GameStop's alleged practice of selling games played by employees as new could be a violation of the class action lawsuit settlement that the national retailer agreed to, according to the attorney who handled the case.

Reached for comment today, GameStop officials said they fulfilled the stipulations outlined in the 2003 suit. Chris Olivera, vice president, corporate communications for GameStop, declined to say whether the lawsuit would be relevant to the practice of an employee-played game being sold as new.

"The company does not comment on current or anticipated legal actions," he said.

Under the terms of the 2003 agreement, GameStop had to post a notice in its stores telling customers that all video games may have been used and returned in accordance with the store's return policy. The signs essentially warned customers that the games they thought they were buying new, may have actually been previous played.

While the chain no longer accepts games that have been opened for return, that same sign could stand as a warning to customers about games previously played by store employees. But spot checks by Kotaku at a number of stores across the country show the chain is no longer posting the signs.


Seth Safier, a partner with Gutride Safier LLP based in San Francisco, and the attorney who handled the original class action, says that may be a violation of the court order.

"I've reviewed both the court order and the final settlement agrement in the 2002 lawsuit, and it's my opinion that GameStop is still obligated to maintain the language and in not doing so they are both in violation of the agreement and the court's order approving the settlement," he said.

Safier said that allegations that GameStop allows employees to take games home to play them and then later sells them as new should fall under the same court order, calling the alleged practice "unlawful, unfair and deceptive."


"It's the same issue," he said, "irrespective of whether a games was used by a customer or one of GameStop's employees. It's still a used game being sold as new."

According to a number of GameStop employees and managers across the country, all of whom spoke to Kotaku on the condition of anonymity, new copies of games rented out to employees are often mixed in with the unplayed display copies. And both are sold at "new" prices.


Olivera told Kotaku last month that the company is looking into whether the practice of selling games that had been checked-out by employees as new is "something isolated or is something that is a practice within certain locations."

Safier said his firm is in the process of investigating the allegations and the issues. The firm, he said, "may have to bring a motion to enforce the settlement agreement."


"The settlement, we thought, included an adequate disclosure," he said. "Without that disclosure, GameStop may be in violation of the law."