Dec. 11th, 2015

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This post was originally going to be about the Dear Author settlement, but then Ellora’s Cave’s former Managing Editor, Nina S. Gooden, spoke out. So I’ll cover that first.

Second, It appears that the gears are finally starting to show some traction and we’re starting to see visible signs of the Ellora’s Cave v. Dear Author settlement.

I’m going to give a summary of those recent developments, then I’m going to discuss a few rumors going around and my take on those rumors. This is likely to be the first of several such posts.

And, at the end, a follow-on to my previous Ellora’s Cavemen anthology post.

Ellora’s Cave Former Managing Editor Speaks Out

Nina S. Gooden posted this eye-opening (and mind-boggling) post today.

In the summer of 2013, I interviewed to work for Ellora’s Cave. I remember the initial conversation like it was yesterday. In order to find a quiet space, I sat in my sister’s van in North Carolina’s muggy 90-degree weather. That’s how badly I wanted to work for this company. I was hired for what I thought would be my forty-year plan. I left my long-term boyfriend in Las Vegas, as well as another Managing Editor position, and moved out to Akron, Ohio to be the Managing Editor for Ellora’s Cave.

She talks about the heartbreaking treatment of authors:

Even now—with several years’ worth of distance between me and the conference room that made me develop what my friends jokingly called a “mild drinking problem” for the duration of my stay in Ohio—I get chills thinking about it. The blatant disregard for authors as a whole, the almost maniacal plans to keep authors locked into contracts that were unfair, just so they couldn’t publish elsewhere…the whole situation broke my heart.

…and…

I don’t know why I thought that a group of people, who had laughed at a story about an author not being able to pay her medical bills because of missing royalties, would somehow care that I needed this job to maintain any kind of reasonable living situation.

Then, after she was laid off with the other professional staff in January:

Ellora’s Cave hasn’t answered a single one of my emails in the last year—except to tell me to email other addresses. My pleas for them to respond to background checks phone calls or to provide the promised letters of recommendation have gone unanswered. When I tried to contact them, asking for the paperwork for my curiously empty IRA account (an account EC should have been contributing to), all I heard was the crushing sound of disinterest. I hate that I am now on the other side of what the frustrated, frantic authors I helped hurt must have felt.

I’ve been in similar work situations (in another industry) and can deeply resonate with this post.

The entire post is worth a read, and it’s also a great cautionary tale for why you, as a writer, should negotiate the hell out of your contracts.

Dear Author Revelations about Court Costs

The Dear Author Defense fund page was updated yesterday, complete with the rather staggering amount of fees:

To date, I have paid the following in fees:

Randazza Law Firm: 115,712.29
Lefton Group: 2,855.00
Expert witness fee: 5,075.00
Brennan, Manna & Diamond: 8,936.06

The total was: $132,578.35

Note that the legal fund raised $55,086 (before fundraising costs from gofundme and PayPal), hence the vast majority was not covered by the fundraiser. Jane Litte adds:

I am so grateful for everything you all did to support this fund, and given everyone’s generosity, I just did not feel comfortable doing another round of fundraising. I should also note that Marc Randazza discounted his normal rate, so while fees were very substantial, they could have been even more.

Jane Litte’s Error Corrections

As covered in this Dear Author post.

My commentary follows:

I made some errors and want to correct them:

  1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.
  2. She has not gone on any recent Rodeo Drive shopping trips.
  3. The principals of Ellora’s Cave did not receive “no interest” loans.

  4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.

  5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.

My commentary:

First, note that the correction is quite limited in scope given the wide-ranging narrative of the Curious post.

  1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.

    I’d previously mentioned that I’d found Tina Engler saying it was a lease. That said, it was a mistake, not a lie (nor defamatory!), and Jane’s context in the Curious post is still relevant: it’s an expensive place to rent, too. This correction seems to be all about Tina Engler’s ego.

  2. She has not gone on any recent Rodeo Drive shopping trips.

    @ataglanceRMC pointed out that Tina Engler said she was looking at houses in the area at the time that she checked in from Rodeo Drive. That said, Jane Litte’s statement wasn’t defamatory, nor was Tina Engler even a party. This correction seems to be all about Tina Engler’s ego.

