Wednesday, September 28, 2005

Co-Objector Judith Trotsky's Report from Yesterday's Hearing

Approximately 20 lawyers were present in Federal Court yesterday, September 27, as Judge George Daniels heard Final Arguments for, and against, approval of the settlement between writers and publishers.

There were two known writers -- and two anonymous individuals who disappeared at the lunch break. I was one of the writers, the other was from the Authors Guild who, in various conversations, told me that many Guild members didn't understand the agreement, couldn't decipher the legal notices they received, and didn't see why they had to file.

Some, he said, had never heard of the lawsuit at all.

These are important points. They are considered in this report.


There were challenges from two writers, delivered through their lawyers: one, a Canadian, asked for an extension of the opt out date.

To which one of the Plaintiff attorneys insisted "the notice program was incredibly reasonable and satisfied all the requirements." Nevertheless, another Plaintiff attorney said, they did not oppose the extension. Saying "the legal notice was sufficient," Judge Daniels denied it.

A second challenge came from writer Mark Shields who is involved in a similar lawsuit in Washington, D.C. The legal issues are complicated. Those who wish more information can contact his attorney, James Wilcox, Jr., at


The conflicts over final approval began with motions forDiscovery from Objector's attorney Charles Chalmers who noted there had never been any. Among Chalmers's requests was information on the fees paid to mediator Kenneth Feinberg, and on what databases were involved.

Questioned by the Judge on what he thought discovery would disclose, Chalmers cited the lack of knowledge -- ultimately uncovered -- of HighBeam and Amazon violations. He also questioned Feinberg's "success fee." This was unusual. And if the fee was unusually high that might have some influence on Feinberg's decisions.

Daniel's response: all these questions were "theoretical." Chalmers noted that, throughout these proceedings, he felt as if he were "arguing against you." Daniels response: "I ask tough questions."

Ultimately denying the attorney's requests, the Judge called them a "fishing expedition," also noting that settlement proceedings were not a lawsuit where Discoverywas part of the action. "That's not the status of the case at this point." And "There is no evidence that the actions of the mediators (cq) were affected in a way" that was detrimental to the interests of the Plaintiffs.

hough arguments continued for some time, ultimately theJudge ruled that this was a "late stage at this point," and complying with Discovery requests would mean the Hearing would be further delayed. "Why," he asked, "are the objections so serious and widespread" they would "preclude anyone from recovery from the Settlement" or the ability to opt out?

Chalmers pointed out the difficulty most writers who have in launching their own lawsuits, and obtaining better terms. "Class actions, by their nature, are small claims."Given copyright laws, it's impossible to get "decent counsel" to represent the writer on "small potato claims."

Though the discussion went back and forth, again for sometime, the Judge insisted that the "potential benefit" for everyone was better obtained in the Settlement.

Other points -- return of the money to the publishers if there are not enough claims -- were similarly treated. Chalmers argued. The Judge posed "questions."

"Your Honor," said Plaintiff Attorney Michael Boni, you"have done a great job in making our arguments for us."

Having said that, this:

"Virtually everything was litigated ... There was Discovery. The Mediator almost had to make a motion to compel."

Chalmers questions were a "fishing expedition."

Motions for Discovery denied by the Judge.



At some point, Kenneth Feinberg entered the courtroom. Hugs all around from the attorneys. Feinberg hugged back.

No hugs for me. Putting my body between the Mediator and the Lawyers, I stuck out my hand and introduced myself.

I had a question.

Throughout mediation, members of ASJA and NWU were not informed of the proceedings. The excuse used: confidentiality. Did this also apply to the Defendants? Weren't they in contact with their own attorneys throughout?

Feinberg's eyes widened. As clients, we were entitled to that information.

At the start of the afternoon session, I asked for and received permission to speak. Conveying Feinberg's statement, I told the Judge that, in spite of repeated online questions from me during the mediation, the confidentiality rule was invoked by ASJA's representative. I had never received any information about what was happening. Certainly I would have objected to certain provisions.

I also noted the settlement is so complicated, many writers don't understand it; and that many -- including me -- are very much against it.

Plaintiff attorney Boni responded that the Settlement had "unanimous approval," that ASJA's representative got "thank you" emails, that he had conferred "with his council" at ASJA, and that there was no opposition to the Settlement.

The Judge made no comment. The proceeding went on.


Now the Objectors' attorney brought up the "license by default." People who don't put in a claim have "no idea"they're losing their exclusive rights, Chalmers argued. The Plaintiff attorneys say this is "just a release." That's a "frivolous argument," Chalmers said. Further, the right of one databaseto sublicense to others is not even mentioned.

In other words, writers have not been made aware of the seriousness of this provision. The spread of notice itself is insufficient. Out of approximately 45,000 notices mailed, 13,000 were returned by the Post Office as "undeliverable."

"Class counsel," he said, "sold out their clients from beginning to end. It was collusion."

Boni's response: it's a "release." It doesn't convey property ownership.


Finally, at 4:30 p.m., the Judge rendered his decision.

The Settlement is "not a product of collusion." He has examined the negotiation process as well as the terms of the Settlement. It is the "product of very aggressive and thorough examination and debate" between the parties. "The objections do not merit further delay or not granting final approval of the settlement..."

Dissatisfaction is "overwhelmingly outnumbered by those whobelieve it's a fair and adequate settlement that assures recovery for all class members involved." It also allows recovery for all claimants who wouldn't otherwise recover anything."

The process was complicated, extensive and hard-fought." There was the "highest quality of mediation services..."

There is no legitimate attack on the extent of notice..."

The objections were hypothetical, purely speculative or invalid and inconsistent with the record."

The class is certified.

The Settlement is approved.

Attorney fees are approved.

Each individual named plaintiff is awarded $2,000.


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