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.

STALL OF CLAIMS PROCESSING

Processing has stalled because of a problem. In 2005 the then class counsel, today know as A/B counsel because they represent the A and B category claims, posted advice on the settlement website for people who had syndicated their articles. In essence the advice said for each such article you only have one claim, but for amount paid to the author, which determines the compensation for B and C claims, the claimant should submit the total paid by all syndicating publications. It is know some claimants did this. I don't know how many.

Later, after all the appeals, the AB counsel agreed, at the insistence of the Defense, that the advice was wrong, inconsistent with the settlement. If they knew then (2013) that the claims database had a problem because of that advice, they didn't tell me.

I've discovered in the last month that there is a problem. For the people who submitted claims that way, the data base doesn't have the information necessary for proper presentation of claims to the Defense, so that process can't even start. That process, and the process of getting publisher and database money to pay claims, is an estimated six months mimimum.

There have been discussions about the problem, but no solution yet. The situation is testy because I think the AB counsel are responsible for the problem.

I'm presenting the problems to Judge Daniels immediately, but court processes are notoriously slow.

IF ANYONE KNEW ABOUT THAT SYNDICATION ADVICE IN 2005, OR USED IT, OR SPOKE TO CLASS COUNSEL ABOUT IT, PLEASE CONTACT ME.

CHALMERSCD@GMAIL.COM

Estimate for payments

The A/B counsel have posted on the settlement website their estimate that "at present, the earliest that payments can be expected is in the third quarter of this year, 2015, especially if there are objections or disputes over claims."

I would not approve that post. I believe that it is seriously misleading. Based on current status, I believe there is virtually no chance of payments in the third quarter. There is a theoretical possibility, but it would require the involved publishers, and then the involved databases, to take much less than their allotted time to perform tasks which lead to the payment of the claims. To the extent that "at the present" suggests there is any chance that the timing could improve and payments become more likely in the third quarter it is even more seriously misleading. 

There are 233 days allotted for the publishers and databases. There are circumstances which could extend those allocations and it is impossible to predict the possibility of those circumstances. There are over 5000 publishers who must take an action in this process. This aspect of the settlement may make it one of, if not the, most complicated class action claims processing ever. The actions to be taken to start the 233 days running have not been completed and I am unable to provide an estimate of when they will be completed. 

I will be posting regularly here now on claims processing procedures, progress and problems. 

Many or most of you will be infuriated by this delay. Unfortunately, there is no place to effectively complain or urge greater speed. The procedures are what they are. Have the actions of class counsel in general, or any particular class counsel, aggravated this situation. The answer in my view is yes, but now is not the time to discuss that. Getting this done has my full attention and all of my time that my responsibilities require. 

If anyone in the class, C claim or otherwise, observed the advice on the settlement website in 2005, quoted below, and filed their claim with this advice in mind, it might help the current status if you would contact me. chalmerscd@gmail.com.

Q. If I wrote articles as a syndicated columnist, how should I go about filing a Claim Form? Do I include a separate claim for every publisher who published a particular article, or just one claim for each article.

Q. When filing a Claim Form, syndicated columnists should fill out just one Claim Worksheet for each article. However, that worksheet should include the name of each print publication the syndicated article originally appeared in. In addition, when listing the amount received in payment for that article, list the total amount received for the article. 

CLAIMS PROCESSING PROCEDURES, TIMING AND MAJOR ISSUE

   Claims processing involves three major steps.

Evaluation of claims by the Claims Administrator according to established criteria.
Challenges to claims by publishers or databases.
Resolution of defense challenges which can't be informally resolved.

A large part, but not all, of the first step took place in 2005-6. The remaining part took place over the last several months and more than 1300 claimants received notices about possible problems with a claim. They are responding. Their responses are considered and a decision made.

Then, the claims that have made it through that process and are still considered eligible are submitted to publishers and databases, who then can present challenges to those claims. Those challenges are presented to claimants who can respond to the challenge. The parties will attempt to informally resolve such challenges, but if that is not possible that dispute will go to a third party for a decision which is final and without appeal. There will be no payments until this process is completed.

There have been statements indicating that this could be completed by early 2015. That is possible but, in my view, optimistic.

There is an issue of major significance presenting itself. I say major because it affects thousands of works and at least hundreds of claimants. In general it involves claims for works that were syndicated. This issue was identified during the negotiations in 2012-13. It was not resolved by those negotiations. It must be resolved now. The parties are commencing discussions to that end.

I am purposely not discussing details of this issue at this time. However, if it appears that it will significantly delay claims processing I will describe it here. It is not an issue on which, so far as I can tell now, claimant input would be helpful.

Notices from Administrator about eligible publications

To class members receiving notice about their articles not being eligible because the publisher does not appear on the official list.  If you know or believe that your article appeared on or in any database or archive that was available to anyone, for example on a website run by the publisher or an individual publication, provide whatever information you have to the Administrator. You can also provide a copy of your information to me. I will make every effort to see that all eligible articles are recognized. It appears that there may be some publications that did not copy their print articles to databases or websites, so some articles may not be eligible. Charles Chalmers, C Claims Counsel, chalmerscd@gmail.com. 

