Tuesday, July 2, 2013
The 2nd Circuit has ruled that a lower court decision certifying a class action in the Google book scanning lawsuit is "premature."
The court said in part:
Putting aside the merits of Google's claim that plaintiffs are not representative of the certified class-an argument which, in our view, may carry some force-we believe that the resolution of Google's fair use defense in the first instance will necessarily inform and perhaps moot our analysis of many class certification issues, including those regarding the commonality of plaintiffs' injuries, the typicality of their claims, and the predominance of common questions of law or fact, see Fed. R. Civ. P. 23(a)(2), (3), (b)(3). ... Moreover, we are persuaded that holding the issue of class certification in abeyance until Google's fair use defense has been resolved will not prejudice the interests of either party during the projected proceedings before the District Court following remand. Accordingly, we vacate the District Court's order of June 11, 2012 certifying plaintiffs' proposed class, and we remand the cause to the District Court, for consideration of the fair use issues.
The court indicated that the lower court should consider the merits of Google's fair use defense before certifying the class. This lawsuit has been going on since 2005.
The case is The Authors Guild v. Google.
More here from the New York Times.