Monday, June 27, 2005

Is This the Best They Can Do?

In yesterday’s “Open Letter to the Freelance Community” (, attorney Charles Chalmers referred to class counsel’s “hide the ball” approach to gaining approval of their defective settlement.

There’s no shortage of sports metaphors to use in describing the settlement defenders’ tactics. Unlike in basketball, without a shot clock governing the approval schedule, they’re deep into their four-corner slowdown offense.

Thus when Chalmers asked them to provide some documents, he was just ignored. This wasn’t esoteric stuff, mind you; one requested document was a copy of the August 2000 Posner v. Gale Group complaint, the first of the copyright class actions that were later consolidated. (The original complaint is missing from the consolidated records in the district court clerk's files in New York.)

After four days of being ignored, Chalmers filed with the court a motion for the production of information so that all of us could have an opportunity to evaluate the settlement more intelligently before the July 15 deadline to opt out or object.

In a desperate response to an impediment to settlement approval that they didn’t anticipate (although anyone who knew the first thing about my 11 years of work in this field could have anticipated it), plaintiffs’ counsel next resorted to elbows and knees. Chalmers, they said in an opposition brief last Friday, is a “professional objector.” Previously the former president of the American Society of Journalists and Authors, Jim Morrison, had floated the same canard in widely distributed emails.

Make no mistake, the term “professional objector” is a slur. As Chalmers noted in our reply brief today, “We doubt this Court would stand for a minute with counsel for a party referring to an opposing counsel by derogatory terms, like ‘sleazy attorney’...” A professional objector is a lawyer who tries to “extract a fee” by filing unhelpful, generic, or “canned” objections.

But there’s another term of art more applicable to Charles Chalmers’ work: "beneficial objector.” He has participated as counsel for an objector in six cases prior to this one. In five of them his efforts resulted in changed settlements or reduced attorneys’ fees; in the sixth, he recently filed a petition for certiorari with the U.S. Supreme Court. As the client who approached him -- it wasn’t the other way around -- I can attest that Chalmers, who has never been criticized by a court, takes very seriously his professional obligation to present non-frivolous arguments.

In one sense I welcome class counsel’s cliché-driven name-calling. Tactics like this help expose the settlement for how bad it is.


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