In an unsurprising turn of events this week, Judge Chin denied the visual artists’ motion to intervene. I say “unsurprising” because this is the second time Judge Chin has denied their request. Their first request was denied summarily, so the motion to intervene was actually before Judge Chin as a request for reconsideration. And no, he hasn’t changed his mind.
This time around, he explained his reasoning in somewhat more detail, though. First up is his analysis of why intervention would be untimely:
The parties to this litigation have been negotiating and renegotiating a complicated settlement agreement for several years. In the last two months, the parties have begun working with the Department of Justice to revise the agreement to attempt to avoid antitrust problems, and they are due to re-file their new settlement proposal on November 9, 2009. The proposed settlement, if approved, would allocate rights to millions of textual materials. It represents thousands of hours discussion, compromise, and legal draftmanship [JG: sic]. Yet, the movants propose to intrude at the very end of this long process, and to add the question of millions of pictoral [JG: sic] materials to the equation. Intervention could “destroy [the parties’] settlement and send them back to the drawing board.” (citation omitted).
On one level, this has to be right. As I discussed in my analysis of agenda-setting in this class action, giving someone the power to propose a specific agreement is all but inherent in the way we handle class actions. If the ASMP feels that the settlement will cause them harm, the objection and amicus window is designed to give them an opportunity to be heard. Many of their arguments are properly characterized as objections that the settlement violates the public interest and should thus be rejected. Moreover, since the settlement wouldn’t bind the visual artists, the court correctly and repeatedly notes that they’re free to file their own lawsuit against Google.
In terms of timing, the court does talk about the years of negotiation and the parties’ interest in not being prejudiced by having this monkey wrench thrown into it. But when the chips are down, I read the opinion as saying that the visual artists should have moved to intervene when the initial settlement was announced:
As long as movants retain their right to bring their own lawsuit, they have not been harmed by this litigation, and they do not retain an automatic right to intervene a year after the proposed settlement agreement was filed. From the perspectives of fairness and efficiency, it makes more sense for the movants to file their own lawsuit than to be permitted to delay this lawsuit.
The other issue the court needs to deal with is the visual artists’ argument that they were entitled to be part of the final class, given that they were included in the class in amended (2006) complaint. As the court wrote:
The movants are incorrect: the broad class that was defined in the first amended complaint does not entitle them to intervene at this late date. “The braod language of a complaint does not vest in putative class members a right to be part of the class ultimately certified by the District Court.” Holocaust Litigation, 225 F.3d. at 202. The center of this litigation has always been copyrighted textual materials. I reject the argument that class counsel acted in bad faith in the way they defined the class because there are legitimate reasons for limiting the class to holders of textual copyrights. …
The holders of pictoral [JG: sic] copyrights are differently situated from the holders of textual copyrights. Frankly, in the context of an online database that is searchable using keywords, it makes sense to prioritize the rights to word-based material.
The Holocaust Litigation case cited by the court is reasonably on point. This was the lawsuit against Swiss banks for their complicity in the Holocaust. The original complaints were broadly drafted, but the $1.25 billion settlement covered only a class of those “persecuted or targeted for persecution by the Nazi Regime because they were or were believed to be Jewish, Romani, Jehovah’s Witness, homosexual, or physically or mentally disabled or handicapped.” A group of ethic Poles moved to intervene, but the Second Circuit denied their request. As it explained, “the evaluation of such a motion [to intervene] does not require a court to take into account the language of the original complaint.” And in a footnote, the court addressed the Poles’ argument that there was no coherent reason to include, e.g. Romani, and not also them:
Appellants draw attention to the Settlement’s inclusion of groups whose losses apparently do not form part of this estimate-that is, those who fall under the categories of Romani, Jehovah’s Witnesses, homosexuals, and the disabled-and suggest that it implies suspect motivations. See Appellants’ Brief at 25 (“[C]lass plaintiffs took the more expedient route of dropping some of the more numerous classes from the consolidated complaints in defining the settlement classes.” (footnote omitted)). The inclusion of these groups arguably calls into question appellees’ argument that ethnic Poles have been excluded because the Settlement amount does not reflect their losses. Nevertheless, we are not persuaded that appellants have been inadequately represented. Counsel for appellees explained at oral argument that the inclusion of these smaller groups represents a decision on the part of plaintiffs to include those groups treated “essentially indistinguishably from Jews” under the Nuremberg race laws. Putting aside the question of the parties’ motivations, we note that the groups in question presumably encompass far fewer claimants than the category of ethnic Poles (and certainly fewer than the broader category of persons persecuted on the basis of national origin, who would undoubtedly seek to be included if ethnic Poles succeeded in intervening). Under Rule 24 the inclusion of much smaller groups could well be warranted on the grounds that their ability to pursue their interest in the subject matter of this litigation would otherwise be impaired. Moreover, it would be up to class members-not potential intervenors-to challenge the Settlement’s allocation of funds. In any event, we discern no basis for questioning the motives of the class representatives or their counsel.
While the ASMP et al. are considering their options, with that precedent on the books, I don’t think they have much chance of success on appeal. I’ve seen suggestions that they should do so and then move for consolidation; I would think that, after this ruling, the last thing they would want would be to back in front of Judge Chin.
Those inclined to pore through Judge Chin’s language for tells as to his thinking on the settlement itself are encouraged to do so in the comments.