Tuesday, January 20, 2009

Practice tip: settlement strategy in post-announcement period needs to reflect possible changing circumstances

Over the years, I haven't talk much about "settlement" with the RIAA, since their scorched earth policies, and their attorneys' self-serving tactics, have not been conducive to the normal give-and-take and compromise to which most of us litigation practitioners are accustomed.

But, in the wake of the December 19th announcement that the RIAA is folding up its tents, and the January 4th announcement that the RIAA and MediaSentry have parted company, and in view of the cessation of some of the "John Doe" cases, we may be in a time of changing circumstances, and I think it advisable that we take stock of the current circumstances in advising our clients.

1. It is important to advise our clients whose identities have not yet been turned over of the instances in which the RIAA has dropped "John Doe" cases lately, prior to receiving the sought after "discovery". In BMG v. Does 1-14, for instance, 2 of the 14 defendants had "settled" when the case was dismissed. They probably could have avoided making those payments had they sat tight.

2. It is important for us to recognize that the settlement decision-making authority may have passed from one person or persons to others. Meanwhile the Holme Roberts & Owen lawyers who are actually handling the settlement "negotiations" are continuing their self-serving strategy of trying to keep as many of the cases going as possible by making settlement as difficult as possible. In such a climate, I strongly recommend that every practitioner who is representing a client interested in settling put a settlement offer in writing, either by letter or by email, to guarantee that it gets transmitted without embellishment to the decision-maker(s). The HRO lawyers will ALWAYS try to do it with a telephone call. For you to rely on telephone conversations would be a mistake.

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