But John Shuff plugged away, slowly accumulating credibility. His finest hour was the hearing on our motion for class
certification in November 1998. Class cert, of course, was the critical element distinguishing Ryan v. CARL from
Tasini v. Times.
Judge Smith opened things up with characteristic evenhandedness. “I am concerned about the fact that this lawsuit
was basically by a man who is not an injured party, but who, in fact, is using this as a vehicle to make a name for
himself as a litigation consultant,” she said.
Had I been standing at the bar rather than sitting in the gallery, I might have taken a lunge at the old girl. But when it
was his turn, Shuff calmly strode to the lecturn and said he would endeavor “to dig out of the hole that I find myself
in.” And in a brilliant presentation that could be a clinic at any law school in the land, he did just that, walking the
judge through the intricacies of Section 23 of the Federal Rules of Civil Procedure, which sets the standards for
class cert. “I think you’ll find that they fit like a glove here,” he concluded. The case, John added, was not about me,
whom he generously described as “an authors’ rights advocate for his entire adult life.” I’d had nothing to do “with
designing, testing, constructing or profiting from the [defendants’] scheme of copyright infringement. It’s akin to the
soda machine in the lunchroom. You put in your coins and out comes an illegal copy.”
The 1998 holiday season was long and cold. But in January 1999 an order came down from Judge Smith: class
certification! Victory was at hand, though not without numerous further twists, mostly because of CARL and UnCover’
s checkered corporate history and the difficulty of pinning down the right insurance carrier to take the hit.
Late in 1997, shortly after the filing of our suit, Knight Ridder, the newspaper chain, had sold Knight Ridder
Information, CARL/UnCover’s parent, to a British company, M.A.I.D., which renamed the combined new entity the
Dialog Corporation. Dialog wanted to unload CARL/UnCover but potential liabilities from our litigation made that
difficult, and early in 1999 Dialog effectively gave up, dumping CARL/UnCover back on founder Ward Shaw of
Denver for a pittance – $2.25 million, including a measly million in cash. (Barely three years earlier Knight Ridder had
bought the companies from Shaw, Lenzini, and the other original partners for a combined $14 million.) In turn, Shaw
last year separately sold CARL (to the Library Corporation) and UnCover (to another British company called ingenta).
By then a settlement had been reached in our case, virtually on the eve of oral arguments before the Ninth Circuit on
the defendants’ appeal of Judge Smith’s summary judgment order. The breakthrough came when Reidy pressed
Knight Ridder, which had owned UnCover from 1995 to 1997 – most of the statutory period covered by the alleged
copyright infringements – to agree to pick up $6.5 million of the $7.25 million settlement tab. UnCover, seemingly,
was worth more dead than alive.
In the meantime our case was overshadowed by a stunning new development in the National Writers Union-backed
Tasini v. Times. A few weeks before I left the union in ’97, a judge in New York, Sonia Sotomayor, had ruled in favor
of the publishers – apparently confirming the low view I held of the plaintiffs’ shoddy record in that case and of the
mismatch in the two sides’ legal talent. In October 1999, however, the Second Circuit Court of Appeals reversed
Sotomayor and found for the writers – vindicating the vision of Jonathan Tasini and the hard work of his David-vs.-
Goliath legal team.
Taken together, our class certification success and the sweepingly positive copyright law precedent in Tasini created
a dream scenario. If Shuff and Reidy could persuade the Robins, Kaplan home office to reinvest the anticipated
recovery from Ryan v. CARL, then they stood in the best possible position to pounce on a second action I had long
been proposing against another target with even deeper pockets.
By the same token, if Shuff and Reidy didn’t pounce, then some other vulture from the class-action aviary surely
* * *
WHICH LED TO A MORE pragmatic problem than the Duck Dodgers Dilemma – what I call the Curly Corollary.
Remember the Three Stooges episode in which the boys, in a tough spot, reenact Three Musketeers solidarity?
“One for all,” Moe trumpets, thrusting his hand forward for a team grip. “All for one,” Larry seconds. “And every man
for himself,” Curly adds with impish prescience.
Shocking to report, but there was a fault line running between the plaintiffs’ lawyers and their beloved
consultant/mascot – guaranteed money. All along I understood and accepted that the ethical rules prevented a
layman from having an equity interest in a case. (Why, that would be ambulance chasing!) As the first case showed
every sign of working out the way it had been drawn up on the chalkboard, all I expected was the security of a new
contract, along with a modest raise reflecting that I was no longer an entry-level consultant. Alternatively, I wanted a
straightforward concession by Shuff and Reidy that they weren’t interested in pursuing a second case, freeing me to
look elsewhere. Instead, when my contract expired in September 1998, I was allowed to twist in the wind from month
to month. Robins, Kaplan was a big enough organization that my invoices could fly in under the radar for a while. But
when discussion of a new contract continued to drag even after the class cert victory, I had a legitimate concern that
someone else would beat us to the punch and profit from a new multimillion-dollar field that I’d been just a little bit
instrumental in creating and sustaining. The road to plaintiffs still ran through me, and people who know how to
package class-action suits don’t grow on trees.
