Just when Bartz book authors’ Class Counsel prevailed in securing an interim order against ClaimsHero from making misleading overtures to members of the class to opt out, Class Counsel may have inflamed a new controversy over the opt out process.
ClaimsHero has modified its website as Judge Alsup ordered.
But, on Sunday, Judge Alsup raised questions about (1) whether he was “advised that tens of thousands of claims would ever be submitted before direct class notice was ever delivered.” Judge Alsup was “concerned that claims for more than 60,000 works have been submitted by class members without the benefit of direct class notice having been disseminated.” Specifically: “the claim form itself makes no mention of the right to opt out, nor does it provide a direct link to a document that would clearly advise them of their right to opt out.“
Bartz Class Counsel filed their answer yesterday:
But Judge Alsup said he “does not fully understand” Class Counsel’s response. And he’ll have more to say. Uh-oh.
Ominously, Judge Alsup issued a broad preservation order of all communications by all parties and their counsel, plus everyone enlisted to help the class action settlement process, for their communications “of every type, however informal, at all touching on claims and/or opt outs as made to class members“:
- the so-called Authors’ Coordination Counsel (Cowan DeBaets Abrahams & Sheppard LLP and Fairmark Partners LLP),
- Publishers’ Coordination Counsel (Edelson PC and Oppenheim + Zebrak, LLP),
- retained public relations people (Shape Advocacy),
- Industry Working Group members and related outfits (Association of American Publishers, Association of University Presses, Authors Guild, Independent Publishers Guild, International Publishers Association, Novelists, Inc., The Publishers Association Limited, Publishers’ Licensing Services, Romance Writers of America, Inc., Science Fiction & Fantasy Writers of America, Sisters in Crime, Society of Authors, Textbook and Academic Authors Association, Writers House, Writers’ Union), and
- anyone else class counsel or defendant (or defense counsel) has retained or used to communicate to class members about claims and/or opt-outs.
For all the diligence and hand wringing over the class action claims process that has already occurred in this case, it’s incredibly surprising that the timing, details, and mechanics of the opt out process apparently may not have received enough vetting, at least not enough to avoid it suddenly becoming a major issue right as the direct class notice is slated to be sent out.
I am not a class action expert, but it’s most surprising to me that the actual mechanics of class actions apparently have not coalesced around some best or standard practices, including how the process of opting out shall occur, such as what Judge Alsup pointed to: “”the claim form itself … mention … the right to opt out,” and “provide a direct link to a document that would clearly advise them of their right to opt out.”
It still seems early in the process. So, if there are any deficiencies in the opt out mechanics, there should be time to fix them. The Class Counsel did state that everyone can still opt out, even those who already filed claims to be in the class.
My suspicion is that most, if not, all the 18,000 people who have filed claims in the class want the money. That’s based on anecdotal interaction with some people who did file claims for the $3,100 per work payout. The choice between receiving $3,100 in 2026 versus seeking the uncertain prospect of having to file another lawsuit against Anthropic–perhaps winning or perhaps losing–is probably an easy one for people for whom $3,100 is meaningful.
DOWNLOAD JUDGE ALSUP’S PRESERVATION ORDER