GBS: Fairness Hearing Procedures Set, Parties to Respond

Judge Chin has just issued an order governing the procedures for appearances at the fairness hearing:

CHIN, District Judge

September 8, 2009 was the deadline by which objections and amicus curiae briefs were to be filed with the Court. The Court has received approximately four hundred submissions — objections to the proposed settlement, statements in support of the proposed settlement, and briefs from amicus curiae. All the submissions have been uploaded onto the Court’s electronic filing system.

In light of the volume of submissions, and the apparent public interest in the case, the following procedures shall govern the fairness hearing:

  1. By October 2, 2009 the parties shall respond in writing to the filings in this case.
  2. The fairness hearing shall proceed as scheduled on October 7, 2009 at 10:00 a.m.
  3. Any person who wishes to speak at the fairness hearing must submit a request to speak by sending an email to by 5:00 p.m. EDT on September 21, 2009. The request shall include a brief statement of interest. Depending on the number of people who wish to be heard in person, the Court may limit both the number of speakers and the time any particular person will be permitted to speak. Those selected to speak will be notified by the Court by September 25, 2009 by return email. The parties to the case and the United States need not submit a request to speak; they will be given an opportunity to speak. Of course, the Court will review all written submissions; objectors, supporters, and amici are not required to appear at the hearing for their views to be considered.
  4. The parties shall post a copy of this order on the settlement website forthwith.
  5. Details regarding courtroom seating, press access, and an overflow room will be provided in a later order.


Dated: New York, New York
September 16, 2009

United States District Judge

Note in particular point 1, which answers the question of how and when Google and the named plaintiffs would respond to the objections.

I continue to be impressed with Judge Chin’s work on the case. He’s been pragmatic about procedures, but rigorous about keeping the case on track and about making sure all opinions are heard. In a sense, he’s a good judge for the settling parties. If the settlement is going to stand up on appeal, it needs a searching examination and carefully prepared record at the District Court level.

I can’t share your liking for the Court’s “pragmatism”.

According to the Notice previously approved by the Court, “You may appear at the hearing in person or, if you are represented by an attorney, your attorney may appear in person, and state why the Settlement or any part of the Settlement should not be approved. You must give notice of your or your attorney’s intent to do so in the statement you file with the Court.

That Notice appears to have guaranteed that those class members who gave timely notice (by the September 8 filing deadline) of intent to appear and speak at the hearing, and did in fact appear, would be permitted to speak.

It seems strange to, in effect, retroactively alter the terms of the notice, by imposing an additional requirement (which many class members would be unlikely to learn of) for an additional notice of intent to appear by e-mail, and a further selection by the Court.

Many people are likely to have already made substantial nonrefundable ticket purchases to attend the hearing, in reasonable reliance on the Court’s and the Notice’s promise of an opportunity to be heard in person.

For example, pro se objector Shojiro Akashi, who resides in Japan, complied with the notice by giving timely notice to the Court of his intent to appear in person in New York on October 7th. To get a reasonable price for such a journey, I presume he’s already bought his tickets, at considerable expense. Would it be proper for the Court now to deny him an opportunity to be heard, either because he doesn’t re-visit the settlement Web site (or have it translated, or translated again) to learn about the new duplicative notice requirement? Or because the Court doesn’t “select” him to speak?

Knowing they would be permitted to speak in person, some people may have left some or all of their arguments to be made in person, so briefs are not a substitute (at least unless those who had given timely notice of intent to appear, but not subsequently “selected” to speak, are given an opportunity for supplemental briefing to address issues they had intended to raise in oral argument).

If the Court or the parties didn’t anticipate the numbers of objections, that’s not the objectors’ fault, nor should they be penalized for it. Having promised them an opportunity to be heard — individually, in person, without the need to be represented by lawyers, as long as they (a) gave timely notice of intent to appear, and (b) got themselves to New York on October 7th — the Court and the parties are obligated to keep that promise, which was part of the terms of the settlement itself as provisionally approved.

