CRASS ACTION
page 4
Since late summer a prominent San Francisco litigator, Spencer Hosie, had been expressing interest in taking over
and confidence that Robins, Kaplan could be persuaded to bow out gracefully. Spencer advised me to ask Reidy to
meet with him whenever Dan decided he’d had it with Shuff. Early in 2000 Dan negotiated a co-counsel agreement
with Hosie Frost Large & McArthur.

Dan later had second thoughts and either reneged on his deal with Spencer or backed out of it in a timely fashion,
depending on whose version you choose to believe. What mattered to me was that in late February Dan had told me
to come to terms myself with Hosie Frost for the second case and to so inform John. I did. John had been invited to
speak at a March conference at his alma mater, the University of Akron Law School; at his request I ghosted his
speech and also continued to advise Shuff-Reidy on cost-effective ways to publicize notice of the UnCover
settlement by using the web and soliciting the cooperation of authors’ organizations. (The lawyers would cherry-pick
some of my suggestions before paying Arthur Andersen, the huge accounting firm, more than $500,000 to set up a
fancy website and administer class notice – tasks I would gladly have handled far more skillfully at a fraction of the
price. For more on this aspect of the story, click
here.)

In late March, Dan, who had refused to let me sit in on any of his meetings with the Hosie Frost people, unilaterally
decided to ditch them. The UnCover settlement was finally on paper, which gave him and Shuff something substantial
enough to persuade the Robins, Kaplan board to approve the next case. Dan and John cobbled together a new
team including another Bay Area-based Robins, Kaplan partner, who was about to go on maternity leave, and the
San Francisco office of McCutchen, Doyle, Brown & Enersen. In full snake-oil mode, Dan left a series of voice and e-
mail messages inviting me to come home – with, of course, no guarantees for me and no plan for making amends
with Hosie Frost, which was already paying me. The phrase “a day late and a dollar short” comes to mind.

I checked with Hosie Frost to see what they wanted me to do. They said screw Reidy. I won’t pretend I disagreed.
And I knew just what to do.

I called Joan Ryan and Arlie Hochschild, name plaintiffs in the first case who were eligible to serve the same role in
the second one, and explained that I was no longer under contract to Robins, Kaplan. I suggested that my friends
might want to stand clear of this particular micturating contest. Within a matter of days I also found Hosie Frost three
new plaintiffs: New York-based bestselling author Gerald Posner and California freelancers Michael Castleman and
Jay Feldman.

A Robins, Kaplan partner sent me a letter, with garbled facts and shaky literacy, accusing me of violating my expired
“consultanting” agreement and demanding that I cure the breach or face legal action. This bit of saber-rattling was
disavowed by Shuff when he returned from an Italian vacation.

Reidy fired a final e-mail salvo, calling me a double-crosser with bad “kharma.”

                                                   *     *     *

AFTER ALL THIS ADRENALINE IT would be nice to be able to say that the second action chugged inexorably toward
a nine-figure recovery that funded a multimedia licensing system operated by an industry-wide consortium of content
providers and creator and library groups. Oh, and did I forget to mention the $2 million bonus check payable to yours
truly?

Alas, life isn’t as tidy as Erin Brockovich. Spencer Hosie has a reputation for being a first-rate plaintiffs’ lawyer –
smart, aggressive, thorough. He made his name representing the governor of Alaska in a price-fixing case against oil
companies, and he’s in the middle of handling a similar case, to the tune of several billion dollars, on behalf of the
governor of Hawaii. But after Shuff and Reidy were history, it turned out that Spencer really didn’t have the time or
resources to do my case. So he had his partner George Frost take the elevator up three floors in their building, the
Spear Street Tower, and bring in another co-counsel, Brobeck, Phleger & Harrison. Brobeck had always specialized
in corporate defense, but a group there, headed by Gary Fergus, was looking to take on innovative plaintiff work.

Brobeck spent months reinventing the wheel. I was rarely asked for advice, and they took their sweet time answering
my questions. In July it was determined that we needed another plaintiff to cover the infringements of one of the
defendants, so I immediately lined up Bob Treuhaft of Oakland, on behalf of the estate of his late wife, Jessica
Mitford. (Mr. Treuhaft, a wonderful gentleman, himself recently died at age 89.)

“My” second case,
Posner et al. v. Gale Group et al., was filed in San Francisco on August 14, 2000. You could read
all about it the next day in the
Wall Street Journal. Gale Group, formerly known as Information Access Company, was
the original target of my Operation Magazine Index campaign at the writers union in 1994.

The next day a nearly identical class-action suit was filed in New York by a group of plaintiffs including the Authors
Guild.

The next week yet another “me too” suit was filed in Delaware. The plaintiffs’ co-counsel was Girard & Green, a San
Francisco class-action factory. One of Girard’s attorneys was A.J. De Bartolomeo, a former Robins, Kaplan associate
and Dan Reidy’s old law school friend.

Needing to position themselves as lead counsel in complicated multidistrict litigation consolidation, our lawyers
amended our complaint, refiled it in New York, and added the National Writers Union as a plaintiff and the general
counsel of the union’s parent United Auto Workers as a co-counsel.

So let’s go over this one more time. In ’97 I’d become a consultant because I was tired of working for the union and
because the litigation I had in mind was ahead of the curve. Three years later the union was calling the shots in my
second case in association with a corporate defense firm. Folks, this wasn’t strange bedfellows. This was Armistead
Maupin on steroids.

Then, on November 6, the U.S. Supreme Court delivered what might have been a crushing blow to the authors’ rights
juggernaut by agreeing to hear an appeal from the publishers in
Tasini v. Times. This new class-action industry
ground to a halt. But as we saw confirmed seven months later, the granting of certiorari doesn’t determine the merits.
The justices merely sought to put their imprimatur on an important and novel issue, and when they examined the
plain language of the statute, the legislative history, and the policy arguments, they agreed with the Second Circuit
and the authors by a 7-to-2 vote. When you have Ruth Bader Ginsburg and Antonin Scalia both on your side, you
must be living right. Jonathan Tasini won his case across the board. The lawyers didn’t need my great facts any
more. And their road to plaintiffs no longer ran through me.

Without a whimper and to their credit, Hosie Frost Large & McArthur paid off my consulting fees through February
2001 even before the good news from the Supremes. For the record, that agreement guaranteed me 20 hours a
week of billings at $75 per hour. Across 52 weeks this amounted to about one percent of the recovery in my first
case and an even tinier fraction of the probable recovery in the next one. Or to put it another way, my fees equaled
the cost of a couple of paralegals standing around staring at boxes of documents.

What was a transforming professional experience for me was nothing more than a drop in the bucket of shark-
infested waters.


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