Caucus replies to the AALL Caucus Formation Policy Survey

AALL has appointed an Executive Board Special Committee on Caucus Formation Policy. You can read its charge here. The Committee recently asked Caucus Chairs to respond to an AALL Caucus Formation Policy Survey. In the interest of transparency, we post our replies here. We believe that caucuses represent a “unique, grassroots forum for AALL members to participate in their Association.” We underscore the difficulty of crafting caucus policies that do not harm this unique purpose. The work of the Committee thus deserves a broader hearing among all AALL members who value grassroots participation. We have asked the Committee to allow us to comment on any proposed caucus policies with enough time for review by the AALL before its next Business Meeting.

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Open Letter to Vendor Liaison Margie Maes On Caucus Priorities & Plans

From: AALL Consumer Caucus
To:  Margie Maes, AALL Vendor Liaison
Date: February 7, 2011

Re: Caucus Priorities & Plans

Dear Margie,

The AALL Consumer Caucus was delighted to see your goals for 2012.  We applaud your plans and hope to support your efforts.  We were very glad to be asked for input about directions for AALL’s efforts in the coming year, and have been working on a response.  We want to particularly applaud the choice of Carol Nicholson as the new editor for the Price Index.  We would like to recommend that the Price Index committee consider including as broad a spectrum of true supplementation costs as possible for ALL vendors. This information is available from a reliable source, the Legal Information Buyers Guide, from New England Law Press, winner of AALL’s 1998 Joseph Andrews Bibliographical Award, and the 1999 Connie E. Bolden Significant Publications Award.

The Consumer Caucus plans to invite the broader membership of AALL to engage in a conversation about which issues should become a top priority this year.  We hope to use the AALL Daily Digest as a forum.  We hope that if we begin a conversation with one or two fairly wide-spread issues that affect many libraries, we can get a good chat moving.  It is possible that we may also mount a Facebook presence for this effort and work to engage AALL members through this forum as well.  We hope then to actually survey members on which issues they think are most important.  We would like, ideally, to generate a strong consensus around one short-term goal and perhaps one long-term goal for a consumer-oriented issue.  We would certainly share the results of these conversations with you.

Sincerely,

Betsy McKenzie
On behalf of AALL Consumer Caucus

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Standing Together For Consumer Advocacy

Several Caucus members have recently expressed the need for us to stand together. Thus Marie Newman said that “no law library today is immune from the pressures of the marketplace, and we need to stand together in advocating for the needs of our institutions and users.” In her law-lib message of November 8th, Bess Reynolds invited everyone to participate: “We want to make our Caucus as responsive as possible to the needs of AALL members. You can help us by joining. Even if you cannot join us, we welcome your suggestions and insights.” Finally, Joe Hodnicki observed that “all market sectors represented by AALL members can and should work together,” even as he added  in his Law Librarian Blog post that he was not representing the Caucus.

Our Caucus belongs to every AALL member. We want to respond to your interests and concerns.  If you support our purpose, how do you think we should pursue it? If you do not support it, or feel ambivalent, what are your concerns? All of us share the same fundamental values as law librarians, even where some of us may disagree on their application to consumer advocacy. Our shared values allow us to explore not only our differences over consumer advocacy, but our overlooked opportunities for consensus.

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AALL Executive Board unanimously approves recognition of an AALL Caucus on Consumer Advocacy

(From Michael Ginsborg’s statements to the Caucus email list, as edited by Jamie Marie Keller. Marie S. Newman has also posted on our recognition here.)

On November 5th, with Michael Ginsborg in attendance, the AALL Executive Board unanimously approved a motion to recognize the AALL Caucus on Consumer Advocacy with a slightly amended purpose. The approved purpose is “The AALL Caucus on Consumer Advocacy will recommend to AALL  the AALL Executive Board that it petition appropriate government bodies for specific remedies to anti-competitive and unfair business practices by legal information sellers.”

There were two main concerns about the Caucus from the Executive Board. First, the Executive Board was concerned about the undefined relationships between the Caucus and the Vendor Liaison and CRIV. Margie Maes, Vendor Liaison, considers it her responsibility to develop a policy under which AALL would pursue consumer advocacy, and hopes to define the role of AALL in consumer advocacy with a policy ready for the Spring Board meeting. CRIV’s purpose, to facilitate communications between AALL members and vendors, was also brought up. This is not what the Caucus proposes to do.

The second concern the Board had was that the Caucus would end up speaking on behalf of AALL, or otherwise risk AALL liability, and would lack sufficient oversight. One board member responded by underscoring the limited nature of the Caucus’ purpose. Another board member stated that the Board can address that contingency if it arises.