CLAIMS PROCESSING AND CLAIMS INFORMATION

The processing of claims hasn't started yet, but preparations for that processing are under way. The time for the processing is unclear but almost certainly will be in the neighborhood of six months.

There will one or two ocassions during that time that you will receive a notice from the administrator about any specific claims or work for which there is question or problem, unless you received a notice on the problem in 2006. At that time you will have the opportunity to offer your view, except for omissions or defects for which you received a letter in 2006.

We have an interim report on the claims which reflects an initial review by the administrator, and it categorizes claims in various ways. It details problems if any have been spotted at this time, and if none it indicates the value of the claim. This is definitely interim, as there is another detailed process of review for eligibility that will take place in coming months.

The administrator will not respond to individual inquiries. However, time permitting, I will respond to them.
I say time permitting because there are about 2500 claimants. I will do the best I can but a response may not be prompt. I will do this for all categories.

It will be helpful to us if you do contact me because by reviewing with you any problems that have already been identified I may be able to improve the future processing, and possibly shorten the time.

Charles D Chalmers
chalmerscd@gmail.com

OBJECTION DEADLINE PAST

The objection deadline is past. There is one objection about faulty mailing of four or five notices in 2005. There are also two or three "complaints" [meaning not formal objections] also about the notice in 2005. There is no objection to the terms of the settlement. This makes it likely, but not certain, that the settlement will be approved on or near June 10th.

There is one issue raised by objection concerning the proposed fee, and fee allocation process among the original class counsel, now referred to as the A/B counsel. There maybe further briefing on that issue, and it should be decided on June 10th. This issue does not appear to have any potential to disrupt the settlement, so even if one or more parties are unhappy with the decision and initiates an appeal, it should not affect the approval of the settlement, or further processing of the claims.

NO CLAIM NOTICES

Many claimants have received a notice that says "no claim" and sometimes with a second one that says they have a claim. Its just a minor screw up. There's an explanation on the settlement website http://www.copyrightclassaction.com/ . Anyone who wants to confirm they have a claim can email me at
cchalmers@allegiancelit.com, or chalmerscd@gmail.com. If a lot people ask (There are about 2500 claimants) it will take be awhile to respond.

Preliminary approval given today. Final approval hearing scheduled for June 10th.

LAST SIGNATURE

The last required signature on the Revised Settlement Agreement has been provided after approval by a bankruptcy court.

The preliminary approval hearing is scheduled for January 22nd.

All signatures are obtained, but one. That is 35 or more publishers, 16 defendants and the plaintiffs. One defendant is in a bankruptcy reorganization and it must obtain court approval to sign the agreement. The approval is expected without problem. It will take about 3-4 weeks to obtain that approval, but that will hopefully not delay proceeding.

Soon (matter of days) plaintiffs will request preliminary approval from Judge Daniels. Once obtained (expected to be matter of weeks) the process of notice will start. Then in a matter of months there will be a hearing on final approval.

I will try to predict time lines before too long, but a rough estimate is that it will be approximately a year from now before claim payments go out.

Once preliminary approval is obtained I will conduct inquiries with the class and individual members with the aim of preparing for the process of claim review and defense challenges to claims. The review and defense challenge will not start until after final approval (and the passage of 30 additional days to see that there is no further appeal). But many of the issues that are likely or certain to be presented are foreshadowed by the initial review that has already taken place and by the negotiations over the last year or more. Thus, the effort will be to anticipate those issues and try to have their resolution take as short a time as possible.

Continuing last minute changes to documents. While the plaintiffs' side is pretty quick with changes the defense not so much. Supposedly getting publishers is completed.

The delays against predictions by the defense, recent ones are shown below, are so systematic that it's hard not to wonder if there has been something else going on beside signing up publishers.

Could be in a day or two, or could be longer - impossible to say. Some of the things, one in particular in the last couple of days, came entirely out of the blue.

8-2-31. Michael Boni to the court. Finalized Revised Settlement Agreement and Exhibits, including forms of notice. Defense group trying to get support from important publishers. We are told this should take several more weeks. It is everyone’s intention to file for preliminary approval by the end of September. [WE DID THINK DOCUMENTS WERE FINAL, BUT THERE HAVE BEEN ENDLESS CHANGES SINCE THEN, COMING MOSTLY FROM THE DEFENSE BUT SOME FROM THE PLAINTIFFS, AND THERE WERE TWO MISSING EXHIBITS EVEN THEN. HOW THE DEFENSE COULD HAVE PROJECTED “SEVERAL MORE WEEKS” IS UNKNOWABLE – THE LAST PUBLISHER WAS REPORTED OBTAINED LATE LAST WEEK]

9-5-13. Chalmers to the court. We are still aiming for September 30^th. Defense says they are working for that goal and will know more in two weeks or sooner.

9-20-13. Sims (Defense) to the court. We’re still  working for September 30^th.

9-30-13. Sims to the court. We’re still working hard. Expect to file by October 15^th.

Continuing delays while last minute details, mostly related to dealing with individual publishers, are worked out by the defense. The lawyer for the defense responsible for these activities has been furiously busy with other matters in recent weeks and now says that conflict is cleared. All plaintiffs' (class) counsel have pressed as hard as possible to conclude it.