Friday, May 20, 2005

Highlights from Today's Reply Brief (Part 5)

Regarding our argument that plaintiffs avoid the issue of possible zero compensation to Category C by asserting it is "remote" and do not discuss the other prejudicial treatments of B's and C's versus A's:

The motion presents that a settlement proposing no compensation for a portion of the class raises serious problems. The response is simply the unsupported opinion that the possibility of Category C claims getting nothing is very remote. They do not address the possibility of those claims, already receiving very modest compensation, having their compensation reduced as a result of A and B claims. Since they don't seem to argue the premise that it would be a serious problem if the C's get nothing, their position rests on the reliability of their expectation that it is remote. They claim to have justifying information, but none of it is provided. They ignore the more important point. The settlement will be approved before we, or the C's, learn whether the expectations were valid. (Claims are not due until September 30, 2005.) If they are not correct the C's are out of luck, and out of compensation. Further C's may be dissuaded from filing a claim, faced with small compensation and the threat that it will be reduced or eliminated. Given the seriousness of this issue it seems reasonable to require them to present their justifying studies or information before C's have to decide whether to object or opt out.

The motion noted another provision that was prejudicial to B's and C's compared to A's. The opposition does not discuss this provision at all.

The motion questioned the meaning of the cutoff date between B's and C's of December 31, 2002. The opposition says this is to keep writers from registering and thus increasing their compensation, which plaintiffs call "gaming the system." Why should a class member be prohibited by an arbitrary deadline from increasing their compensation? Why would that deadline be more than two years before the settlement was even announced, so that class members knew how to "game the system"? This provision reflects a fundamental misunderstanding of the registration issue....

The full brief can be viewed at Comments can be posted here or emailed to me at


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