The Punditocracy Gets Sharper on Linda McMahon

Anita,

This is addressed to you, cc to Chuck, only because I’m trying to minimize the awkwardness of a three-way discussion.

After sleeping on this (or not), I’ve reached a dead-end at the intersection of Tasini and Muchnick. My takeout from the collapse of the settlement negotiations is that, absent bold action, the objection project is on course to become Tasini II. I want no part of such an outcome, either substantively or for my “legacy.”

Your principled stance on the license has helped clarify that danger.

Further, you have noted the real issue of Chuck’s fees.

I’m perfectly comfortable proceeding on the merits with the Second Circuit. My concern is that the result there doesn’t matter and the defendants know it doesn’t matter. If we lose, we’re dead. If we win, the whole negotiation restarts from scratch while the defendants go full-speed ahead with a new generation of their “facts on the ground.” The “standstill agreement” … the years of mediation while the Freelance plaintiffs never even sought injunctive relief … the settlement amendment that wound up being a fig leaf for manipulation of claims data that would have exposed the C Reduction – the pattern is clear.

As Boni’s last note acknowledges, the recent round of talks failed not over a few hundred thousand dollars here or there; that’s chump change. It failed over our refusal to sign off on yet another standstill agreement, involving ProQuest and the leading publishers, by which only one side would have stood still.

Where am I going with this? I propose that Chuck strongly consider an unorthodox new court filing that blows the lid on the C Reduction fraudulence, using the information you’ve just shared. As  I understand it, the parties arguably opened the door for this by once again illegally introducing outside-the-record facts into their briefs. So I see it as an opportunity to re-implement and perfect the exercise Chuck practiced earlier. Now that the Supreme Court has held the Second Circuit’s feet to the fire by not allowing them to punt the whole case on jurisdictional grounds, perhaps it will help Judge Walker focus the other two panelists on what is really going on here – that the Defense Group simply has no intention of obeying the law of the land, and unlike Google, doesn’t even want to make the investment of selling a comprehensive new information-delivery paradigm or stepping up to the plate as a public utility.

Given that Chuck’s fees and our goals for the objection project remain far over the horizon without this tactic, I feel we have little to lose. And we have something important to gain: our own clear historical record of what has been taking place, thanks to inadequate representation on our side, since 2001. This is the equivalent of the E. Howard Hunt letter to Judge Sirica that broke open the Watergate scandal. Someone has to write it.

Best,

IrvMcMahon is hit with questions about the way she ran the family’s World Wrestling Entertainment, which employs more than 100 wrestlers who bang each other up in rings around the world, without the benefit of a company health plan. (McMahon claims the wrestlers do get seminars on shopping for insurance, and I think I speak for us all in saying that that is not the same thing.)