Our member-driven Caucus was held out by a board member as an example of spurring grassroots interest, which AALL President Darcy Kirk agreed was important to AALL.

Michael Ginsborg sent the following to the Caucus’ email list: “I am grateful for your kind thoughts. Of course, I am just as grateful to you [our members]. Our recognition owes to your persistence, dedication, patience and hard work. I told the AALL Board how amazed I was at your level of enthusiasm, energy and engagement. I said that I had never seen anything like it. Our message here was even more compelling due to support from PLL-SIS and petition signatories. (For helping gain PLL-SIS support, we owe a special thanks to Steve Lastres.) In fact, the combined effect may have been decisive.”

Having matched our vision with a new opportunity, we now have the challenges ahead of using the opportunity to AALL’s best advantage. You can help us by joining! If you want to follow our listserv, contact Sarah Glassmeyer at sarah.glassmeyer@gmail.com. Even if you cannot join us, we welcome your suggestions and insights.

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Support A Petition To AALL’s Executive Board On The Consumer Advocacy Caucus

11/1/11 update:

Today we submitted the final version of our petition. We gratefully acknowledge support from 57 petition signatories and the PLL-SIS.

10/29/11 update:

We are now near our deadline to receive additional support for our petition. We ask that supporters contact Chair Michael Ginsborg (michaelginsborg@yahoo.com) by 8 p.m. EST on October 31st.

10/22/11 update:

In September, Laura Orr encouraged AALL members to support our petition here, and Marie Newman recently posted a reminder here. We encourage you to not only consider supporting the petition, but respond anonymously to our new survey. We expect to include your anonymous responses in the final version of the petition. Your comments will provide the Board further evidence about why AALL should recognize our Caucus.

9/22/11 update:

AALL President Darcy Kirk recently provided “background information” to the membership about our petition. We want to help the Executive Board make a fully informed decision about the petition, so yesterday we submitted a chronology of our attempted registrations. We also share Ms. Kirk’s desire to keep AALL member “fully informed.”   To receive our chronology, please contact Caucus Chair Michael Ginsborg (michaelginsborg@yahoo.com).

9/16/11 update:

We continue to circulate our petition for signatures and endorsements from AALL members and AALL affiliates. We have filed an “interim” version of our petition, with 37 AALL members as supporters. We encourage AALL Board members to contact us with questions, because we want to help them make a fully informed decision.

9/10/10 announcement of petition:

Our Caucus needs the support of AALL members as we petition AALL’s Executive Board to gain recognition. We are also seeking endorsements from AALL Sections, Caucuses, and Chapters. Signatories may contact Caucus Chair Michael Ginsborg at Michael Ginsborg. We will submit the petition on September 15th, allowing the Board enough time to place it on the agenda of its November meeting. Although we prefer to collect signatures and endorsements before September 15th, we will continue to collect them until November 2nd, the day before the Board meets. We will then resubmit the petition with the additional signatures and endorsements.

Request To Support A Petition For An AALL Consumer Advocacy Caucus

We are a group of over 50 AALL members who need your support in a crisis affecting all types of law libraries. Our libraries cannot indefinitely sustain the escalating costs of unfair and anticompetitive business practices by some sellers of legal information. AALL has unique promise to champion the interests of legal information consumers. We have matched its promise with an opportunity. In April, we registered to become an AALL Caucus on Consumer Advocacy. AALL members have achieved earlier successes at consumer advocacy. Based on their examples, we proposed several consumer advocacy initiatives as our goals. AALL’s leadership initially raised concerns about our goals. We were told that our Caucus would violate antitrust law and make policies on AALL’s behalf. To answer these objections, we changed our statement of purpose. Former AALL President Joyce Janto subsequently approved our revised statement for an Executive Board vote. AALL President Darcy Kirk recently rejected it and offered a substitute that compromises our effectiveness. We need your support as we petition the Board to reverse Darcy’s decision and approve our revised statement of purpose. We ask that you endorse the following petition to the Executive Board. We will instruct the Executive Board to keep signatory names strictly confidential.

A Petition Of Undersigned AALL Members To AALL’s Executive Board

As AALL members, we petition AALL’s Executive Board to approve this statement of purpose for the creation of the AALL Caucus on Consumer Advocacy:

“The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate governmental bodies for specific remedies to anticompetitive and unfair business practices by legal information sellers.”

We do not consent to any disclosure of our names as signatories. Disclosure could allow legal information sellers to retaliate against us by singling out our employers for less favorable business relations.

