FYI

U.S. District Court for the Southern District of New York
October 7, 2009
10:00 a.m.
Before: HON. DENNY CHIN, District Judge

THE COURT: Of course we are not proceeding with a fairness hearing today. I really just wanted to see where we are and talk about scheduling.
First of all, I guess we should confirm that the current settlement is off the table, correct?

….MR. BONI [Co-Counsel for Author Subclass]: But primarily, because it will be very short, it will address the amendments only. It will be sort of in tandem with the original notice, and it will largely be a notice that states benefits to the class. For that reason we believe that both the size and language of the notice as well as the timing of dissemination should be very short and truncated. We also believe that the time in which class members can respond either by opting out or, for those who have already opted out, to opt back in, or, in the third alternative, for class members who wish to object, we would ask the Court to limit the objections to those provisions that were amended and not have a whole new bite of the apple for the class. We believe that with that time period, very shortly thereafter the parties can get to the Court their motion for final approval and all of their supporting papers so that in the best-case scenario we would target late December, early January for the fairness hearing. Again, that assumes the Court grants preliminary approval. We understand this is an ambitious schedule and this is something that we are committed to working toward. I just want to say one more thing about the schedule, your Honor. There is a deadline in place for January 5. That is a deadline by which class members must claim their books in order to receive a cash payment for books that Google has already scanned.

THE COURT: That’s in the current agreement?

MR. BONI: It is in the current agreement, yes.

THE COURT: Yes.

MR. BONI: But we think it important that in light of this slippage in the schedule the parties have agreed at this point to extend that deadline until June 5, 2010. That is the status update, your Honor.

THE COURT: Did any of the parties or did any other parties want to add anything to that?

MS. DURIE: [Daralyn Durie of Keker & Van Nest, counsel for defendant Google.] No, your Honor.

MR. KELLER [of Debevoise & Plimpton counsel for publisher sub-class]: We agree with everything Mr. Boni reported to the Court.

THE COURT: All right. Anyone from the Department of Justice want to be heard?

MR. CLOPPER [counsel for the United States of America]: Assistant United States attorney John Clopper. With me I have Bill Cavanaugh, the deputy assistant attorney general for the antitrust division, and Owen Kendler, trial attorney for the antitrust division. I think I am going to ask Mr. Cavanaugh to speak.

THE COURT: That is fine. Mr. Cavanaugh.

MR. CAVANAUGH: Thank you, your Honor. Your Honor, we have been having ongoing discussions with the parties in an effort to elaborate on the concerns that we expressed in our brief. We have not seen the proposed amendment or how the parties intend to address our concerns. So we will have to wait to see the amendments. I expect we will be setting up meetings in the near term to go over whatever their proposal is.

THE COURT: All right. Thank you.

MR. CAVANAUGH: Your Honor, I would ask one thing. If your Honor is going to set a schedule in terms of the filing of objections or submissions, the government would request that we could have a week to ten days after whatever that period to file our submission and give us an opportunity to see what the objectors are saying.

THE COURT: Yes. I don’t think I am going to set precise dates today. I like the schedule. I like the target date of early November. I think that would work. Thank you.

MR. CAVANAUGH: Thank you, your Honor.

THE COURT: Let me react to some of these other things. I think I agree with the concept that a limited or supplemental notice is all that is required rather than a full-blown notice. With all the time that we have had, folks have been able to study the current settlement at length. We have a large body of thoughts and input, many for, many against, but I think everyone has a pretty good idea of what is on the table. And I think targeting the changes is the right way to do it. Otherwise it would be many, many months, and that would not be acceptable to the Court. So I would hope the parties can stick to and achieve the targeted date of early November for submission and then a hearing date in late December or early January….