  3. The principals of Ellora’s Cave did not receive “no interest” loans.

    This was actually not one of Jane’s representations, but something from the Brashear case that Jane cited. Maybe Ellora’s Cave should have fought harder on that docket.

  4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.

    Note that this assertion is very carefully worded, quite scathing, and says absolutely nothing about what Jane thinks the truth is, nor what the truth actually is, nor what you should believe.

  5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.

    …but that says absolutely nothing about whether or not Ellora’s Cave is a going concern.

Instead, what we have are the following:

  1. A still-on-the-table legal action by author Ann Jacobs—perhaps including other similarly situated authors—with an unknown amount of downside risk. Ann claims that she alone is owed $193,000.
  2. Some authors have reported that they’ve been paid up through February 2015. Some have stated they’ve received payments covering periods as late as June 2015. So far as I’m aware, apart from the open questions about the royalty rate changes that Ann’s case is predicated on, no one is currently more behind than Feb 2015 or more caught up than June 2015. Under typical publishing-industry contracts, this situation—a publisher leaving authors’ royalties in arrears for many months—would constitute breach of contract. (I am not a lawyer and won’t be giving legal advice. Ellora’s Cave authors should read their contracts carefully and consult an attorney if they have questions or desire remedies.)

Department of Rumor Control

There are a lot of rumors floating around, so I’ll cover a few this time and more later.

Rumor: Ellora’s Cave Won the Lawsuit

(Rumor source: now-deleted facebook post by RT Booklovers Convention; here’s their apology.)

Fact: This rumor is false. The lawsuit was settled, which can be more accurately translated as: both sides lost.

Fact: Also, technically, the case is still not over. The judge noted a settlement had been reached on Oct 22, but there has been no stipulated motion to dismiss, nor has the case been dismissed by the judge. There is still the matter of Ann Jacobs’s motion to intervene, too.

Rumor: Dear Author’s Statement Was “Obviously Court Ordered”

(Rumor source: Emma Paul.)

Fact: When the court issues an order, there’s an item on the docket. There is no such item on the docket. Also, the copy of the order is downloadable by anyone unless it is noted as sealed. None of the judge’s orders are noted as sealed.

As of this writing, there have been no docket items since the judge’s note of the proposed settlement on October 22. When the settlement is final, the case is finally dismissed, and that has not happened yet.

Additionally, EC supporters can probably believe Ellora’s Cave’s lawyer on this (document here):

Finally and most egregiously, Mr. Randazza filed his brief within 10 minutes after local counsel for Defendant and undersigned had spent two days and many hours working toward terms of a tentative settlement agreement.

This was not ordered by the judge. Plaintiffs and Defense approached the judge the following day with a proposed settlement.

Anyone with a PACER account can verify that my copy of the docket matches the court’s record.

If you wish to do so, here are the steps:

  1. Create a PACER account on www.pacer.gov.
  2. Log into Ohio Northern District’s case filing system at ecf.ohnd.uscourts.gov.
  3. When the next page loads, click Query along the top.
  4. Enter the case number on the query page: 5:14-cv-2331 then click Run Query. (It may want you to verify the case number first.)
  5. You’ll see the home screen for the case. As you can see, I generally go to the docket report.
    ec-v-da-suit-home-screen
  6. Click Docket Report
  7. The next screen will allow you to limit the dates of the entries; if you don’t, it’ll run you thirty cents (last I checked; it may be forty now). Click Run Report.
  8. You will see this report. I’ve uploaded a PDF copy so that you can see that my Dropbox copy of the docket really is what’s up on the court’s site. Feel free to fact check me.

Here are all the orders by Judge Adams, larger (bolded) and smaller. I’ve linked to my dropbox copies, but you’re free to spend money downloading them yourself.

