The Authors Guild v. Google, Inc.

Filing 17

MOTION, to stay, on behalf of Appellant Google, Inc., FILED. Service date 08/10/2012 by CM/ECF. [715590] [12-3200] [Entered: 09/10/2012 11:25 PM]

IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
___________________________________
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THE AUTHORS GUILD, INC.,
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Associational Plaintiff, BETTY MILES,
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JOSEPH GOULDEN, and JIM BOUTON, )
on behalf of themselves and all other
)
Case No. 12-3200
similarly situated,
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Plaintiffs-Appellees,
)
)
v.
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GOOGLE INC.,
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Defendant-Appellant.
)
____________________________________
DECLARATION OF ARI HOLTZBLATT IN SUPPORT OF
DEFENDANT-APPELLANT GOOGLE’S UNOPPOSED
MOTION TO STAY DISTRICT COURT PROCEEDINGS
PENDING APPEAL OF CLASS CERTIFICATION ORDER
I, Ari Holtzblatt, declare as follows:
1.

I am a member of the law firm Wilmer Cutler Pickering Hale and

Dorr LLP, counsel for Google Inc. in this matter. I make the following declaration
based on my personal knowledge and, if called upon to do so, could testify
competently to the matters set forth herein.
2.

Attached hereto as Exhibit 1 is a true and correct copy of a letter faxed

by counsel for Google Inc. to the Hon. Denny Chin, U.S. District Court for the

Southern District of New York, in The Authors Guild, et al. v. Google Inc., No. 05cv-8136, on August 17, 2012, requesting a stay pending appeal.
3.

Attached hereto as Exhibit 2 is a true and correct copy of Judge

Chin’s order, dated August 29, 2012, denying Defendant-Appellant Google’s
request for a stay pending appeal.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct. Executed on September 10, 2012,
in Washington, D.C.
/s/ Ari Holtzblatt
Ari Holtzblatt

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Exhibit 1

Daralyn J. Durie
415-362-6666 (main)
[e-mail]

August 17, 2012
VIA FACSIMILE TO 212-857-2346
Honorable Denny Chin
United States District Court for the Southern District of New York
Daniel Patrick Moynihan U.S. Courthouse
500 Pearl Street
New York, New York 10007-1312
Re: The Authors Guild, et al. v. Google Inc.
No. 05-CV-8136
Your Honor:
Google writes to request that this Court enter a stay of proceedings in the above-captioned case pending
the Second Circuit’s resolution of the class certification issue currently before that court in this case.
We understand that Plaintiffs are considering whether to oppose this request.
As this Court is aware, the United States Court of Appeals for the Second Circuit recently granted
Google’s petition for permission to appeal this Court’s order granting class certification in that case. See
ECF No. 1057; Authors Guild v. Google, No. 12-3200 (2d Cir. filed August 14, 2012). Because the
issues pending before the Court of Appeals may have a substantial impact on the parties’ cross-motions
for summary judgment, a stay pending appeal should be entered.
The most efficient and appropriate path is to allow the Second Circuit to resolve the class certification
issues before proceeding with dispositive motions on the merits. The parties’ merits arguments depend,
in part, on the scope of the case: cross-motions for summary judgment directed to the entire class of
works must be framed differently from cross-motions for summary judgment directed only to a subset of
those works.
In addition, unless a stay is entered, the merits of this case will be adjudicated before a final decision on
class certification, before class notice, and before the opt-out period. See, e.g., Brecher v. Republic of
Argentina, 06 CIV 15297 TPG, 2010 WL 3584001 (S.D.N.Y. Sept. 14, 2010) (recognizing “the
importance of class notice before the merits of the case are adjudicated” and deferring summary
judgment motions); Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995) (“The purpose of Rule
23(c)(2) is to ensure that the plaintiff class receives notice of the action well before the merits of the case
are adjudicated.”). Proceeding with the merits before the opt-out period risks serious prejudice to
Google: if Google prevails on the merits, all class members will have the incentive to opt out and litigate

