Google Book Search Settlement Hearing Is Likely Postponed

Late today comes word that the plaintiffs (authors and publishers) and defendant (Google) have asked the court to postpone the settlement fairness hearing originally scheduled for October 7th. According to the memo from the parties supporting the request, the spark for this comes from the U.S. Department of Justice's "Statement of Interest" regarding the settlement:

It is because the parties wish to work with the [Antitrust Division of the United States Department of Justice] 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. The parties are committed to rapidly advancing the discussions with the DOJ. Nevertheless, it is clear that the complex issues raised in the U.S. Statement of Interest preclude submission of an amended settlement agreement by October 7.

No word yet from Judge Chin on whether he will accept the motion, but commentators say that he will likely do so.

James Grimmelmann, Associate Professor at New York Law School and the lead behind "The Public Index" site chronicling and commenting on the settlement, had these initial reactions to the request:

It’s interesting that they haven’t withdrawn the motion for settlement approval, only asked for a delay in the hearing. (Leaving the door open to try again with the current settlement if negotiations fail?)

Since last October, the settling parties have been saying that renegotiation would kill the settlement, since the original round was so contentious. Looks like the DoJ successfully called that bluff.

I may be misreading the motion, but they seem to think that they couldn’t have new text ready by October 7, but may be able to have it by November 6. Or at least, they’ll commit to a schedule then.

People have already made travel plans to come to New York and may not like the rescheduling. But the original purpose of the hearing—a debate over whether to approve the settlement as is—is now all but moot.

I have a hard time seeing Judge Chin denying the motion. I could be wrong, but pretty much everyone is now telling him to wait. Trial judges don’t like to force an issue if there’s a chance it could go away by mutual agreement.

According to the memorandum supporting the motion, lawyers for the plaintiffs and defendant met with DoJ on Thursday with a commitment to adjusting the settlement followed by DoJ's formal filing of the Statement of Interest on Friday. This effort was reported yesterday in an article in the New York Times. By mid-day today the processed had reached the point where they wanted to ask for the postponement. To the extent that the DoJ concerns overlap with the 400-some-odd documents filed with the court (both in support and in objection to the settlement), some of them may be rendered moot. (Or, in the poetry of legal filings, "The interests of class members and of judicial economy will not be well served by holding a hearing on the present Settlement Agreement." Judicial economy? Sheesh.)

Originally via the Open Content Alliance blog, with additional information from James Grimmelmann's blog.