Technically, these are not new and the seller has these improperly listed. By Amazon guidelines, these wouldn't even qualify as "Like New." I'm surprised a seller with such a high number of feedback is pulling a stunt like this, since they set themselves up for A-Z claims since the item is not new in retail packaging.
"New: Unless specified in the product title, all new video game items are assumed to be in full retail packaging. Bulk, plain white box, or other types of packaging are not allowed unless specifically called out in the product title."
Condition notes =/= product title...