If Frere-Jones loses the lawsuit, he should just release his own versions of Gotham, Whitney, etc. After all, in the United States, typefaces are not subject to copyright [1]. There is legal precedent that provides protection for font files, (i.e. the "software" that generates the fonts) but the designs themselves cannot be copyrighted. Just consider the many variants of Helvetica or Futura [2], each published by a different foundry.

If Frere-Jones' allegations are true, I've lost all respect for what is now Hoefler & Co. I remember eagerly awaiting the release of H&FJ webfont licensing for years. Quite a shame what has happened between the two, H&FJ was truly a great foundry.

[1] http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=a71104dd9f0...

[2] http://www.quora.com/Typefaces/Which-foundrys-version-of-Fut...