Last week, the Antitrust Division of the U.S. Department of Justice filed a Statement of Interest of the United States of America Regarding Proposed Class Settlement in the Google Books case, The Authors Guild, Inc. v. Google, Inc., No. 05 Civ. 8136 (DC) (S.D.N.Y. Sept. 18, 2009).  The press release says:

WASHINGTON — The Department of Justice today advised the U.S. District Court for the Southern District of New York that while it should not accept the class action settlement in The Authors Guild Inc. et al. v. Google Inc. as proposed due to concerns of the United States regarding class action, copyright and antitrust law, the parties should be encouraged to continue their productive discussions to address those concerns. In its statement of interest filed with the court, the Department stated:

"Given the parties' express commitment to ongoing discussions to address concerns already raised and the possibility that such discussions could lead to a settlement agreement that could legally be approved by the Court, the public interest would best be served by direction from the Court encouraging the continuation of those discussions between the parties and, if the Court so chooses, by some direction as to those aspects of the Proposed Settlement that need to be improved. Because a properly structured settlement agreement in this case offers the potential for important societal benefits, the United States does not want the opportunity or momentum to be lost."

In its filing, the Department proposed that the parties consider a number of changes to the agreement that may help address the United States' concerns, including imposing limitations on the most open-ended provisions for future licensing, eliminating potential conflicts among class members, providing additional protections for unknown rights holders, addressing the concerns of foreign authors and publishers, eliminating the joint-pricing mechanisms among publishers and authors, and, whatever the settlement's ultimate scope, providing some mechanism by which Google's competitors can gain comparable access.

The settlement agreement between Google and the authors and publishers aims to resolve copyright infringement claims brought against Google by the Authors Guild and five major publishers in 2005 raised by Google's efforts to digitally scan books contained in several libraries and make them searchable on the Internet. The District Court's hearing on the proposed settlement is scheduled to take place on October 7, 2009.

You might've thought that, after the dot com bubble popped in 2000 and Enron melted down a year and a half later, Congress might've rued the free passes it gave to Bad Acters under the Private Securities Litigation Reform Act of 1995. 

But that August Body, a decade beyond the PSLRA, handed out more of the sweet sweet candy.  Witness the Class Action Fairness Act of 2005.  CAFA swept lots of state court class actions into federal court, where pro-CAFAites hoped they would die.  Many did.

And let's not forget the Securities Litigation Uniform Standards Act of 1998.  SLUSA bars just about any class action that asserts a state law claim having the merest whiff of securities fraud about it.

A black hole sucks all things close by – including light! — into itself.  A black hole converts stuff into non-stuff.  Nothing escapes a black hole.

A black hole, if it had sentience, might envy SLUSA.

For SLUSA reaches far beyond the usual range of federal courts.  It ties a tether to, and puts the stink of death on, all class state law claims so long as the complaint or (in Texas and elsewhere) the petition "covers the prohibited theories, no matter what words are used (or disclaimed) in explaining them."  Segal v. Fifth Third Bank, N.A., No. 08-3576, slip op. at 6 (6th Cir. Sept. 17, 2009) (emphasis supplied).   

Allege negligence, SLUSA gets you.  Try breach of fiduciary duty, as Daniel Segal did, and SLUSA attacks.  Go with tortious interference, defamation, trespass to chattels, trespass quare clausum fregit, battery, deceptive trade practices, theft of trade secrets, conversion, breach of contract, breach of warranty, monopolization, civil conspiracy, price fixing, allocation of customers, even nuisance — and yet SLUSA awaits.

The claims in Segal bought the farm because they alleged that Fifth Third Bank betrayed trust account customers by using its control over funds in their accounts to buy products that enriched the bank but cost the customers.  The fact that the bank (allegedly) used deception to help its scheme proved fatal.

Nor did the court weep for the demise of class action treatment:

Segal claims that this approach allows SLUSA to "eliminate[] any remedy against an unfaithful fiduciary" short of removing the trustee.  Appellant's Letter Br. at 8.  "Congress," Segal adds, "could not have intended to prevent trust beneficiaries from pursuing damage claims for mismanagement against trust fiduciaries."  Id.  Yet Congress has done nothing of the sort.  "The Act does not deny any individual plaintiff, or indeed any group of fewer than 50 plaintiffs, the right to enforce any state-law cause of action that may exist."  [Merrill Lynch, Pierce, Fenner & Smith, Inc. v. ]Dabit , 547 U.S. [71,] 87 [(2006)].  SLUSA leaves open many avenues for claimants like Segal to vindicate their rights.

