‘Class’ Counsel’s Two Strongest Arguments: ‘Ad’ And ‘Hominem’

The lawyers for the purported class representatives of the proposed settlement go to the trouble of telling the court in their “final” papers that the objectors’ attorney, Charles Chalmers, has the website address http://www.classobjector.com/. This is the second time they’ve made this powerful point. Months ago former ASJA president Jim Morrison was whispering on the “private” ASJA online forum -- under threat of expulsion if anyone took his words outside -- the slur that Chalmers is a “professional objector.” I’ve worked with Chalmers for the last six months and I’ve never seen an attorney with stricter ethical standards. Those who would suggest otherwise, and must resort to innuendo in order to do so, are all very funny, in a pathetic way.

Meanwhile these “class” lawyers also told the court (at page 36 of the brief in support of the plaintiffs’ motion for for final settlement approval) that your humble blogger, who was a consultant to co-lead counsel Hosie Frost Large & McArthur from March 2000 through February 2001, “chose to do nothing but lie in wait” over the ensuing four years. This is a virtual word-for-word repeat of language first offered in their earlier memorandum in opposition to our motion to compel (“chose instead to lie in wait,” p. 3, footnote 3).

I responded by filing with the court a partial record of my extensive email exchanges with Spencer Hosie from June 25, 2001, through January 25, 2005. Blog readers who are interested in this piece of trivia can email me (info@muchnick.net) and I will send them my declaration in support of objections to the settlement, along with Exhibit NN thereto, which is referenced at paragraph 37, pp. 18-19.

· On June 25, 2001, after I informed him of the Supreme Court ruling in Tasini v. New York Times, Hosie wrote to me, “Good news; we are good to go.”

· On June 27, 2001, I wrote to Hosie that I expected “to be an interested spectator as more of this unfolds.”

· On June 29, 2001, Hosie wrote back, “Thanks. A very fine [Tasini] opinion, and the court cited the Posner amices brief. We are off and running."

· On January 11, 2002, Hosie wrote to me, “And, peculiar as it may seem, this case is about as straightforward as they come.”

· On May 9, 2002, Hosie wrote to me, “The settlement mediation is going no where, and we will have to try the case, which is my preference in any event."

· I wrote back the same day, “I’m sure you.ll be advocating my view that the clock on willfulness should start ticking not with the Supreme Court decision last June but with the many 'constructive notice' letters sent years ago by authors and authors’ organizations."

· Hosie wrote back 10 minutes later, “I do agree on willfulness. Our challenge will lie in crafting a prospective remedy that we can impose through the suit. No more all rights contracts.”

On January 25, 2005, I wrote to Hosie: “Hi, hope all's well with you and yours. Once a year, along with checking the groundhog’s shadow, I inquire as to whether there's news in the consolidated class action mediation. The word on the cyberstreet is that a settlement is imminent. Then again, that's been the word for years. Candidly, I’m troubled by the fact that it’s obvious the defendants have been using the passage of time to launch new infringing products and partnerships that effectively become 'facts on the ground.' This is the same dynamic that persisted with the Tasini case before it reached the Supreme Court, with The New York Times and other publishers using a standstill in litigation to coerce rather than negotiate prospective solutions in the form of all-rights contracts. If you’re at liberty to offer any information or insights at this point, I’d appreciate it.”

I received no response of any kind.