That’s because in a class action the plaintiffs have to be “representative” of the class they are supposed to represent.  If they are not then the class will not be certified and all the litigation can do is bind those plaintiffs who are actually present in the case.

As reported by Publishers Weekly, a recent decision kills the “class” part of the Google Books litigation:

A two-judge panel of the Second Circuit Court of Appeals yesterday rejected an $18 million settlement in the long-running class action suit filed by freelance writers following the landmark Tasini case, and in the process have likely killed the chances of a revised Google settlement. In a 2-1 ruling, the second circuit yesterday held that the district court which approved a settlement between freelance writers and publishers in the class action case known shorthand as Freelance “abused its discretion in certifying the class and approving the Settlement, because the named plaintiffs failed to adequately represent the interests of all class members.” New York Law School’s James Grimmelmann didn’t mince words. “The Google Books settlement—any settlement—is now dead,” he noted. “There is no square one: this case is going back to litigation.”

That’s because the Second Circuit in Freelance has now essentially ruled that big, general author classes are too broad to be certified, and cobbling together a suitable slate of subclasses in the Google case would be an arduous task. “Creating subclasses that track these different groups, then supplying them with their own skilled lawyers, and putting everyone in a room together to knock out a new settlement, it just isn’t going to happen,” Grimmelmann observes. “The expense would be absurd, it would take months, or, more likely years to pull off, and I still can’t imagine those negotiations succeeding, especially not after the level of vehement opposition to the original settlement.”

From my perspective, as a lawyer, this all makes perfect sense and it is ending up just where it should.


  1. Why such an ugly picture of a judge? Killing the Google Settlement is great move for writers. It means that vague class action suits can’t be used to strip us of our copyrights. The Author’s Guild, with some 8,000 most US members, can’t be said to represent all the author on the planet who’ve published a book sense 1922. Also, the GBS was effectively dead when the judge told the parties involved that any settlement would have to be opt-in, meaning with the author’s approval. Google has little interest in that sort of deal, particularly if it still left them on the hook for a $100 million plus book registry.

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