GBS: Preliminary Approval

Judge Chin has granted the parties’ request for preliminary approval. This isn’t a substantive ruling. just a procedural one. It puts us roughly back where we were a few months ago, before the parties withdrew the initial proposed settlement, and sets a schedule for re-notice, opt-outs, objections, and the fairness hearing. That schedule is the one the parties requested:

  • Notice begins: Monday, December 14, 2009
  • Opt-out/objection/amicus deadline: Thursday, January 28, 2010
  • Plaintiffs move for final approval: Thursday, February 11, 2010
  • Final fairness hearing: Thursday, February 18, 2010

Those who wish to appear at the fairness hearing must file a Notice of Intent to Appear by February 4, 2010.

Ugh. This is a cramdown schedule.

Now, whoever is serious about opposing the GBS , better roll up their sleeves, and get to work, and the big guys (Microsoft, Amazon, the Open Book Alliance,the Wm Morris Agency, the DOJ), should not plan on doing it at the last minute , like last time.

The opt-out page on the settlement website has been updated to note that the court has granted preliminary approval, while continuing to insist that ‘The deadline for opting out of the Settlement passed on Sep 4, 2009’.

That is plainly misleading, and strikes me on the face of it as highly whiffy. Do they have any administrative justification for withholding the information that there is now a new opt-out deadline?

After studying the amended agreement closely, I believe I can answer my own question.

10.2(b)(i) nothing in this Amended Settlement Agreement releases or adversely affects any Claims of any Amended Settlement Class members who opted out of the original Settlement Agreement by September 4, 2009 or who opt out of the Amended Settlement Agreement between the Amended Settlement Agreement Date and the Supplemental Opt-Out Deadline

1.12 “Amended Settlement Agreement Date” means the date set forth at the end of this Amended Settlement Agreement.

This Amended Settlement Agreement is dated November 13, 2009.

So, the supplemental opt-out period is already running: has been for over a week.

Attachment N to Amended Settlement Agreement: Your Rights Under the Amended Settlement Agreement:

Members of the Amended Settlement Class have the following options:

If you… Did not opt out of the Original Settlement but wish to opt out of the Amended Settlement

Then… You may do so by following the instructions in the original Notice and at

Except that as I reported in my previous comment, on the opt-out page of the settlement website it states that the deadline is past.

This looks like chicanery, but perhaps it is utter incompetence. Either way I cannot see why anyone would enter into a perpetually binding legal agreement (or risk being bound in such an agreement) with people who show themselves so undeserving of confidence.

Surely this ought to be raised with the court? Who has the standing to do so?

Hooray for Amazon for jumping in and in a meaningful way,

Regarding the opt out deadline and process, Gill Spraggs is right about the confusion due to the Court’s effort to truncate the fairness hearing, Rule 23 process. There will be years of disputes over opt in opt out, and claims compliance that the BRR will be mired in, due to these confusing provisions and deadlines.

Supplemental notices began to go out this morning, but the “opt out” tab on the settlement Web site still leads to this message:

Important Update: On November 19, 2009, the Court granted preliminary approval of the Amended Settlement. The Court-approved Supplemental Notice will be distributed mid-December 2009.

Opt out of the Google Book Settlement

The deadline for opting out of the Settlement passed on Sep 4, 2009. To make updates to previously-submitted information, please contact

Whether through incompetence, lack of due diligence, or bad faith, the parties and the settlement administrator are failing to carry out their obligations under the order preliminarily approving the revised settlement.

Authors trying to opt out in response to the supplemental notice will either give up, actively misled by the settlement administration Web site, or will ask to opt some of their books out of specific uses within the settlement (since that’s the only “opt out” possible on the settlement site), mistakenly thinking that by doing so they have opted out of the settlement entirely.

Can Google as a party really expect anyone to believe that the lack of the this basic (and previously present) functionality on the settlement Web site, supposedly operated with Google’s support, is innocent error?

The settlement administration site now has an opt back in tab.