Segal, slip op. at 8.

Their Honors don't say what "avenues" the Segals of the world might now tread in their hopeful journey toward an award.  Nor do they concern themselves with the fact that SLUSA makes uneconomic — on purpose — the pursuit of state law claims by any but large individual claimants.  Or the fact that federal courts may kill even that way to go by consolidating 49 individuals' case with another one involving similar claims.

 It's really most sincerely dead.

 
John Harvard (1607-38).  He (1) didn't look like this, (2) didn't found Harvard, and (3) won the naming rights by dying two years after the place started.

Blawgletter® welcomes you, one and all, to this the 229th — and our third — Blawg Review!

The theme this week emerges, in full armor, from the brow of an Olympian figure:  a fourth child, Cambridge U. graduate, and English pastor — none other than John Harvard.  His death 371 years ago, on September 14, 1638, explains the timing.

 
HLS, per Above the Law, lost a key contest to Duke last week.  (Elie Mystal '03 serves as Editor of ATL.  See his third year paper (on cochlear implants) here.)

Blawgletter's creds for hosting a Cantab confab?  Pretty thin, we confess.  Yes, we did vote for Barack Obama '91.  And, sure, we got our J.D. from HLS.  But that happened 25 years ago . . . and our most famous classmate styles himself an infotainer.  Plus we went elsewhere for college.  Ahem.

Fear not.  Harvud may furnish the motif and get more than its share of mentions, but we'll do a fair survey of the blawgosphere from the week that just ended.  We hope you enjoy the journey.

 
As President, Rutherford B. Hayes '45 (1822-93) okayed a bill that let women lawyers for the first time argue before the U.S. Supreme Court.

The other HLS grad who made President supplies content for The Blog at whitehouse.gov.  The latest post presses the case for health care reform.

David Lat — a Harvard A.B. — keeps us up to date on law firm layoffs in Above the Law, which he managing edits.

Cornell law prof Michael Dorf '90 tweaks Chief Justice John Roberts '79 for making light of corporate influence in Dorf on Law.

Joseph E. Batchelder, III, offers his views about Securities and Exchange Commission rules and a new statute that aim to cabin pay to corporate titans on The Harvard Law School Forum on Corporate Governance and Financial Regulation.

Iustia Lexo Cano advises:

Dear Peter Wiggin: This letter is to inform you that you have received enough upvotes on your reddit comments to become president of the world.  Please be at the UN tomorrow at 8:00 sharp.

 
Cass R. Sunstein.  He doesn't look that scary.

The Washington Independent notes that U.S. Senators held up a vote on making HLS prof Cass Sunstein '78 the head of the White House Office of Information and Regulatory Affairs.  Their worry?  That he will ban hunting and let critters file lawsuits. 

Law Dork points out that Sunstein won the battle 57-40.

Tim Nuccio rants about an HLR case note that decried the demise of a Temple U. code barring "expressive, visual or physical conduct of a sexual or gender-motivated nature" if it had a bad purpose or effect.  The open letter to HLR Dean Martha Minow mentions that the author "will be attending law school next year and [that] I am extensively interested in joining a law review and publishing my own articles."

Over at John Palfrey, we learn of musings by "the managing partners of some of the world's leading law firms" – none from the U.S.  The MPs' thoughts include this bit:

A truly consistently first-class firm — the law firm equivalent, they say, of the Four Seasons in the hotel business — will continue to be able to charge a premium and will succeed.  If you can’t be consistently first-class across all offices, don’t try it.

Sports Law Blog hails the advent of Harvard Journal of Sports and Entertainment Law.

The Harvard library system just rolled out its Digital Access to Scholarship at Harvard service.  And you don't need a Harvard degree to use it!

DASH includes the Journal of Legal Analysis, which this summer printed the second number of its first issue.  Two of the JLA items deal with how judges decide cases.

Above the Law discloses that HLS will cut back on the free coffee.