Reasons For The Petition

1. The Caucus has a strong factual basis for its proposed purpose.

2. Although AALL has three venues on “vendor relations,” none can effectively address unfair and anticompetitive business practices in the legal information industry. First, the Vendor Colloquium did not discuss consumer advocacy, and the membership had no opportunity for digital participation in any of its sessions. Caucus members asked a Vendor Colloquium task force to consider our proposal of a robust consumer advocacy equal to AALL’s promise. The task force did not respond, closing an opportunity for their participation. Second, CRIV does admirable work to help individual institutions resolve complaints against legal information sellers. But CRIV can not use information from these complaints to advocate for a change in AALL policy. Third, despite significant anti-consumer practices in the industry, AALL’s Vendor Liaison has reduced related membership concerns to a problem in public relations.  In March 2011, Vendor Liaison Margie Maes reported that unidentified “vendors” were “frustrated with the airing of public complaints,” but hoped that a “vendor relations program” would “stem the flow of that negative communication.”   (March 25-26, 2011 AALL Executive Board Meeting Board Book, Tab 17)

3. We need a new approach. Caucus members seek the opportunity to independently influence AALL policymaking in a matter of high importance to the membership. An AALL Caucus would provide AALL members a forum to fully exchange their views on consumer advocacy, and a transparent venue to reach consensus on a policy recommendation to the Executive Board. The Caucus would not decide policy for AALL or act on its behalf. Caucus members seek only to have their voices heard; to open a new outlet for member participation in AALL; and  to collaborate with AALL’s leadership in developing an effective consumer advocacy.

4. Over 50 AALL members have twice requested AALL’s recognition of the Caucus. Valuing AALL as their best ally, they have worked with its leadership to develop an acceptable statement of purpose. Former AALL President Joyce Janto provisionally approved their latest submission, but her successor, Darcy Kirk, has rejected it. Darcy suggests that the Caucus accept yet another statement of purpose:

“The purpose of the Caucus on Consumer Advocacy is to provide a forum for AALL members to exchange ideas and information regarding the legal information industry and to represent its members’ interest and concerns within AALL.”

5. Darcy objected to the “negative tone” of the Caucus’ latest purpose and faulted the Caucus for suggesting “actions regarding policy.” She says that her substitute purpose “does not prevent [the Caucus] from from making recommendations to AALL regarding petitions.” But it would prevent the Caucus from candidly declaring its real purpose – to recommend a consumer advocacy petition..

6. AALL’s leadership could apply similar objections to any activity our Caucus might otherwise pursue, especially given the recent history of changing positions by AALL Presidents.

7. Darcy’s rejection of the Caucus’ proposed purpose would harm AALL  in the following ways:

a.     It would violate the implied right of members to engage AALL in matters they find fundamentally related to its mission;
b.     It would violate AALL’s principle of transparency and openness;
c.     It would create a chilling effect on Association speech, as members will not be allowed to discuss consumer advocacy issues, must less pursue them, for fear that AALL will not approve of candid discussion;
d.     It would create  the appearance that AALL is afraid of candor in matters that affect sellers of legal information;
e.     It would deprive members the indispensable status and perceived “protection”  that AALL recognition confers on an activity that some legal information sellers can be expected to disapprove; and
f.     It would deter members from otherwise acting together to pursue their vision of a robust consumer advocacy.

8.  These harmful consequences prevent Caucus members from accepting Darcy’s substitute purpose. So unless the Board reverses Darcy’s decision, the Board will deny over 50 AALL members an opportunity they eagerly want to participate in their Association; will deprive other AALLL members the benefits of allowing the Caucus to organize; and will undermine member trust and interest in the Association.

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Bloomberg To Acquire BNA: Opportunity For Public Comment On The Proposed Acquisition

Bloomberg has just announced its intention to acquire BNA for a cash-tender offer of approximately $990 million. Bloomberg also provides answers to questions about the proposed acquisition. Under the Hart–Scott–Rodino Antitrust Improvements Act of 1976, Bloomberg must file pre-merger notification and report forms with the FTC and the the Department of Justice Period. During an initial waiting period, these agencies review the filings for possible antitrust violations and determine whether to investigate further. If neither agency decides to further investigate the transaction, the waiting period ends 30 days after the agencies received the acquirer’s pre-merger notification, unless the transaction involves a cash-tender offer. In that case, the waiting period ends in 15 days. (15 U.S.C. §18a(b)(1)). According to an FTC Guide, “any interested person, including either of the parties [to the transaction], is free to present information to either or both agencies at any time.”

