A broad group of opponents to the Google Book Search Settlement filed a letter with the Court on October 22 urging judge Denny Chin not to restrict comments on a revised settlement and to allow more time for would-be class members to assess any proposed revisions. In the letter, opponents write that the parties’ requests to “limit the notice, time and scope of objections” would be “unfair.” It comes after an October 7 status conference at which Chin set November 9 as the date by which the parties must submit revisions to the settlement for the court’s preliminary approval. Attorneys for the parties have said they hope for a final hearing on the new settlement as early as in late December or early January.
Opponents, however, told the court that timeline was unrealistic. “The prior settlement ran hundreds of pages, containing many complex highly technical legal and business issues, with multiple interlocking facets,” the letter reads. “Any amended settlement will add a new level of complexity, requiring careful analysis not only of the changes, but also of the way they affect all the other implications of the settlement.” Specifically, the letter complained that changes could pose particular difficulties for non-native English speakers. And, the objectors noted, the time frame suggested by the parties would “occur almost entirely over the holidays.”
Re-notice
A revised settlement agreement seeks to address concerns raised by the U.S. government in a September filing that urged the court to reject the deal as currently structured, citing problems with copyright, class action and antitrust law. At the October 7 status conference—which replaced the now twice-delayed fairness hearing—the settlement parties told the court that it would aim for only a brief re-notice period to announce any changes. At the status conference, plaintiff's attortneys referred to the re-notice as a “supplemental notice” that would not require a lengthy period because it would simply emphasize improved “benefits to the class.” In addition, the parties sought to limit new comments to the revisions. Chin tentatively agreed with the aggressive schedule, noting that a delay of many months would not be acceptable.
In its letter, however, opponents said that the brief re-notice was likely to be inadequate. “We believe that the Court should ensure robust notice to class members,” the letter urged. “Given the large size and diverse interests of the class members, plus the multiple concerns raised by the Department of Justice and many of the foreign and domestic objectors about the adequacy of the class representatives to represent those interests, we are concerned that the determination of whether the amendments are ultimately beneficial to the class may be more complex than in other cases where the amendments to class action settlements added only small improvements for the class.”
The letter also urged the court not to limit the comments. “Confining comments to changes in the settlement will create an arbitrary, confusing, and unnecessary threshold and lead to less readable filings that omit important context," opponents stressed. "Additionally, confining comments to changed matter may paradoxically prevent objectors and amici from informing the Court that the amendments do not address their concerns."
Major changes coming?
With less three weeks until the new deal is scheduled to be unveiled, its scope remains a source of speculation. In various news reports, legal experts seemed puzzled as to how the complex issues outlined by the government could be addressed in such a brief period, suggesting to some that massive changes may be in store—for example, the elimination of orphan works, all foreign works, or potentially making the settlement opt-in only. At the Frankfurt Book Fair last week, Bertelsmann's Richard Sarnoff said that foreign works may indeed have to be removed from the settlement, suggesting broad changes are at least under discussion.
