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Tuesday, September 22, 2009

Google, plaintiffs, DOJ amending settlement

The plaintiffs in the Google Book Search settlement today filed a motion with the court asking to delay the fairness hearing, scheduled for October 7. In a memo accompanying the motion, the plaintiffs explain that they are amending the preliminary settlement in light of discussions with the U.S. Department of Justice. From the memo:

... As of September 8, 2009, approximately 400 objections, briefs of amici curiae, and statements, both in support of and in opposition to the Settlement Agreement, have been filed with the Court. ...

In addition, as the Court is aware, the Antitrust Division of the United States Department of Justice (“DOJ”) has been investigating the proposed Settlement and other federal government agencies, including the U.S. Copyright Office in a hearing before the House of Representatives Committee on the Judiciary, have publicly expressed views on the Settlement.

Last Thursday, September 17, 2009, plaintiffs and Google met with senior DOJ officials. In that meeting, the parties expressed their commitment to work with the DOJ regarding several concerns with the Settlement Agreement.

The next day, on September 18, 2009, the United States Attorney for the Southern District of New York, in response to this Court’s Order of July 2, 2009, filed a Statement of Interest of the United States of America Regarding Proposed Class Settlement (“U.S. Statement of Interest”). Of key importance is that the U.S. Statement of Interest confirmed the DOJ’s reciprocal desire to work with the parties to address concerns raised by the United States. ...

It is because the parties wish to work with the DOJ to the fullest extent possible that they have engaged, and plan to continue to engage, in negotiations in an effort to address and resolve the concerns expressed in the U.S. Statement of Interest. ...

Plaintiffs ... are uncertain, at this stage, whether any additional form of notice, however limited, might be required [for the amended settlement]. ...

Accordingly, because the parties intend to amend the Settlement Agreement and need adequate time to negotiate amendments among themselves and with the DOJ, plaintiffs respectfully request that the Court adjourn the Fairness Hearing scheduled for October 7, 2009.

Plaintiffs also respectfully request that the Court schedule a status conference, for the purpose of discussing the parties’ progress, on November 6, 2009, or at a date and time of the Court’s convenience. At that time, the parties expect that they will be prepared to present to the Court a schedule for further proceedings, including a Fairness Hearing, in this case.

Google has agreed that plaintiffs may represent that it does not oppose this motion.

Comment. This could be big. There's no shortage of criticism of the terms of the preliminary settlement; the question is which changes will Google and the plantiffs adopt, and whether DOJ will sign off on them.