Wed 08 Feb 2006
A notice of appeal to the US Court of Appeals has been filed by a nonparty, Frederick D. Cooke, Jr. While the appeal has not yet been filed, it will appeal the hearing order entered on January 6, 2006. The hearing order contained an injunction that prevents anyone who has not opted out of the class action (which you cannot do as of this posting... I've tried) from "filing, commencing, prosecuting, maintaining, or intervening in (as members of a class action or otherwise), any claim, lawsuit, arbitration, administrative, regulatory or other proceeding arising out of [Sony BMG's XCP and MediaMax]".
Until the appeal is filed we won't know exactly what Mr. Cooke is complaining about, but I can speculate that he wants to move forward with his own suit against Sony BMG, and the Class Action Injunction is being used to delay his lawsuit.
The problem with this injunction is that it prevents those who don't want to be part of the class action from seeking relief the only way that they can through a lawsuit. The class action settlement isn't a terrible deal for most people. There are a number of people, however, who aren't going to be adequately compensated for their damages if they are forced to accept the class action incentives as their only compensation. With the injunction in place, it is impossible for one of these people to have their problem resolved in a reasonable time frame.
There are those who probably don't think that forcing those with otherwise valid claims against Sony BMG to wait until the class action is completely settled, or at least made final, before pursuing their own action. You must remember, however, that the people who want to bring these claims must do a lot to prove their damage. They need to maintain their computer in the state it was when it was infected in order to preserve it for evidence and examination. That means they'll need to spend money to get a replacement computer, or at least a new hard drive, in order to continue to have a machine. They also have the statute of limitations running against them, and will forever lose their ability to file their claim if the Southern District of New York forces them to wait too long.
The injunction benefits Sony BMG quite a bit. The longer they make plaintiffs wait, the fewer will be willing to pursue their individual actions. Hopefully the appeal will prevent future class actions from doing similar things.