Saturday, August 05, 2006

VIII. THE APPELLEES' ACTIONS AND EXPLANATIONS ARE QUESTIONABLE: 'Why Do They Refuse to Candidly Describe What Has Actually Happened?'

The objectors' motion to strike the settlement parties' "corrected" briefs is viewable at http:/,, and It shortly will be viewable in a single file, at

Below is the eighth in a series of excerpts from that document.


Counsel for all parties went through the process of determining the record for a Joint Appendix in March 2006. (Declaration, Para. 2.) By that time the appellees' counsel had the last of the "initial claim award reports" required by the Memorandum which would state the final value of the claims except for defective but curable claims. They never mentioned supplementing the record. (Id.)

Appellees' counsel are experienced. They know that inserting outside-of-the-record facts in their briefs is improper, and sure to provoke close examination. Would they not have taken steps to insure the accuracy of the information? They knew that the proper procedure was to ask appellants for a stipulation.

The error allegedly made by the Administrator was plainly in front of them before they used the information. The mistake they say the Administrator made produced a report exactly like the one called for in the Memorandum, which they had received weekly throughout the claims period. The faulty $10.76 million figure had to be virtually the same figure they had received in the last weekly report after the close of the claims period. Is it believable that they did not observe this, thereby being alerted to the "mistake" of the Administrator.

Appellees did not reveal the error until challenged. Appellants' counsel asked if the figures were wrong on June 20th. (Declaration, Exhibit B, p. B 1.) He did not receive an answer until June 30th.
(Declaration, Exhibit B, p. B 9-10.) The reason given for the delay was that counsel for the defendants was out of town. (Declaration, Exhibit B, p. B 2.) To get that answer he had to write:

I must have the truth immediately. I hope to receive from you both a clear explanation of the true facts today. I will not further delay any action that appears appropriate under the circumstances.

(Declaration, Exhibit B, p. B 8.) Prior to that, on June 28th, the plaintiffs and defendants tried to agree on the idea of a stipulation to strike the new facts without explaining whether they were right or wrong. (Declaration, Exhibit B, p. B 4-5.) Appellants' counsel responded to that:

[P]lease respond to my first letter of June 20th. As I read the settlement administration memorandum, the Administrator's initial review of the claims counted claims for registered works submitted without documentation as C claims. If that methodology resulted in the figures that you stated we have a problem beyond simply striking improper material from a brief.

(Declaration, Exhibit B, p. B 6.) Still it was two more days, and only after the threat quoted above, that appellees disclosed that the information was wrong.

The parties deny that appellants played any role in discovery of the error of the facts in their briefs.
(Declaration, Exhibit B, p. B 17.) Yet, when appellants' counsel raised the question, counsel for plaintiffs-appellees said he could not answer because counsel for defendants-appellees was out of town. (Declaration, Exhibit B, p. B 2.) Ten days later, it is the same counsel for plaintiffs-appellees who provided the explanation. (Declaration, Exhibit B, p. B 9-10.)

This history is disquieting. Appellants asked for an explanation of these events. They posed several questions, including:

1. What is the explanation from the Administrator for its failure to provide the calculation that you explicitly requested?

2. Have you received the reports called for by the claims memorandum?

3. Assuming that you have, it seems the number presented in the last report, covering all filed claims, would be very similar to the one you reported believing that it was a different calculation. Didn't anyone notice the similarity, and if not, why not?

4. Why didn't you tell me about the problem when I first raised the question, instead of waiting more than a week and providing it only when I threatened a motion?

(Declaration, Exhibit B, p. B 15-16.) The appellees refuse to answer or provide any information which would explain the events, saying it was an effort at "discovery." (Declaration, Exhibit B, p. B 17.)

The events arouse suspicion, and the matter is too important to ignore. The appellees say that appellants' counsel had nothing to do with their discovery that the information was wrong. That means they knew it was wrong before his letter of June 20th. Why did they delay disclosing it until June 30th? Why do they refuse to candidly describe what has actually happened?
In light of the seriousness of what has transpired, and the circumstantial evidence that raises questions about appellees' actions and intentions, requiring a more detailed explanation is appropriate.



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