Monday, July 31, 2006

Plea to 'My' Named Plaintiffs: Demand an Explanation from Your Lawyers

This post is addressed directly to three of my writer friends -- Gerald Posner, Michael Castleman, and Jay Feldman -- whom I recruited six years ago to become named plaintiffs in a copyright class action against Gale Group, a huge, shameless, multinational, serial infringer of freelancers' works.

This also is addressed to Karen Leonard, who helps run the literary affairs of a fourth friend, the late Jessica Mitford, and to the Mitford heirs. "Decca" Mitford, one of the grand ladies of letters and of hellraising, was a member of the advisory board of the National Writers Union when I was the NWU's assistant director. She not only lent her name to the cause; she showed up at events and graciously mingled and shared her wisdom with less-accomplished colleagues.

When Spencer Hosie and Gary Fergus assigned me in 2000 to help put together a slate of class representatives for what became the first of the class actions later consolidated into the settlement I am now opposing, I immediately thought of Decca, who had died four years earlier. I contacted her widower, retired civil rights and labor lawyer Bob Treuhaft, about documented knockoffs of Decca's last major book, The American Way of Birth, and he instantly grasped what I was talking about and signed on. (Mr. Treuhaft himself died the next year.)

As everyone knows, the consolidated class action settlement was approved last year in federal district court, and I objected. While I was launching the objection project, I explained what had gone wrong to my friends Posner, Castleman, and Feldman, and to the Mitford estate, and urged them to join us. Each declined.

I understand that one factor playing into their refusal to reverse course may be that Paragraph 9 of the settlement agreement bars the named plaintiffs from "actions intended to ... undermine" it. Similarly, the associational plaintiffs -- the Authors Guild, the American Society of Journalists and Authors, and the NWU -- must "support and publicly profess their support" of the settlement.

Part of my job now, as one of the ten objectors who stand an excellent chance of prevailing in our appeal of the settlement approval, is simply to shed the light of day on what your lawyers, your organizations, and -- by named association -- you have wrought. The district court judge, George Daniels, did not take a hard enough look at the evidence of the blatant inadequacy and unfairness of the settlement, and at the collusive process of the defense group and the authors' groups that negotiated it. However, I am confident that the Second Circuit Court of Appeals panel will.

But there's another factor that has nothing to do with winning and losing. It has to do, instead, with a devastating new piece of that evidence and what that means, at its core, about why Decca Mitford, Gerald Posner, Michael Castleman, and Jay Feldman involved themselves in the National Writers Union in the first place. You joined the NWU, and this case, to band together with fellow writers and create a healthier publishing environment for all of us. Your objective was not to partner with the very publishing entities that treat the work of independent creators as if it were the publishers' private property.

OK, so the settlement happened. You can't publicly "undermine" it even though you might privately acknowledge at this point that it stinks.

I therefore am not asking you to undermine. I'm asking you to explain. As class representatives, you have a duty to communicate how the C Reduction came to be and where we stand with its fast-approaching probability. (The scandal over the manipulation of claims data by the settlement lawyers has been discussed at length on this blog. Read all about it. Soon our side will be filing a new motion or motions on the lawyers' ham-handed attempts to "correct" their earlier-submitted briefs and airbrush the record.)

Explain. Or at least demand that your lawyers explain. Their explanation to date is not credible.

The trigger for the C Reduction is $11.8 million in total claims value. For the entire history of the objections, in the district and appellate courts, your lawyers were saying that there was "no realistic chance" that the C Reduction could happen; that such speculation was "inconceivable," "absurd."

Yet their own current "prima facie valid claims" number is $10.76 million, not that much under $11.8 million, and they've admitted that this number is misleadingly low because of all the "undocumented" registered-copyright claims that got provisionally valued as C's.

How do you square "absurd" with this development?

Come on, Gerald, Michael, Jay, and the Mitford heirs. None of us like to own up to it after the wool has been pulled over our eyes. But there's something larger at stake here than your vanity. A little something like the worst sellout ever of authors' rights. Please do what you can before it's too late.

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