Monday, August 29, 2005

Can't Hide Your Lying Eyes

My August 22 post, “Writers Orgs’ Silence: Curiouser and Curiouser,”, labeled the associations’ failure to post prominently the supplemental notice, as required by Judge Daniels’ July 28 order, “nothing short of stunning.”

Here’s the rest of the story.

As I noted last week, plaintiffs’ lawyer Michael Boni faxed an August 15 letter to the court in which he assured the judge that "two of the Associational Plaintiffs posted the supplemental notice on their websites on Friday, August 12, 2005, and the third on Saturday morning, August 13." This was in response to an application by Charles Chalmers, the objectors’ attorney, for what is known as an order to show cause. In an attempt to keep his response out of the official court record, Boni did not deign to answer our formal pleading with a formal pleading. This offhand, lackadaisacal approach is characteristic of the plaintiffs’ lawyers. It exposes, at bottom, contempt for the community of freelance writers they are supposed to be representing.

Not only that, but Boni’s statements were “false,” as Chalmers gently informed the court in a renewed application for an order to show cause on August 18.

So on August 24, another plaintiffs’ lawyer, Gary Fergus, faxed Judge Daniels again. “I informed Mr. Boni that the NWU advised me the notice was posted on August 12. However, because of miscommunications within the NWU and August vacations, the posting was not made until yesterday, August 22, 2005,” Fergus wrote.

Fergus can’t even keep his own lies straight. “Yesterday” from a letter dated August 24 (which is both in the fax machine printout at the top of the page and in the letter text) would be August 23, not August 22. But, in fact, as our blog has reported, the NWU’s notice first went up on August 24, the very day of the Fergus fax.

But that’s not all. Fergus also insisted that the notice of another association, ASJA, was appropriately “prominent.” ASJA has a secondary link, in tiny type, to a March 29 press release touting the original settlement (with no mention of the July 28 amendment) as the greatest thing since sliced bread. There is no mention of the amendment or the supplemental notice on the ASJA home page. Unless something has changed in the last five minutes, there still isn’t.

Some readers have asked me about attorney malpractice. Basically, I’m told, there’s no such thing in class actions, for technical reasons. There is however, the ability to stop a bad settlement. Which this is.


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