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Informal Notes On Our July 25th Meeting In Philadelphia

We owe special thanks to the generous hosts of our July 25th  meeting, Linda-Jeane Schneider and Bonnie Shalala, of Drinker Biddle. Jamie Keller and Kelly Reynolds prepared the following informal notes. I have added observations or clarifications in brackets.  This meeting handout provides reasons for two forms of Caucus organization.  Marie S. Newman has also just posted her summary of the meeting at the Out of the Jungle blog. [MG]

Statement of Purpose and Initial Priorities

Michael Ginsborg provided the background for the development of the Consumer Advocacy Caucus.  The initial statement of purpose submitted for caucus formation was inspired by Raymond Taylor’s 1969 article in the ABA Journal entitled “Law Book Consumers Need Protection.” Taylor’s article brought awareness of the unfair business practices of legal information vendors (LIVs) including the violation of laws and FTC’s intentions.  The ABA, but not AALL, attorneys submitted a position statement on the practices of the LIVs [expressing support for proposed FTC Guidelines], but AALL did not provide input or state a position on the matter. The ABA’s position led to the adoption of FTC Guidelines for the Law Book Publishing Industry. The Guidelines improved disclosure to consumers, and so did books like Ken Svengalis’ Legal Information Buyer’s Guide & Reference Manual, which provides librarians and other legal consumers the information needed to compare products and services. [In the 1980s and 1990s, CRIV informed AALL members when specific legal publishers violated the FTC Guidelines and sharply increased supplementation costs. CRIV influenced the 1993 reversal by Matthew Bender of its escalating supplementation costs. CRIV's example also set a precedent for our undertaking.]

The initial statement of purpose sought to increase disclosure and forge coalitions in order to advocate for appropriate legal remedies.  Currently, when purchasing materials, we depend on Svengalis’ Guide and the vendors themselves for information regarding their services, especially electronic resources.  There needs to be more information comparing LIVs, looking at cost transparency, analyzing price escalation, and developing consumer-based comparison criteria.  In short, there is a need for more education, including a sequel to Raymond Taylor’s article in the ABA Journal.  The ABA Journal is preferable to a librarian publication because so many legal information consumers are lawyers who do not have librarians on staff.  We can also increase education through workshops at annual meetings, such as a program to review the quality of LIV editorial practices.  In addition, we should form collaborative communities between bar associations, attorneys, library associations, and consumer advocacy groups.  The caucus would also conduct fact-finding concerning the nature and extent of practices that undermine competition in order to craft legal remedies, remedies that would not violate the law.  The idea is to make enough noise that the LIVs cannot ignore. [Joe Stephens expressed the idea in a September 1996 article for Spectrum, "The End of West(ern) Civilization."]

This statement of purpose was rejected by AALL on two grounds.  First, the administrative objection was that the caucus could not form a committee to comment or commit on any policy while presenting themselves as part of AALL.  Only the AALL leadership has the authority to speak or lobby on behalf of AALL.  The second objection was based on legal concerns over the perceived violations of antitrust laws.

Discussion of Options for Organizing

The two options for the Caucus are (1) try to obtain AALL status or (2) form an independent organization.   Submitting a revised statement of purpose was considered more effective than creating an independent organization.  Additionally, AALL’s reputation, size, and influence would give the Caucus credibility and could help back the policy we wish to create.  We reviewed the handout Michael Ginsborg created and distributed.  There was also discussion on how the Consumer Advocacy Caucus would work with CRIV and the Vender Liaison.  The caucus could help AALL develop consumer advocacy policy, as CRIV is prohibited from policy-making.  Some members also mentioned that by staying within AALL, the Caucus would attract more members who might not wish to join a non-AALL organization. Mark Estes thought that fear of vendor reprisal was overstated. Mark also said that AALL approval of our Caucus application would be a “slam dunk.”

It was unanimously decided to submit another statement of purpose to AALL for Caucus formation, with formation of an independent organization only as a last resort.  Michael provided the text of the new statement of purpose. The Caucus will submit it to the AALL Executive Board in August.  [It was submitted on August 3rd.] Michael’s understanding from (then) AALL President Joyce Janto was that there were no administrative or legal objections to the new draft.

Price Index Issues

Ken Svengalis discussed the issues with the AALL Price Index for Legal Publications (Price Index). The Price Index 2d covers titles with the base year of 1998 [and ends with coverage for 2004.] Thomson West data was provided by members from 2000 to 2004. Thomson West [did not provide the Price Index Committee requested price data between 2005 and 2008]. The company provided the Price Index Committee price information in 2009, but limited the information to new set costs, not discounted supplementation costs that the Committee needed. [The Committee reports that “other legal publishers that other publishers have also supplied new set pricing between the years 2005 and 2008.”]

Ken recommends data collection by members so that all products are compared across LIVs for historical (year) sales for discounted supplementation costs. He also called for volunteers to assist with his price gathering for his book.

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