Honorable Denny Chin
August 17, 2012
Page 2
their claims separately, depriving Google of a classwide victory. Conversely, if Plaintiffs prevail on the
merits, no class members will have the incentive to opt out. It is unfair for class members to be able to
make an opt-out decision already knowing the outcome of the lawsuit.
For the foregoing reasons, the Court should stay the proceedings in this case pending resolution of the
class certification issue currently on appeal, and that the Court set a status conference to be held within
14 days of issuance of the mandate on appeal. A proposed order is attached hereto.
Respectfully submitted,

Daralyn J. Durie
DJD:jp
cc (via email only):

Michael J. Boni, [e-mail]
Joanne E. Zack, [e-mail]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
THE AUTHORS GUILD, INC., et
al.,
ORDER

Plaintiffs,

05 Civ. 8136 (DC)

v.
GOOGLE INC.,
Defendant.

CHIN, Circuit Judge
IT IS HEREBY ORDERED as follows:
The deadlines set forth in the Court’s previous scheduling
orders are hereby VACATED.
Proceedings are hereby STAYED pending resolution of Authors
Guild v. Google, Case No. 12-3200 in the United States Court of
Appeals for the Second Circuit.
The Court will calendar a status conference within 14 days
of issuance of the mandate in the above-noted appeal.
SO ORDERED.
Dated:

New York, New York
August ___, 2012

_____________________________
DENNY CHIN
United States Circuit Judge
Sitting by Designation

Exhibit 2

Case 1:05-cv-08136-DC Document 1062

Filed 08/29/12 Page 1 of 3
USDCSDNY
DOCUMENT
ELECTRONICALL Y FftED
DOC #: _ _ _-+_~__

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATE FILED:

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THE AUTHOR'S GUILD, et al.,
Plaintiffs,
ORDER

- against 05 Civ. 8136 (DC)
GOOGLE, INC.,
Defendant.
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CHIN, Circuit Judge

The Court is in receipt of a letter from defendant
Google, Inc.

("Google"), dated August 17, 2012, requesting that

the Court stay all proceedings in this case pending review by the
Second Circuit of this Court's May 31, 2012 Order granting class
certification (the "Class Certification Order").
not responded to Google's letter.

Plaintiffs have

For the following reasons, the

application is denied.
Federal Rule of Civil Procedure 23(f) provides that an
appellate court may hear, on an interlocutory basis, an appeal of
a district court's order granting class certification.

Rule

23(f) expressly provides, however, that such an appeal "does not
stay proceedings in the district court unless the district judge
or the court of appeals so orders."

Case 1:05-cv-08136-DC Document 1062

Filed 08/29/12 Page 2 of 3

On August 14, 2012, the Court of Appeals granted
Google's petition for permission to appeal the Class
Certification Order.

The Court of Appeals did not order a stay

of proceedings in this Court.
In my view, a stay is not warranted.
some seven years old.

Discovery is complete.

This case is now
Both sides have

filed summary judgment motions, and but for the fact of
plaintiffs' counsel's unfortunate illness, opposition papers
would have been submitted by now.

A stay pending appeal would

significantly delay the merits, perhaps for as much as a year
or even more.

The merits would have to be reached at some

point in any event, and there simply is no good reason to
delay matters further.
Google's argument that it would be unfair to decide the
merits of the case before the end of the opt-out period for class
members is surprising, in light of Google's fervent opposition to
class certification.

Indeed, should Google prevail on its motion

for summary judgment and, as it fears, class members are
motivated to opt out of the class, Google would be in no worse a
position than it would have been in had it prevailed on the class
certification motion and the plaintiffs had been forced to
litigate their claims individually.
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And should plaintiffs

Case 1:05-cv-08136-DC Document 1062

Filed 08/29/12 Page 3 of 3

prevail on summary judgment, the goal of efficiency would be well
served as fewer plaintiffs are likely to opt out.
The parties shall proceed with the briefing on the
cross-motions for summary judgment, as previously ordered.

SO ORDERED.
Dated:

New York, New York
August 28, 2012
DENNY CHIN
United Stat s Circuit Judge
Sitting by Designation

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