Openly exasperated by my insistence on negotiations, Dan Reidy tried several tacks with me. The first was to assert
that almost everything rattling between my ears constituted privileged and confidential attorney work product yadda
yadda yadda. After a point even he seemed to realize that this flunked the defecate-or-get-off-the-potty test.
Another angle by Dan during all this wheel-spinning was to suggest that I would be best served by shutting up and
keeping my lips in close proximity to John Shuff’s buttocks. As convincingly as a snake oil salesman, Dan hinted that
there might be a bonus for me at the conclusion of the case. He never got around to explaining how this squared with
one of his other pet themes, that he’d personally be lucky to clear a nickel on UnCover. I’d endured too many raw
deals as a writer to fall for the old Hollywood percentage-of-the-net gimmick. And, anyway, wasn’t the whole point of
our arrangement supposed to be that I was compensated non-contingently and that the lawyers, and only the
lawyers, took the risks and collected the big bucks?
For his last gambit, Dan turned to career counseling. He said I was playing this whole thing wrong. “You want to be
getting yourself into position to become a consultant who can command $200 an hour advising publishers on how to
avoid infringement exposure,” he said. Given my personality, background, and history as a union official, this
prospect was approximately as likely as the election of Benjamin Netanyahu as the next mayor of Berkeley.
Shuff, for his part, was concentrating on preserving his own future at Robins, Kaplan, Miller & Ciresi, which early in
1999 closed its San Francisco office. With all the hundreds of millions from the tobacco case, you might think the firm
could afford to maintain a presence in what at the time was the country’s hottest market – but then you wouldn’t know
a lot about the poisoning effect of big money. Instead of expanding, the firm’s partners were retiring, downsizing, and
bickering over how to divide the tobacco pie (or, in the case of the lead counsel in the tobacco case, Michael Ciresi,
running unsuccessfully for the Senate in Minnesota). Shuff himself would retire shortly after the UnCover settlement.
Two years earlier my cute copyright cases had been too small for the powers-that-be to waste energy stopping Shuff
from pursuing them. Now, with the tobacco fees flowing and the attendant dysfunction, the cases looked too chintzy
to bother backing at all.
Still, control of a prospective bonanza is everything, so when I let it be known that I was talking with other firms, Shuff
agreed to meet with me. He called the expiration of my contract six months earlier an “oversight” and sent me a letter
affirming that our agreement had rolled over for another year on the same terms and inviting me to alert him in the
fall so the oversight wouldn’t be repeated. This bought another six months for all of us to maneuver with our now-
splintering agendas. With the UnCover settlement basically stalled through all of 1999, Reidy, in between doing
heavy elbow work on the violin about how the case was destroying him financially, bought a truck and a house in Mill
Valley and moved his office to Sausalito. (The plaintiffs’ attorneys would eventually share fees totaling $2.9 million.) I
spent most of July with my family in Paris and, thanks to the magic of e-mail, no one was the wiser.
In September my contract expired again. This time Shuff didn’t even make the effort to return my calls; through
Reidy, he simply conveyed the message that I should be counting my blessings. What made the dynamic odd was
that Dan himself seemed to be finding a second wind for launching a new action, especially after the October
appeals court reversal in Tasini injected fresh urgency into the equation. But with each unfulfilled vow to get our
team reassembled and moving forward, Dan came off as more and more shrill, blustery, and unreliable. In December
I saw him in Sausalito. Dan made a big show out of circling the date in his calendar on which he intended to file the
second complaint, and of calling a Robins, Kaplan associate on speakerphone in my presence to prod him to turn
around the draft of the complaint. In addition, Dan authorized me to start contacting plaintiffs for the next suit, which I
thought was a step in the use of my services that was not to be taken lightly. And, indeed, after I promptly got a
couple of more plaintiffs into the picture, this latest drop-dead date for the second action came and went.
Now I felt my credibility with writer-friends was on the line. I commenced billing Robins, Kaplan at closer to the weekly
maximum than the minimum under the terms of my expired contract. Shuff retaliated by, for the first time, knocking a
few hundred dollars off one of my invoices before forwarding it to Minneapolis. Things were getting ugly.