December 5, 2010.
1. Consent Judgment v. Settlement. The caption identifies a settlement, and Mr. Goldman says they are very much like each other. We should be careful when making comparisons. A lion and a gazelle are like each other in that they both have four legs, but that does not make one the other. On February 16, 1862, General U.S. Grant said to General S.B. Buckner, "No terms except an unconditional and immediate surrender can be accepted." It is true that concession by unconditional surrender does settle matters, and acceptance of surrender is an agreement, of sorts, but that does not make unconditional surrender a settlement agreement.
Plaintiffs drafted a consent judgment of two sentences and presented it
to Google. For long hours at the judicial
status conference with Magistrate Judge
Bissoon, Google tried to change the terms.
Unacceptable. The Consent Judgment entered
is exactly as first presented by Plaintiffs
to Google, with the exception of "So
ordered" which was added in the final before
the Judge's signature. I can tell you this
because a consent judgment is not a
2. The Mistake. Google's actions are not a mistake or accident. Here is Google's exact language in one of many filings:
"Plaintiffs' allegation of a 'private road' sign at the top of their street standing alone is insufficient to negate Google's privileged and trivial entry upon Plaintiffs' property."
Google asserts in pleadings that "No Trespassing Private Road" signage cannot stop Google. Forget media spins. This is what Google tells the Courts in papers that people tend not to see or read through carefully. Google admits intentionality. Google admits is not a "mistake"; Google says it has a legal right to ignore signage.
The entry of judgment is that Google is an "intentional trespasser." The concept of an "accident" or a "mistake" is a negligence concept. The entry of the judgment is not for negligence, but for the intentional tort of intentional trespass.
What confounded Google is that Google intended to win not by being right, but by attrition, and the attrition did not occur. The Borings just would not give up, even in light of Google's threats and mean tactics. If you want to do a symposium, we can explain these in detail.
3. No Judge Opinion. The question of fact for a jury is the jury's role, not the judge's. This case was to be a jury trial. The entry of liability from the jury would have been simply that Google was found to have intentionally trespassed. Google could not defend that it was not on the property, because there are pictures. Therefore, Google would have had to "stick to its story" that it has a legal right to enter everyone's private property, pass "No Trespassing Private Road" signage by a "general custom." That argument would have infuriated a jury, and Google knew it. Google had to concede because time was up. Paper arguments were over. It was time for some Google executive to look a jury in the eye with that argument.
4. Fees. Forget fees. Attorneys have a job to do. It is not always about the money. Sometimes it is. This was not one of those times. The issues here were not little issues, even if Google wants to spin it that way. This case started an important conversation and had a positive result with an expose about Google's intention and conduct on many levels.
5. The Victory. Each person will assess the victory and circumstances in accordance with his or her own education and experience. We find the victory to not be trivial, but fundamentally important, in a larger sense.
In the larger sense, first, the case tends to wake us up and start an important conversation. Second, the case teaches us and our children not to give up. The Borings could have given up and been tread upon. The Borings could have given up when the case was dismissed. The Boring could have given up when Google kept trying to play head games with them. But the Borings stuck it out. Ms. Boring, a school teacher, can now teach her students first-hand to fight back and not be tread upon, in the traditional American spirit.
Anyone who has heart will see it.