Save your cynicism until the judge actually issues an order on who will be allowed to speak. My best guess at today’s order is that it’s meant to deal with the other class of errors: those who didn’t think they needed to put in a specific request to speak with their objections. But we shall see.

On another note, saving some of your arguments to be made in person is always a terrible idea.

Maybe I’m a cynic (not all cynics are lawyers), but I don’t see anything in the Court’s latest order supporting an interpretation that it is intended only to offer an additional opportunity to request an opportunity to be heard, for those who hadn’t previously given notice of intent to appear. Quite to the contrary, it says that “Any person who wishes to speak must submit a request by email…”, with no exception to that “any” for those who already submitted requests in the form and by the date specified in the notice, and who would have no reason to think they needed to check the docket (at 8 cents a page for how many pages of the docket, if they even have a PACER account?) before showing up at Foley Square on October 7th.

We shall see whether (a) those “selected” to speak include all of those putative class members who filed timely (by September 8th) notices of intent to appear, regardless of whether they filed a duplicative second notice by e-mail according to the Court’s new order (which they are unlikely to be served with or receive notice of), and (b) if not, whether the settling parties bring to the attention of the Court, as supporters of the proposed settlement, that the proposed settlement by its own terms requires that all such persons be given an opportunity to address the Court.

It may be that reserving arguments to be made orally is generally a bad strategy, but I wouldn’t rule it out as a choice some people may have made in this case, particularly in relation to the “moral rights” of authors and different ideas in other cultures around the world about personal responsibility, personal confrontation, naming, shaming, etc.

I presume this applies only to class members who wish to speak, and not to lawyers who have already put in notices of appearance/motions for admission? Or does it?

Although this is a class action fairness hearing, it is not a town hall meeting on book publishing and marketing nor is it a Congressional type fact finding or oversight hearing. It’s a federal court Rule 23 Fairness hearing, and there are narrow legal issues to be addressed. But this reality only gives more weight to all the objections and briefs arguing that the Settlement is usurping legislative control of copyright and internet licensing issues, and is an abuse of the class action Rule 23 procedure. Judge Chin’s Order is not unexpected, as all federal judges exercise tight control over their courtrooms and always limit oral argument at hearings.Remember too that at the hearing the Judge will be grilling the attorneys for the Authors Guild,the Publishers and Google on the critical and disputed issues of the deal, and that will be the most significant drama to unfold. Finally, a colleague of Judge Chin has just rejected a settlement in a big Wall Street case, between the SEC and Bank of America over the Merrill Lynch merger, and thus demonstrated the independence of judicial review and vigilance for the public interest which Judge Chin will doubtless demonstrate in this case.

Intellectual property attorney C. E. Petit commented on the judge’s order on his Scrivener’s Error blog yesterday:

Reading the tea leaves a little bit, I think Judge Chin underestimated the passion that would pour forth regarding the proposed settlement. His order specifically does not provide for a presentation of opt-out statistics or anything else relating to those who opted out… and that’s a bad sign for the proponents of the settlement, as that more-often-than-not-but-no-guarantees indicates that the judge is contemplating imposing another opt-out period for a substantially altered settlement. (Usually, the fairness hearing for an opposed class settlement will specifically discuss opt outs as part of the risk of the settlement not adequately covering the class.)

Thanks to some of your concerns or should I say in spite of your concerns, Shojiro Akashi, mentioned above, sent his request to speak at the fairness hearing. It’s been taken care of. Akashi and I, his assistant for this matter, thought we just wanted you to know that much. Thanks!

I think your readers need an update on the schedule in view of the recent DOJ filing confirming on going secret negotiations between the parties and the DOJ on changes to the GBS. Do we know if any of the major Objectors (e.g. Open Book Alliance, Internet Archive, Amazon, France, Germany,etc) are part of the negotiations? If so who? In the meantime, we have to await the Oct.2 midnight filings of Reply Briefs. Those wanting to speak on Oct.7th, if this hearing is still held, should certainly advise the court of this ASAP.

So far, no announced changes to the schedule. I also doubt that any of the objectors are part of the ongoing discussions.