GBS: The Game Is Afoot

The parties aren’t the only ones burying filings late on Friday night. Earlier (but not much earlier) this evening, Amazon filed a motion asking Judge Chin to reconsider yesterday’s ruling preliminarily approving the settlement.

It’s a full-on attack on the settlement; Amazon’s theory is that the future-claims issue is such a fundamental flaw in the settlement that there is no way Judge Chin could ultimately approve it. The briefing in support of this argument makes a familiar set of points from Amazon’s earlier brief about future claims, citing some familiar cases whose names I expect will become regular fixtures here at the Lab:

Thus, Amazon argues, Judge Chin should save time and resources, reject this settlement, and give the parties another 30-45 days to negotiate a settlement that includes only releases relating to past claims. In arguing that this change wouldn’t seriously hurt the parties, Amazon uses their own past words against them:

The premise of both the initial proposed settlement and the Proposed Amended Settlement is that, in order to create a sufficiently valuable corpus of works for Google’s future projects, any settlement must provide Google with a license for the future use of class members’ works unless they come forward and ask not to be included. Yet, in defending the de factoexclusivity that such an arrangement would grant Google over large numbers of copyrighted works, the parties have repeatedly asserted that this feature of the proposed settlement is insignificant, because there are in fact very few literary orphan works. These two positions are logically inconsistent. If the corpus of orphan works is small, then modifying the settlement to require rightsholder consent for future uses—thus making orphan works ineligible for these projects—should be inconsequential.

Along the way, the memorandum raises the point that almost no one has actually yet seen the Third Amended Complaint; Amazon “obtained a non-conformed copy by contacting one of Plaintiffs’ attorneys shortly after the Court order permitting the plaintiffs to file it.” The motion doesn’t actually advert to anything interesting in the Third Amended Complaint, but I am looking forward to seeing it. (Black’s defines a “conformed copy” as “An exact copy of a document bearing written explanations of things that were not or could not be copied, such as a note on the document indicating that it was signed by a person whose signature appears on the original.”)

Additionally, Amazon asks that objectors be allowed to address not just changed provisions but anything in the settlement, to “avoid prejudicing objectors by unduly handicapping their ability to present arguments accurately and forcefully.” The Amazon proposal here is actually quite clever; it asks the court to allow objectors to state that their new objection supersedes their old one, so the court doesn’t have to read duplicative filings or stitch them together. (Of course, if Judge Chin and his clerks have already plowed through the mountain of paper, this proposal doesn’t actually save them much work.)

I expect to see a reply memorandum from the plaintiff class lawyers in fairly short order, arguing that the future claims issue is not problematic, and that in any event objections of this sort are improper at the preliminary approval stage and can be fully aired at the final approval stage in February. I suspect that Amazon had substantial pieces of this motion written and ready to go even before Judge Chin issued his preliminary approval order—and I suspect that the plaintiff class lawyers have substantial pieces of their reply written and ready to go, just in case anyone pulled a stunt like this. I also expect Judge Chin to move quickly in ruling, given that the currently scheduled start of the renotice period is only a few weeks away.

Given the strong and well briefed attacks on the open ended prospective release, it is astonishing that Google did not revise it and limit it already. I think that if Jduge Chin denies Amazon’s Motion on this issue, Amazon will try an interlocutory appeal and seek a stay from the 2nd Circuit. And I think the 2nd Circuit will likely intervene.

I disagree. I wouldn’t be surprised if Judge Chin denied the Amazon motion or if Amazon asked the Second Circuit to step in, but I would be surprised if the Second Circuit took up the invitation. District Judges have a lot of discretion on procedural matters. Especially given the timing, I would expect them to let Judge Chin proceed, secure in the knowledge that they will get a full chance to review the issues, should he ultimately approve the settlement.