  1. Docket item 15: Marginal Entry Order granting Plaintiffs’ 13 Motion to continue.
  2. Docket item 18: Marginal Entry Order denying the stipulated 16 Motion for Extension of Time to Answer.
  3. Docket item 21: Case Management Conference Scheduling Order.
  4. Docket item 22: Memorandum Opinion and Order denying Plaintiff’s 12 Motion to remand to State Court.
  5. Docket item 24: Marginal Entry Order granting Defendant [Jane Litte’s] Motion to attend the case management conference by telephone. (I didn’t bother downloading this one.)
  6. Docket item 26: Order rescheduling the case management conference to 1 /26/2015. (I didn’t bother downloading this one.)
  7. Docket item 30: Order. The Court held a case management conference on 1 /26/15. As Plaintiffs confirmed they do not intend to pursue the motion for temporary restraining order that was pending, Plaintiff’s 5 motion for temporary restraining order is hereby denied.
  8. Docket item 37: Order and decision denying the non-party’s motion to quash (Doc. # 31 ). This was @pubnt’s motion.
  9. Docket item 41: Trial Order. Jury Trial set for 3/21/2016 at 09:00 AM in Courtroom 575 before Judge John R. Adams.
  10. Docket item 57: Order. Defendants have filed various motions, including a Motion for Clarification Regarding Preliminary Discovery, Motion for Leave to Supplement the Record in Support of Defendants’ Motion for Summary Judgment, and Motion for Further Discovery Pursuant to Fed.R.Civ.P. 56(d). The Court will conduct a hearing before Judge John R. Adams on these motions on 10/8/15 at 11:00 AM in Courtroom 575.
  11. Docket item 67: Order granting the Parties’ Joint Motion to continue the October 8, 2015 hearing on various motions. The Hearing is RESET for 10/22/2015 at 11:00 AM in Courtroom 575 before Judge John R. Adams.
  12. Docket item 68: Marginal Entry Order granting Plaintiffs’ Motion to redact Exhibit #13 of the opposition. (Doc. # 64 )(Related Doc # 65 ).

And that’s it. There are really only two substantive rulings in this case: denying Ellora’s Cave’s motion to remand the case back to Ohio state court, and the denial of @pubnt’s motion to quash the subpoena to Twitter to discover @pubnt’s identity.

To those spreading this rumor: put a couple of bucks where your mouth is and support accurate information.

Rumor: If I Buy an Ellora’s Cave Book Through Amazon, the Author Will Get Paid [by Amazon]

This is a misunderstanding of how royalties work. In the case where an author is unagented, the process is:

  1. Amazon pays the publisher.
  2. The publisher pays the author.

For an agented author:

  1. Amazon pays the publisher.
  2. The publisher pays the agent.
  3. The agent pays the author.

If #2/#3 isn’t happening, it’s not going to happen any more reliably because the customer bought the book through Amazon. However, when there’s a publisher that’s having payment issues, what it does add is a third-party that can be audited and/or subpoenaed.

Rumor: Ellora’s Cave Had a Rogue Employee Who Lied to the RWA

(Source: facebook commenter)

The source of the RWA’s censure against Ellora’s Cave was Patty Marks. (Court docket item 54-1.)

Rumor: Ellora’s Cave Proved Three Authors Were Lying in Court

(Source: Tina Engler)

This is false.

Fact: Nothing Ellora’s Cave submitted about any author was proven to be true in court. There were no rulings about the factual nature of any evidence about any author submitted in the case.

Except, of course, for @pubnt. Somehow, I don’t think that’s what Tina meant, though.

It’s not proven until the judge or jury agrees; please see above for all the judge’s orders. No jury was ever selected as the case didn’t get to the voir dire stage.

Ellora’s Cavemen Anthology Contract

I’ve been given a copy of what claims to be a 2008 Ellora’s Cave Cavemen Anthology Contract. (Note: it may be until sometime Saturday 12/12 before this document syncs)

I don’t know that this contract is specifically the same as any that were signed. I just noticed the following things about this particular document.

Screen Shot 2015-12-10 at 5.17.01 PM

  1. It licenses the work as one of six works included in the anthology. I see no provisions for other numbers (e.g., 72). Therefore, I don’t see how Ellora’s Cave is authorized to publish the 72-work omnibus volumes of Ellora’s Cavemen anthologies without an additional or substantially different contract.
  2. I see no provision for reversions.

Obviously, if you have questions about your contract or the remedies that may be available to you, then your lawyer is the appropriate person to answer your questions.

Originally published at deirdre.net. You can comment here or there.

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