LACK OF COOPERATION

For 3 weeks or so I've asked the claims administrator and the AB counsel to discuss with me whether the current prediction for payments, put up in February, is now no longer helpful due to developments. The AB counsel have always been far more involved in managing the claims administration than I have. I need their experience and of course need input from the claims administrator. On my own I can only guess based on the many delay up to now, and the number of unexpected (at least by me) problems that have arisen.  

I've asked the AB at least three times and they simply ignore my request. They'll respond to something else in the same email but ignore that question. 

In February a class member became so upset over the lack of progress that he wrote Judge Daniels. I informed the AB counsel, and Michael Boni, who has a background with that class member, contacted him. Michael promptly talked to him and at the same time, noting his receipt of questions from other class member, proposed a draft of the update that appears on the settlement website. I worked with him to refine that and it was posted. The unhappy class member withdrew his letter to the judge.  

Things since then cause me concern with the end of year prediction. I think you are owed our best estimates, especially when something has changed. This isn't a major item. It will be finished when its finished. But as a courtesy we should keep you advised. I've spoken to number of class members for whom their hoped for compensation is meaningful to their situation. 

Michael Boni has always shown concern for class members' interests. If you'd like him, or other AB counsel to assist in updating the estimate, or at least commenting in some way (too soon to know, etc.) you cab ask for their cooperation.
I answer email when I can but if the number is too great I'll use this blog to provide information. 

Gary Fergus (GFergus@ferguslegal.com)
Diane Rice <drice@hosielaw.com>
ANNEMARIE de Bartolomeo (ajdebartolomeo@gmail.com)

Michael Boni (MBoni@bonizack.com)

Shorter title: WCASIH - WORST CLASS ACTION SETTLEMENT IN HISTORY

    I will post more frequently until we get this done. I will also post information relevant to A and B claims.

    First an unpleasant development. But first about numbers I report. They are rough estimates and shouldn’t be relied upon as anything else, and also considered somewhat unreliable. For instance, review indicates I understated total value of A and B directed objections. Looks like total of those is about $3.1 million and total of all objections is more like $3.5 million. For A and B that’s challenges against about 40% of the value of all A and B and the Databases are yet to present their objections (due in about one month). Challenges don’t mean invalid but they do mean that the AB counsel have to analyze and respond to the challenges.

    The development. There is now an explanation about the large number of publisher objections that they didn’t publish a claimed article. It doesn’t necessarily explain all, but probably a large number, and it is astonishing. In 2006 they found themselves looking at tens of thousands of claims that named  publishers whose works were, so far as they knew then, not on databases, so  not eligible. But they observed that many of these appeared to be mistakes by the claimant about the publisher’s name, or shorthand versions of a publisher’s name. So they undertook to rename these publisher names to correct it to what they thought was the intention and to also have the effect of making the work eligible.  Here are three examples I was given last week: Wash Post to The Washington Post; Dayton Daily News (Ohio)  to Dayton Daily News;  Modern Maturity to ARRP Modern Maturity. Those seem like reasonable interpretations.

    However, there is some evidence that the process resulted in changes more substantial, so that the claim was sent to a publisher different than what the claimant submitted or intended. Among the evidence is research I’ve done showing that claims sent to such and such Law Review, were submitted to by the claimant to go to such and such Review. These were frequently reviews on literature, music, poetry etc. The name changing exercise inserted “Law” before Review sending the claim to the wrong publisher. Law review are generally eligible, some small literary or specialty reviews may not be eligible.

    There were still publishers identified in claims that didn’t appear eligible (even after this name changing exercise) and the claimants for these received a notice and opportunity to show that the publisher’s articles did get on databases. In some cases they could show that is was on a database and eligible. The problem now is the ones that had a name change and have been rejected, deserve that same opportunity if the original name appears ineligible, and that’s a new, unanticipated, process and related delay.

WCACPIH -- Worst Class Action Claims Procedure In History

There are so many unanticipated problems arising with publisher objections to claims that I think the prediction that checks would be out by the end of the year is questionable. Still possible but certainly not sure,

There are, so far, 30,000 thousand objections or assertions that the claim should be reassigned to a different publisher.

There are hundreds if not thousands of objections that the publisher never published the article that the claim is based upon. At this point, which is early, there is no way to know why that is happening. Did claimants get it wrong? By the tens or hundreds? Some other explanation? These almost certainly will require contact, if possible, with the claimant. To the extent any of these need to get submitted somewhere else there is more delay.

