In a 78 page document, the parties in the In re OpenAI Copyright Infringement Litigation, a collection of 13 lawsuits against OpenAI and Microsoft for copyright infringement (2 of which are stayed, Basbanes and Millette).
Probably the biggest dispute is over the appointment of the the plaintiffs’ Leadership Counsel, the first question in Judge Stein’s order.
Plaintiffs: Plaintiffs propose dividing the lawsuits into: (1) News Plaintiffs and (2) Class Plaintiffs. Millette v. OpenAI (the YouTube video case) is stayed. Then, Plaintiffs propose Leadership Counsel by committee of lawyers from each case:
“News Plaintiffs also agree to appoint a Leadership Committee comprised of the following four law firms and six attorneys:
- Susman Godfrey (counsel for The Times) o Lead: Ian Crosby o Co-Lead: Davida Brook
- Rothwell Figg (counsel for The Times and the Daily News Plaintiffs) o Lead: Steven Lieberman o Co-Lead: Jennifer Maisel
- Loevy and Loevy (counsel for CIR, The Intercept, Raw Story, and AlterNet) o Lead: Matthew Topic
- Klaris Law (counsel for Ziff Davis)
- o Lead: Lance Koonce
“The Class Plaintiffs respectfully request that the Court appoint Lieff Cabraser Heimann & Bernstein LLP (LCHB), Susman Godfrey LLP (SG), The Joseph Saveri Law Firm, LLP (JSLF), and Boies Schiller Flexner LLP (BSF) to serve as interim co-lead counsel for the Class Cases.
“The Class Plaintiffs also respectfully request that the Court appoint Cafferty Clobes Meriwether & Sprengel LLP (CCMS) as Chair of the Steering Committee and Cowan, DeBaets, Abrahams & Sheppard LLP (CDAS) and Matthew Butterick, Esq. as members of the committee.”
OpenAI and Microsoft: Agree on the division between (1) News Plaintiffs and (2) Class Plaintiffs, but oppose the Leadership Counsel by Committee approach.
“To conserve resources and minimize duplication, however, the Court should ensure the leadership structure promotes efficiency. Plaintiffs’ proposals do not do that because they do not empower any attorney to make decisions about (e.g.,) deposition protocols or other case-wide issues for any party other than its own client. Indeed, News Plaintiffs’ position is that “each counsel may participate in all proceedings before the court as fully as such counsel deems necessary” and that “Liaison Counsel shall not have the right to bind any party as to any matter without the consent of counsel for that party, except Liaison Counsel’s own clients.” This is contrary to standard practice in multidistrict litigation, in which the transferee court is empowered to “institute procedures in which one or more attorneys are selected and authorized to act on behalf of counsel and their clients with respect to specified aspects of the litigation.” Manual for Complex Litig. § 10.22. The Class Plaintiffs have not identified any leader at all.
“Appointing a Lead Counsel with the authority to speak on behalf of each subgroup will promote efficiency in conducting discovery, reaching stipulations, and narrowing the issues for the Court. As the Manual for Complex Litigation recognizes, “committees of counsel can sometimes lead to substantially increased costs” and “duplication of efforts.” Manual Complex Lit. § 10.221; see also Bolch Judicial Institute, Duke Law School, Guidelines and Best Practices for Large and Mass Tort MDLs at 30 (2d ed. 2018) (“[A] fairly simple structure, consisting of a lead counsel and a liaison counsel, is all that is required . . . [for] actions in which the plaintiffs generally assert the same or similar claims.”).”
The parties also proposed different schedules, including the sequence of class certification motions and summary judgment on fair use.