24 September 2009

GBS: Status Hearing Instead of Fairness Hearing

Judge Chin has granted the motion I described yesterday (PDF, signed but not docketed), deferring the fairness hearing that was scheduled for 07 October 2009. Unfortunately, the way his order is written makes sense to lawyers... but will scare nonlawyers into thinking that they're never going to be heard.

The hearing has been converted to a status conference. Judge Chin's order states that he will hear only from the actual parties at the status conference, and not from objectors, class members, etc. I've already had one contact indicating that the reader — who is not a lawyer — thought this means the judge isn't going to hear from objectors at all.

A status conference allows the parties to keep the judge up to date on what is going on in a case. The parties. At this time, the parties are the Authors Guild, the named publishers, Google, and the University of Michigan.22 Technically, not even the five inadequate representatives proposed by the Authors Guild are parties at this time, because the class has not yet been certified. Thus, it is entirely proper for Judge Chin to refuse to hear from nonparties during a status conference; I only wish that his order had not assumed a certain level of procedural sophistication.

That said, IMNSHO, and all other things being equal — they aren't: given the pending nomination of Judge Chin to the Second Circuit, it makes a great deal of pragmatic sense to leave a clean procedural record for his successor, and that means interfering as little as possible with the parties at this time — I would have ordered the fairness hearing to proceed limited to the question of adequacy of representation. Adequate representation will be an issue no matter how the present parties modify their settlement agreement to meet certain third-party objections (in particular, the antitrust objections), and it seems to me that abstract judicial economy would best be served by dealing with Rule 23(b) issues now and deferring consideration of the merits to a later hearing.

  1. Clarification: The U of M is not named in the caption, but all of the elements of a cause of action against the U of M for inducing infringement are stated in the body of the complaint, and the complaint itself identifies the U of M as a potential party.