The Situationist ponders the effect of Senator Edward Kennedy's death on health care reform.  It will serve "as a tool for greater Democratic engagement."  Of course.

Ex-HLS Dean Elena Kagan '86 made her Supreme Court debut on Sept. 10 in Citizens United v. Federal Election Comm'n, No. 08-205 (U.S.).  The case involves the first amendment right of corporations to speak via checkbook.  Transcript here.

Speaking of Citizens United, Jeffrey Toobin '86 urges the Chief Justice to "support a narrow, restrained campaign finance decision that Republicans and Democrats can embrace" and not to "hand down a broad, activist decision that turns our political system upside down."  "John Marshall or Earl Warren: the choice is his."

Over at Likelihood of Confusion, we hear of a trademark tussel between McDonald's and McCurrys in Bangkok:

Now, I’ve been on this story like grease on fries since forever.  McDonald’s is surely getting the home-town treatment here.  But any doubts I ever may have had that Ronald is in the right are dispelled whenever I read the phrase, “McCurrys Web site says that the name stands for ‘Malaysian Chicken Curry.’”  That’s right up there with the best of the transparently fake defenses — further proof that the Golden Arches guys are being treated like clowns.  

idealawg links us to an online Discover article on Truth and Memory.  The upshot?  What any police officer and trial lawyer will tell you:  memories change.

The always-cheery Richard Posner '62 riffs on "Unemployment and Depression" at The Becker-Posner Blog.

Robert Ambrogi with Media Law exposes shocking new facts about a town near the site of witch trials in the 1690s.  The selectmen of Hamilton have met in secret to talk municipal business, a burning-at-the-stake offense under the Open Meeting Law.

AdamsDrafting comes out for "confidentiality agreement" instead of "nondisclosure agreement".  AD likes putting things in the positive, you see.  It also warns against putting a hyphen after "non".

Ernie the Attorney waxes philosophical — about writing and standing on his head.  Ernie observes:

“The problem is we think we exist,” says Natalie Goldberg — author of Writing Down the Bones. Her point is that we should write and not worry about what other people might think of what we say. We are not what we think and yet that is how we see ourselves. As though our existence is established by our thoughts.

Mickey as the Sorcerer's Apprentice in Fantasia (1940).

Jordan Furlong writes about "The apprenticeship marketplace" for Law21.ca.  Clients don't want to pay for on-the-job training of newbies, he says.  Make the young ones apprentice, he suggests.

Paul Horwitz advises against giving profs what you think they want:

This approach yields few long-term benefits and only uncertain short-term benefits.  In my experience, the very best students acquire and apply a set of skills — reading a case or an exam question carefully, thinking about all its implications, thinking about both how to unpack it and how to "pack" it into a theme or ruling, thinking about how one case or subject matter connects with others and what big picture or set of themes emerges from all of this, producing an analysis that makes use of these conclusions in a concise and targeted way — that can be used across the board in both law school and legal practice.

PrawfsBlawg, "On Not Gaming the Law School System".

Scotusblog reports that Gitmo may soon expel many of those it has for so long kept behind chain link.  Some would rather stay.  Their native lands might treat them even worse.

Ever the sassy one, The Volokh Conspiracy relates a case in Finland.  A member of the Helsinki city council said ugly things about Islam and Mohammed.  His attack won him a fine of 330 Euros.

Should mediators intervene in religious conflicts?  Check out ADR Prof Law this week on that issue.

Ms.JD offers how-to-network advice to law students.  She ends with:

I get creative and focus on situations and relationships that are grounded in some mutually shared experience or interest. Those are the ones that are easiest to nurture and most likely to bear fruit.   

 
The new Kindle DX.

The University of Chicago Faculty Blog tells why the outfit that sells you an e-book reader doesn't care if someone steals it from you.  The thief likely will buy more e-books, and so will you — plus, you'll pay for another Kindle, too!

Abiola Inniss updates us in Caribbean Net News about intellectual property rights in Guyana and calls for legislation to address problems.

Last but far from least, Adam Liptak, on The Caucus Blog, describes the first official Court day of new Associate Justice Sonia Sotomayor.

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That does it for us this time.  A big thanks to Victoria Pynchon for her help.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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