In a bit of procedural news, Judge Denny Chin last week issued an order denying an August 17 request by Google to stay the Authors Guild's current lawsuit against them until after the Second Circuit Court of Appeals rules on Judge Chin’s decision to certify the case as a class action. In his ruling, Chin confirmed what we first reported when the appeal was announced: that since the appeal before Second Circuit has nothing to do with the merits of the case, a stay of the proceedings is not warranted. “The merits would have to be reached at some point, in any event, and there is simply no good reason to delay matters further,” Chin ruled, noting that the case is now seven years old, discovery is complete, and motions for summary judgment have been filed.
Google made the delay request in an August 17 letter, dated the same day Chin issued a scheduling order that delayed the proceedings for two months, at the request of the plaintiffs (who cited a health issue among their counsel). Under the new schedule, opposition briefs originally due on August 24, are now due by October 24; replies in support of the cross-motions for summary judgment, (as well as to the plaintiffs’ opposition to the amicus briefs) are due by November 19; and oral argument on the cross motions for summary judgment are now slated to begin on December 4.
With the order, the appeal process will continue to run concurrently with the litigation process in the district court, although the appeal timetable is not set. Currently, only a “pre-argument” conference call is set for October 2, at 3 p.m. A three-judge panel of the Second Circuit will eventually hear the merits of Google’s appeal, although in an interesting twist, Chin, who was promoted to the Second Circuit Court of Appeals during his tenure on the Google case, was randomly selected to the three-judge panel tasked with deciding whether or not to hear the appeal. Chin recused himself from that decision; the two remaining judges ruled that the appeal should be heard.
It is worth emphasizing, meanwhile, that the current appeal is not the main event, but a procedural issue. If the Second Circuit does reverse Chin’s May 31 decision to grant class action status, the case would proceed, but on the basis of the named plaintiffs. And should the case eventually come to a decision on the merits, whether as a class action or via the named plaintiffs, that decision will almost certainly be appealed to Second Circuit (and possibly beyond).
Still, a reversal at this stage denying class action status could impact the litigation. “I would wonder about the case’s financing,” New York Law School's James Grimmelmann recently told PW. "The only prospect to recover the lawsuit’s costs would be to hope for a decisive victory followed by fee-shifting, while at the same time the plaintiffs would be exposed to the prospect of having to pay Google's (by now quite significant) legal fees if they lost.”
On another note, it is increasingly likely that a decision will now come first in a closely-related suit, the Authors Guild vs. Hathitrust. That case, proceeding in Judge Harold Baer's court against a cooperative of university libraries, concerns some of the identical claims regarding mass digitization as those contained in the Google suit.