Friday, July 21, 2006

Mystery of the Incredible Shrinking Category C Claimant Declarant

A mystifying exchange with Pamela Ferris-Olson, a writer in Centerville, Ohio, has even the most seasoned Kremlinologists here shaking our heads.

Ferris-Olson freelances, principally for the Dayton Daily News. Last September she was one of 11 absent class members (that is, non-named plaintiffs) who filed almost identical declarations with the district court in support of the plaintiffs’ lawyers’ brief arguing for approval of the class-action copyright settlement. They all said, basically, the settlement is fair and reasonable, yadda yadda yadda, and here’s my personal stake in it.

Like the other 10, Ferris-Olson said she had a large number of claims in the “C” category (unregistered copyrights) and estimated her claim award under the proposed settlement. Ferris-Olson noted a total of 1,548 eligible works with expected compensation of $9,962.50.

In an email to Ferris-Olson, I pointed out that lawyers for both sides of the settlement were admitting that the settlement agreement’s “C Reduction” is in danger of kicking in.

Previously those same lawyers had mocked the objectors’ argument over the possibility of a C Reduction. This is a provision whereby, if claims exceed $11.8 million, payments for unregistered works would get reduced -- if necessary, reduced all the way to zero -- before the far less numerous and far higher-paying registered categories, A and B, get touched.

For a solid year the UnSettlement-meisters said, nah, there was no way the C Reduction would ever be triggered. The very idea was “absurd.”

Now they’ve changed their tune. As we speak, they’re trying to “correct” their briefs to the Second Circuit Court of Appeals.

All of which raises an obvious question for the 11 declarants of September 2005, who told the district court all about their anticipated windfalls for C claims. These amounts ranged from Ferris-Olson’s $9,962.50 to $22,000. (One of the 11 had registered claims in addition to unregistered ones, and projected a grand total of $110,000.)

My email to Ferris-Olson said: “I would like your reactions to this development. I think your concern should match that of the objectors, for two reasons. First, the claim award numbers cited above for each of you are clearly in jeopardy. Second, the information that formed the basis for your sworn statements to the court in September 2005 have [sic] been shown to be erroneous. Again, compare the previous assertions by the lawyers with the current data. Do you feel misused?”

In response, Pamela Ferris-Olson cranked and harumphed. She also railed against the excessive power of the bosses in the publisher-author relationship. Over the last dozen years I've learned that the latter is a ritual trope of tough-guy writers’ rights talk by people who don’t do anything about it.

Ferris-Olson did not, however, answer the question.

“I have always been unsure as to whether I’d ever receive compensation,” she said.

I told Ferris-Olson that I was dumbfounded by her answer. “Did you ask if you would receive the $9,962.50 cited as the estimate of your total claims (or any substantial fraction thereof) in the declaration drafted for you, and were you told, ‘Oh maybe, maybe not; who knows?’, and did you then decide to sign it anyway? Do you now intend to get further information from the lawyers on whether you are actually in line to receive this money, or whether the claims data show that the C Reduction will reduce or eliminate altogether your estimated claim award?”

Ferris-Olson: “I think the lawyers were open. They explained that if the settlement was finalized that the money would be paid out in the way you have outlined. They also explained that there might be delays which is what has happened. My lack of optimism comes from experience with past class actions. I’ve been a member of a ‘class’ dealing with everything from phone providers to clothing companies. I would be notified that I was a member and my participation netted literally a dollar or two or some trivial item such as a cookbook. The remainder of my low expectations come from the treatment freelancers receive from newspapers including pay. This made me particularly reluctant to fill out the detailed claim. It took a great deal of time and I expected I’d probably receive no compensation.”

Muchnick: “Delays caused by the grinding wheels of the court system are one thing; an active anticipation that the numbers would not play out pretty much as you outlined in your declaration is quite another. Please clarify. To paraphrase, the lawyers said in their court papers that the possibility of a C Reduction was a wild theoretical fantasy of the objectors. Now they are admitting otherwise. Did the C Reduction, and what that might mean for your claims and for the accuracy of the statements in your declaration, arise in the discussion and preparation of your declaration? That's my first question. My second question is: Given your lack of optimism that anything very useful would come out of the settlement, why did you give it your imprimatur by filing a declaration with the court in support of it?”

Ferris-Olson: “I hoped that I might receive something out of the settlement. If I had been totally pessimistic about the outcome I would not have invested multiple hours filling out the paperwork documenting my claim. I have never met any of the lawyers, other members of the class, or you. I am unaware of your agendas. I can still hope that someday I will see some form of compensation for the time I invested in submitting my claim. And, as long as I am making wishes, I’d like to get assurances that I would be paid a guaranteed standard for my work including compensation for the use of my creative property.”

Muchnick: “In your declaration to the court, you stated in conclusion (paragraph 5): ‘I believe the proposed settlement is fair, adequate and reasonable for me as a class member, and support final approval of the settlement and plan of allocation so that I can receive my share of the Settlement proceeds as approved by the District Court.’ Do you hold to the belief that the settlement is fair, adequate and reasonable, now that it is possible (according to the lawyers for whom you submitted this declaration) or quite likely (according to my own analysis of the sketchy claims data that those lawyers are closely holding) that your share of the settlement proceeds will be less than $9,962.50 -- maybe even zero? Finally, I understand that you’ve never met the lawyers in person. But you must have been contacted by somebody on the plaintiffs’ team to supply this declaration -- perhaps a representative of one of the associational plaintiff organizations, or a staff assistant at one of the lawyers’ law firms. Please enlighten me on how the contact came about. Or are you telling me that you simply stepped forward of your own volition, volunteered to write a supporting declaration for a settlement that you ‘hoped’ would turn out a particular way, and drafted and filed it all by yourself? You can draw whatever conclusions you want about the agendas of various players -- mine is transparent, published publicly at my blog.”

Ferris-Olson: “I am not interested in continuing this conversation …”

If form holds, Ms. Ferris-Olson now will proceed to get angry at your humble blogger for having chosen to share this information with the freelancers around the world who stand to be affected by her declaration -- a key piece of the public record whose very premise has been shown to be false, whether innocently or otherwise.

So be it. Like named plaintiffs Tom “I’m Mad As Hell And I’m Not Going to Take it Any More” Dunkel ( and Paula “Pinocchio” McDonald (, Ferris-Olson would better serve herself and the class by taking a hard look at the lawyers who concocted this farce, and at the writers’ organizations that rolled over for it.


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