The Settlement (in essay form)
The Lawsuit (in essay form)
In an order issued yesterday, Judge Chin has established some parameters for the fairness hearing in the Google Book Search settlement brouhaha. In the order that y'all should care about:
- The hearing will go forward on 07 October 2009 at 10am, as previously scheduled. {Doc. 716 ¶ 2}
- Anyone who filed a timely objection must separately request the opportunity to speak, via e-mail to googlebookcase@nysd.uscourts.gov, to be received by close of business on 21 September 2009. The request must state the name(s) of the individual(s) to speak (not just the organization to be represented, although this is not entirely clear from the order) and state the interest in the matter (and should refer to the docket number of the objection/letter in support/amicus brief). The court plans to notify those selected to speak by 25 September. {Doc. 716 ¶ 3}
- The parties proposing the settlement must submit written responses to the objections and amicus briefs by 02 October. However, no "reply" has been allowed for; that means that any misunderstanding, distortion, or misstatement of what an objector said can be dealt with only at the fairness hearing itself. {Doc. 716 ¶ 1}
- All written submissions will be considered by the court, even from those persons and organizations not selected to speak at the fairness hearing. Depending upon the court's process, it may limit the time afforded to individual parties to speak... and, although it is not specifically stated in the order, it may not give the same amount of time to each speaker. {Doc. 716 ¶ 3}
Reading the tea leaves a little bit, I think Judge Chin underestimated the passion that would pour forth regarding the proposed settlement. His order specifically does not provide for a presentation of opt-out statistics or anything else relating to those who opted out... and that's a bad sign for the proponents of the settlement, as that more-often-than-not-but-no-guarantees indicates that the judge is contemplating imposing another opt-out period for a substantially altered settlement. (Usually, the fairness hearing for an opposed class settlement will specifically discuss opt outs as part of the risk of the settlement not adequately covering the class.)
Further down in the dregs of this particular teacup, things remain murky indeed. That is only all too fitting with this entire litigation, so I think we should be unsurprised. Were I Judge Chin, but not prepared to reject the settlement in toto, I would be making every effort to ensure that whoever gets stuck with this monstrosity after I (pretending to be Judge Chin) go through the confirmation process for elevation to the U.S. Court of Appeals for the Second Circuit has as clean a procedural posture as possible. The 16 September order is entirely consistent with that; by giving away as little as possible of the judge's thought process, it makes things that much easier for another judge to take over later.