT AGREEMENT
     The following constitutes the terms of settlement between the American
 Booksellers Association, Inc. ("ABA"), the 26 individual Plaintiffs listed in
 Attachment A ("Plaintiffs"), the Barnes & Noble entities listed in Attachment
 A ("Barnes & Noble"), and the Borders entities listed in Attachment A
 ("Borders") -- collectively "the parties" -- to settle American Booksellers
 Association, Inc. et al. vs. Barnes & Noble, Inc., and Borders Group, Inc. et
 al., NO. C98-1059WHO (N.D. Cal.) ("the lawsuit").
     1. The parties acknowledge that on March 19, 2001, the Court entered an
 Order and Opinion granting partial summary judgment in favor of Barnes & Noble
 and Borders. The parties agree to entry of a Court order dismissing with
 prejudice all claims in the second amended complaint.
     2. To the greatest extent permitted by law, the parties hereby release
 each other from any and all state and/or federal claims which any party has or
 may have in any personal or representative capacity against any other party
 relating in anyway to the matters contained in the second amended complaint or
 litigated in the lawsuit up to the date of the settlement, regardless of
 whether the claims released have been set forth in the lawsuit, including a
 waiver by all parties of any rights under California Civil Code Sections 1542.
 None of the facts, allegations, or other matters that occurred prior to the
 date of the execution of this agreement can be used to support a future claim
 against any party.
     3. During the next 3 years (36 months), the ABA and Plaintiffs each
 covenants to refrain and forebear from instituting any action or litigation
 against Barnes & Noble and/or Borders related to any activities, practices,
 conduct or facts alleged in, litigated in, or underlying this lawsuit. Also,
 to the extent permitted by law, during the next 3 years (36 months), the ABA,
 Plaintiffs, and their counsel herein each agrees that they will not, either
 directly or through their respective agents, attorneys, employees or
 representatives, support, fund, or aid any third party, including any ABA
 member or any other person or entity, to institute or pursue any claims or
 litigation against Barnes & Noble and/or Borders that are related to any
 activities, practices, conduct or facts alleged in, litigated in, or
 underlying this lawsuit.
     4. Each party will bear its own costs. Barnes & Noble and Borders will
 each pay $2.35 million to the ABA as a reimbursement of a portion of the legal
 fees expended by the ABA in the lawsuit.
     5. The ABA and Plaintiffs and their counsel agree that all information
 produced by Barnes & Noble and Borders during the course of the lawsuit in
 whatever form, and all copies of depositions taken in the lawsuit, and (unless
 otherwise agreed) any work product containing or attaching in whole or
 substantial part such information shall promptly be destroyed, after which the
 ABA's and Plaintiffs' counsel will so certify. The ABA's and Plaintiffs'
 counsel will certify that all copies of such depositions have been returned
 from all court reporting services and all persons affiliated in any way with
 any plaintiff in the lawsuit. The ABA's and Plaintiffs' counsel will secure
 the return of all documents produced by Barnes & Noble and Borders in the
 lawsuit which have been lodged with the Court and all deposition transcripts
 which have been lodged with the Court, for destruction in a similar fashion.
 Nothing in this paragraph shall apply to the transcripts of any court
 proceedings or to any filings with the court.
     6. The parties agree to issue the attached Joint Statement announcing that
 they have settled the lawsuit on the terms contained in this agreement, with a
 copy of this agreement attached to the joint statement.
     7. The parties agree that this Settlement Agreement will be governed by
 California law.
     8. All parties hereby represent and warrant that they have been informed
 of the terms of this Settlement Agreement by their counsel and have knowingly
 and intentionally waived their claims as specified herein pursuant to the
 advice of counsel.
     9. All parties agree that this Settlement Agreement is the complete
 settlement agreement between the parties and may not be modified in any way
 without a separate written agreement executed by all parties.
 
     JOINT STATEMENT
     Barnes & Noble, the Borders Group, and the American Booksellers'
 Association reached agreement today ending their lawsuit. A copy of that
 agreement is attached.
 
     ATTACHMENT A
     The 26 Individual Plaintiffs
     Book House of Stuyvesant Plaza, Inc.; The Book Shop, Inc.; The Book Stall
 at Chestnut Court, Inc.; Book Soup, Inc., B&R Books, Inc., dba Little
 Professor Book Center; Changing Hands Bookstore, Inc.; Cody's Books, Inc.;
 College Book Company of San Antonio, Inc., dba The Twig, Booksmith of San
 Antonio and Red Balloon Children's Book Store; Books by Mail, LLC;
 Copperfield's Books, Inc. and Petaluma Gold, dba Copperfield's Books; Dutton's
 Brentwood Books, Inc.; Edward B. Elrod, Sole Proprietor and Successor In
 Interest, dba Ventura Book Store; Elliott Bay Book Company, a corporation;
 Third Place Company LLC, dba Elliott Bay Book Company; The Happy Bookseller;
 Inkwood, Inc., dba Inkwood Books; Kepler Corporation, dba Kepler's Books &
 Magazines; Ketterson's Old Market Bookstore; Left Bank Books, Inc.; Lemuria,
 Inc.; Midnight Special Bookstore, Inc.; Our Gang, Inc., dba Freddy's Feed and
 Read; Sam Weller's Books, Inc., dba Sam Weller's Zion Bookstore; Tattered
 Cover, Inc.; The Squirrel Hill Bookstore; Thunderbird Bookshops, Inc.; Tiger &
 Company, Inc, dba Chapters: A Literary Bookstore; and Women & Children First,
 Inc.
 
     The Barnes & Noble Entities
     Barnes & Noble, Inc.; Barnes & Noble Booksellers, Inc.; B. Dalton
 Bookseller, Inc.; Doubleday Book Shops, Inc.; Marboro Books Corp.;
 Barnesandnoble.com LLC, Barnes & Noble Online, Inc. The Borders Entities
 Borders Group, Inc.; Borders, Inc.; Walden Book Company, Inc.; Borders
 Online, Inc.; Borders Fulfillment, Inc.; and The Library, Ltd.
 
      ATTORNEYS FOR THE ABA AND PLAINTIFFS
      DAVID W. DEBRUIN
      BRUCE V. SPIVA
      WILLIAM M. HOHENGARTEN
      JENNER & BLOCK
      601 13th Street, N.W.
      Washington, D.C. 20005
      DOUGLAS R. YOUNG (SB #73248)
      FARELLA, BRAUN & MARTEL LLP
      235 Montgomery Street
      30th Floor, Russ Building
      San Francisco, California 94104
 
      ATTORNEYS FOR BARNES & NOBLE
      DANIEL M. PETROCELLI (SB #97802)
      ALAN RADER (SB #45789)
      DAVID R. GARCIA (SB #151349)
      O'MELVENY & MYERS LLP
      1999 Avenue of the Stars, Seventh Floor
      Los Angeles, California 90067-6035
 
      ATTORNEYS FOR THE BORDERS GROUP
      REGINALD D. STEER (SB #56324)
      ANDREW M. MASTIN (SB #154860)
      RICHARD J. NELSON (SB #141658)
      SKJERVEN MORRILL MacPHERSON LLP
      Three Embarcadero Center, 28th Floor
      San Francisco, California 94111
 
 SOURCE  American Booksellers Association