While readers of Marvel Comics may sometimes get frustrated with the months long delays for the latest issues of some titles, few have ever seriously entertained legal action while waiting on the latest issue of the Kevin Smith "Daredevil" run. On Monday, a San Francisco comic retailer took that step.
Brian Hibbs, owner of Comix Experience, filed a class action law suit in New York Supreme Court on Monday on behalf of the roughly 3500 American comic book shops, alleging Marvel Enterprises, Inc. has repeatedly breached its Terms of Sale in its dealings with American comic shops.
According to Marvel's Terms of Sale, available in the retailer section of Diamond Comics' Web site, "Orders for Marvel Products cannot be canceled or reduced, except in the following circumstances:
"(i) Delivered more than thirty (30) days after the solicited on-sale date specified at the time of purchase;
"(ii) Product contains significant editorial or manufacturing differences from the solicited content
(iii) Product containing distinct seasonal or holiday content is delivered more than one (1) week after the close of the season or holiday."
The suit alleges Marvel has systematically refused to allow retailers to cancel or modify their orders, despite circumstances that qualify with the stated Terms of Sale. As comic retailers receive comics from Diamond on a non-returnable basis, that means the retailer then ends up stuck with the books.
"I've been concerned," Hibbs said in a statement released Monday, "since the middle of 2001 when I began to notice how many Marvel comics were shipping late, or with different content or creative teams than we had ordered. These late and mis-solicited titles were clearly costing me sales. I tracked just the 30+ day late shipping books for an eight-month period and, using the sales charts estimates on ICV2 (http://icv2.com/index.html) I was shocked to find that Marvel shipped over $6.2 million dollars in contractually late material!"
"I would have given anything to have not filed this suit," Hibbs said, "but repeated queries to both Marvel and their distributor, Diamond Comics, brought no satisfaction in them living up to their Terms of Sale. What frustrates me is that Marvel set those terms themselves, and they're not living up to their most basic promises."