The Authors Guild, Inc. et al v. Hathitrust et al

Filing 33

STIPULATION: NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between plaintiffs and defendants as follows:The Individual Defendants are hereby dismissed from the Action with prejudice. The caption in the Amended Complaint is deemed amended to reflect the substitution of the Substituted Defendants in the place and stead of the Individual Defendants. It as agreed among the parties that the operative complaint in the Action is the AmendedComplaint and that the operative answer is the Answer and that the parties shall not be obligated to, nor shall they, serve an amended complaint or answer reflecting the dismissal of the Individual Defendants and/or the substitution of the Substituted Defendants. SO ORDERED. (Signed by Judge Harold Baer on 12/21/2011) (ama)

KILPATRICK TOWNSEND 4 STOCKTON LLP
Jo. PeterSen (JP 9071)
Robert N. p~ (R.P 5757)
31 West S2nd street
14th Floor
New York, New YOIt 10019
Telephone: [phone]
Facsimile: (212) 775·8800

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
~~--rml-7'i4-l~~
DATE FILED:

Joseph M. Beck (admitted pro hoc vice)
Alex Fonoroff(adarlttedpro hIM; vice)
Andrew Pequignot (admitted pro hIM; vice)
Allison Scon R.olJeh (admitted pro hoc vice)
1J00 Peachtree Street
Suite 2800
Atlanta. Georgia 30309....530
Telephone: [phone]
Facsimile; (404) 81S-6SSS
Attorneys for Defondont3

UNITED STATES DISTRICT COURT
SOUTIIERN DISTRICT OF NEW VORK
TIfB AUTHORS GUILD, INC., el al.
Plaintiffs,

v.

11 CIV 6351 (HB)(JLC)

HATInTRUST. et aI.

STIPULATION

Defendants.

WHEREAS, on or about October 6,2011, plaintiffs filed an Amended Complaint
(the "Amended Complaintj in the above-captioned action (the "Actionj naming, among other

defendants, Julia Donovan Darlow, Laurence B. Deitch, Denise Hitch, Olivia P. Maynard,
Andrea Fischer Newman, Andrew C. Richner, S. Martin Taylor and Katherine E. White
(coJlectively, the "Michigan Regentsj. Richard C. Blum, David Crane. William De La Pena,
Russell Oould. Eddie Island, Odessa Johnson, George Kieffer, Sherry L. Lansing, Monica

Lozano" Hadi Makarechian, George M. Marcus. Alfredo Mireles, Jr., Norman 1. Patti2:, BoDDie
Roiss, Fmi Ruiz, Leslie Taug Sohilling. Bruoe D. Varner, Paul Wachter and Charlene Zettel
(collectively, the"Califomia Regents"). Jeffrey Bartell, Mark J. Bradley, Judith V. Cmin, John
Drew. Tony Evers. Michael 1. Falbo. Edmund ManydeedS. Katherine ~ointer, Charles Pruitt,

Troy Sbcrven, Brent Smith, Michael J. Specter, S. Mark Tylc. Jose F. Vasquez and David O.
Walsh (collectively. the "Wisconsin Reaents"). William R. Cast. Patrick A. Shoulders.
Maryellen Kiley Bishop, Bnwe Cole, Philip N. Eskew, Jr•• Cora J. Griffin, Thomas E. Reilly, Jr.,
Derica W. Rice and William H. Strong (collectively, the "Indiana Trustees") (all ofthe foregoing
named individuals, collectively. the "IUdividual Defendants");

WHEREAS. the defendants in the Action (including the Individual Defendants)
served their answer on December 2, 2011 (the "Answer").

WHEREAS, the defendants warrant and represent that "HatbiTrust" is the name
of a service of the University of MiChigan in which the Universities and other institutions
participate lmder agreements with UM (the "Hathitrust Service"); and
WHEREAS, in lieu of engaging motion practice on the issue of whether the
Individual Defendants are sufficiently involved in the alleged activities set forth in the Amended
~mplaint

to support jurisdiction under Ex Parte Young, 209 U.S•. 123. 28 S.Ct. 441, 52 L. Ed.

714 (1908) and its progeny, plaintiffs and defendants have agreed to substitute certain other
individuals in the place and stead ofthe Individual Defendants in the Action.

NOW THEREFORE. IT IS HEREBY STIPULATED AND AGREED, by
and between plaintiffs and defendants. as follows:

1.

The Individual Defendants are hereby dismissed from the Action with

prejudice.
2
~:I04'OOU

2.

Mary Sue Coleman, President, The University of Michigan, is herdly

substituted as a named defendant in the Action in the place and stead ofthe Micbigau Regents.
3.

Made O. Yudof, President. The University of California, is hereby

substituted as anamed defeDdant in the Action in the place and stead of the California Regents.
4.

Kevin Reilly, President, 'The University of Wisconsin System, is hereby

substituted as a named defendant in the Action in the place and stead ofthe Wisconsin Regeots.
S.

Michael McRobbie, President. Indiana University. is hereby substituted as

a named defendant in the Action in the place and stead oftbe Indiana Trustees.
6.

In view of the substitutions set forth above, tbe individuals substituted in

. the place and stead of the Individual Defendants (the "Substituted Defendants") agree not to

challenge the Amended Complaint on the grounds that the Substituted Defendants are not
sufficiently involved in the alleged activities set forth in the Amended Complaint to support
jurisdiction under Ex Parte Young, 209 U.S. 123. 28

8.6. 441, 52 L. Ed. 714 (1908) and its

progeny. Eacl1 Substituted Defendant represents that he or she bas the authority and control
necessary to cause his or her respective university to comply with the terms of an injunction or
other court order with respect to the alleged activities set forth in the Amended Complaint in the
event the Court orders such relief. Further, Mary Sue Coleman represents that she has the
authority and control necessary to cause the Hathitrust Service to comply with the terms of an
injunction or other court order with respect to the aUeged activities set forth in the Amended
Complaint in the event the Court orders such relief.
7.

Nothing in this StipUlation shall impair any defenses not expressly

addressed herein inc:luding. without limitation. all defenses under the 11 th Amendment of the
United States Constitution (for example, and solely for illustrative purposes, the Substituted

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Defendants reserve their right of qualified immunity under the discretiODBl')' fi.mctions doctrine
and reserve the right to argue that alleged infrlnscment of copyrights does not constitute a
violation offederal law for purposes ofEx Parte Young).
8.

The caption in the Amended Complaint is deemed amended to reflect the

substitution ofthe Substituted Defendants in the place and stead of the Individual Defendal1ts. It
lIS

agreed among the parties that the operative complaint in the Action is the Amended

Complaint and that the operative answer is the Answer and that the parties shaU not be obligated
to, nor shall they, serve an amended complaint or answer reflecting the dismissal of the

Individual Defendants and/or the substitution of the Substituted Defendants.
Dated: New Yark, })few York

December .f!, 2011
FRANKFURT KVRNIT KLEIN &;
SELZ,P.C.
By:

KILPATRICK T['!nMENlIl4
p

STOCKTO

~'J rl... \-' ~ ~;-...~

By: __~~~~~~==_____
oSeph Petersen (JP-9071)
.
lit

Edward H. Rosenthal (ER-8022)
Jeremy S. Goldman (J0-7402)
488 Madison Avenue
New York, NY 10022
[phone]

31 West 52" Street,]4 Floor

New York, New York 10019
[phone]

Attorneysfor Defendants

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