There are hundreds if not thousands of objections that article was never on a database. One possible cause is that in 2005 the parties put a list of publications up that were on the databases, but they didn't put up the dates that those publications started putting their content on the database. So some claimants who wrote for those publications may have claimed for early articles that never got to a database. We will get dates soon (why they weren't put up in 2005 is a mystery to me) and I'll have a better idea about this issue.

Some fairly big publishers, like UPI and Reuters (total of 3800 claims), have come up with novel arguments why they shouldn't have to pay any claim. Those, and others, will very likely involve the dispute resolution process.

A couple of publishers and the Databases came up with an argument about the settlement that would have disqualified at least $180,000, and likely much more, in claims. I immediately opposed it and the AB counsel quickly and effectively supported me. It looks like the Databases will drop that argument but they haven't said so yet. The two involved publishers might still pursue it.

Many thousands were directed elsewhere by the original publisher. Those have gone out recently, or will soon. That adds more time for new recipient to study the claims and maybe present objections, or maybe new one wants to argue with the old one.

All of this is without yet seeing the Database objections and they are reviewing about $2.8 million in claims.

Here are some numbers. Total number and value of claims subject to present objections (before Database objections)  26,287 claims for $3.2 million. Total number and value of claims that are AB 2900 claims for $2.8 M.  So as the only counsel for C claims I'm attempting to address 23,000 claims while the four major AB counsel address 3000. Their's are 7 times more valuable, but in terms of time it is a nightmare for me.  And this is before the Databases take their shot at objections.

More as time goes on.

DIRECT FROM THE HORSE'S (Claims Administrator) MOUTH

All,

We are diligently working on preparing the claim reports.  Due to the number of claim reports and the amount of quality assurance time to review the reports, it will take us a couple of more business days than we originally anticipated to mail.  We now plan to mail the letter and accompanying instructions on November 4, 2015.  Please note for the 37 Participating Publishers, Ken provided us with email addresses, and we plan to email their cover letter and instructions.      

Thanks,

Brian

Brian StoneSenior Project Manager, Operations

  Garden City Group, LLC

That will start the six to eight months estimate of my last post. 

For questions chalmerscd@gmail.com

PROGRESS AND DELAY

There has been progress, but it has been start and stop. A goal in the last 3-4 months was for the Claims Administrator to creat a test report  ("beta test") to one or two publishers to test that its preparations for reports to 4600 publishers were valid. Just developing the instructions for that report and the instructions that would go to the publishers with their report took up roughly two months before the report and have been worked on since May. That report went out on August 25th. There were errors. A revised report went out on September 24th. The need to send reports to about 800 publishers has been avoided. Each of those 800 had less than $25 in claims against them.

The Claims Administrator is now finalizing the process of sending reports to 3800 publishers and providing for the publishers to respond (either with questions or disputes about the claims) to the reports. I would guessestimate that will take 30 days. Once those go out, it starts several clocks runing establishing some outside limits on how much longer this can go on. The various clocks are triggered by different events so I can't simply say X days or months. But roughly speaking, those reports start a 6-8 month period at the end of which, theoretically, payments could go out.

UPDATE

Claims processing continues to progress very slowly. In my last post I said there were 1600 publishers involved. Wrong, there are about 4600! I said defense agreed not to seek reimbursement from those owing less than $10,000. Wrong, that issue not yet resolved or clear. Estimate in June was 6 to 9 months. Six from then out of the question; 9 from then still possible.

Several weeks ago the Administrator's lead management person for this effort, which I believe has to be one of the most complicated claims processes (actually two processes) ever, ceased employment with the the Administrator. He had supervised it since claims processing started last August.

ESTIMATE FOR PAYMENT OF CLAIMS

My current estimate of the earliest time when payments can be expected is 6 to 9 months from now. I did not agree with the estimate put on the settlement website in February, so that advice said it was the advice of the A/B counsel. They refused to put my view on the site, which at that time was 3 to 6 months beyond September of this year. I have been trying for two weeks to develop a new estimate with them, but so far no luck.

Trying to assign blame for delays would only lead to endless argument. None of the class counsel are doing anything to delay the progress. The main reason is that this is one of the most complicated settlements in class action history. It is really two settlements. One for the class members against the databases, and a second one in which the databases make claims against the publishers that gave them the class member works. There are approximately 1600 such publishers. A major step forward was taken in the last week when the databases agreed to not seek reimbursement from publishers that owe less than $10,000. That eliminated the need for about 900 reports, and amounted to the databases accepting around $400,000 of liability. But there are still round 600 that have to be prepared.

I will start posting here more frequently on progress and payment estimates.