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Ellora’s Cave author Ann Jacobs has filed an Intervening Counterclaim in the Ellora’s Cave v. Dear Author case. (Here, as with other similar situations, I’ll refer to her by her pseudonym.) From page 1 of the counterclaim:

The future value of the specific performance and declaratory judgment is unknown, but the damages incurred from Ellora’s Cave’s breaches are at least $193,000.

For. One. Author. (Ellora’s Cave had, last I checked, over 900.)

From pp. 4-5:

By way of example, §10 of the Mutual Favor Publishing Agreement provides that “In regard to all of Publisher’s royalty provisions as specified below, Publisher shall pay royalties based on cover price.”

Under § 10.1 of the Mutual Favor Publishing Agreement, the applicable royalty rate for digital formats of A Mutual Favor is 37.5% of cover price.

Under § 10.2 of the Mutual Favor Publishing Agreement, the royalty rate for print books of A Mutual Favor is 7.5% of cover price.

Notwithstanding the language in the contracts, Ellora’s Cave has stated that it believes it is entitled to calculate and pay (and has in fact calculated and paid) royalties to Jacobs—and, upon information and belief, other similarly situated authors—based not on cover price, but on the actual sales price of the works. […]

Ellora’s Cave has made similar underpayments for most or all of Jacobs’s works, and upon information and belief has made similar underpayments for many other authors.

After complaints about the improper royalty payments, Ellora’s Cave attempted to modify its publishing contracts with its authors, including Jacobs, by unilaterally informing the authors that Ellora’s Cave would begin paying an increased royalty rate (45% or 40%) but pay the royalty rate based on the sales price, which was often substantially lower than the cover price. The net result was that even with a supposedly higher royalty rate, the royalty payments were below those provided for in the contracts.

Ellora’s Cave’s attempts to change the royalty payment structure by unilateral notice is not permitted under any of the Publishing Agreements, all of which contain provisions requiring any modifications to be made in a writing signed by both Jacobs and Ellora’s Cave. The attempts at modification are, however, indicative of Ellora’s Cave’s knowledge that its prior royalty payments were not consistent with the Publishing Agreements.

Taking the claims as true, I think essentially this would prove the Dear Author claims about authors owed “several thousands, perhaps approaching six figures”. As I joked once, some people could say Dear Author’s statements were untrue with a straight face if seven figures were owed.

There’s also a Motion to Intervene as Counterclaim Defendant filed by Ms. Jacobs.

In the main action the plaintiffs, including Ellora’s Cave, have alleged that the defendants defamed the plaintiffs by stating that the plaintiffs have failed to timely pay royalties to Ellora’s Cave authors. See Complaint at ¶ 12, dkt. 1-1, PAGEID # 8. The intervenor’s claims therefore have not only common questions of fact and law with the main action, but actually substantially identical questions of fact and law with the main action. To put it more simply, if the intervenor prevails on her intervening counterclaims, the claims in the complaint (or at least a portion of them) fail as a matter of law, because the allegedly defamatory statements will have been shown to be true.

So, there you go.

Updated to Add: Link to Courtney Milan’s Piece

Courtney Milan’s blog post is here. She’s actually been to law school and been a clerk for some Very Important Judges and was a law professor. So.

Filing this claim as a motion to intervene was probably not the way to maximize the chances of success. If I had to guess, and this is purely a guess, I would say that this is an exercise in saber rattling. This is the saber I hear being rattled: Revert my titles, now, or you’ll spend well into the six figure mark defending your existence.

My commentary: I didn’t want to say this until I saw Courtney’s take on it, but I agree with her that this is some badass sabre rattling. I also find it really interesting that nothing was filed far earlier, say in December or January at the very latest.

Why? I think she’s seeing the writing on the wall, and she believes this is the best strategy to get paid, in full or in part, and get her rights reverted. Because if they pay her and revert her work, she doesn’t have a cause of action any more.

It’s a way of jumping the queue in front of other authors, and I think we may see more queue jumping coming up.

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

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Best Practices: CAN-SPAM Compliance header graphic

I just went through a bunch of (non-writer) email lists I was on, and realized that a whole bunch of them weren’t even pretending to comply with US anti-spam laws, even for people/companies sending commercial email in the United States.

So here are the two biggies if you’re sending commercial emails of any sort:

  1. You need to offer the recipient a way to opt out. Then honor that request!
  2. You need to provide a real street address, though this can be for a mailbox. Unfortunately, this requirement keeps a lot of female writers from creating email lists. (Sorry, I don’t have a good solution to that.) I’ll just add that the mailbox doesn’t have to be in your town, but it’s likely that it’ll have to be somewhere convenient to you.

    Note that even if you’re located outside the US, many mailing list providers require that you still comply with CAN-SPAM, though they may not require you to disclose your full physical address. (I’m not certain if other countries do.)

The catch is: what’s a commercial email? The FTC guide is quite good.

My Own CAN-SPAM Saga

  1. February 13th, I bought a WordPress plugin that I liked. This was written by one company (whom I’ll call the developer) and launched in partnership with another company (and I’ve kept the relationship with the launch partner, whom I otherwise like).

    When I got some spare time, I set it up, then was having issues with my site. I went to look at the error logs and discovered this plugin was just SPEWING stuff to the logs because it was trying to write to the plugin directory. (Which is a bad practice.)

    The specific file (an error logger) wasn’t written by either company, by the way, but five years ago by an Iranian developer who was apparently in high school at the time. There’s nothing hideously wrong with it (given a quick reading) apart from where it’s trying to write to, but it’s clearly PHP code that was written for command-line stuff and not PHP code that was intended for a WordPress plugin. Hence, the log file’s location was not as important.

  2. March 1, I filed a bug with the launch partner (per instructions given), giving them the line of code and the log file. (It’s not my job, you know? I’m just a nicer person than I should be sometimes.) The ticket’s updated saying they’ll get with the developer.

  3. We go on a cruise, so I don’t check back for a couple weeks. March 19th, I file for a refund request. They offer me an alternate purchase, but I say no, and I receive my refund on March 22nd.

  4. I’m still on the developer’s email list, and I finally realize there is no unsubscribe link. Every time I get an email from him, I’m reminded of the product I really wanted to love but felt let down by. I try to unsubscribe. No luck.

    I file another ticket (my third!) on April 16th to say I can’t get off the developer’s email list and that their email doesn’t comply with CAN-SPAM. What do I get from support?

    Honestly speaking, we know that [developer] is not doing any kind of illegal stuffs and that’s one of the main reason we have partnered with him. We are aware of Can-Spam and we follow all the rules strictly.

    Yay, gaslighting. My response, excerpted:

    With respect, I wish that [launch partner] would listen when I raise an issue. (And I know all about Apple, I was a software engineer there for more than 5 years.)
    There are two specific requirements that [developer] is not complying with: 1) method of unsubscribing, 2) street address. He has NO links to unsubscribe. He does not respond when I’ve emailed him. That’s not okay.

    …and then I give a simple workaround for the problem I reported in the first ticket that would take less than an hour to fix.

  5. The next commercial email I received from developer (!) had an unsubscribe link. I clicked the link. CAN-SPAM allows the commercial enterprise up to ten days. I took screen shots of three times, responding to three different mailings, over a period of a couple of weeks. Sadly, I accidentally deleted them while I was moving files around sometime while my mom’s been in the hospital.

    So here’s where it hits a problem: many people who have commercial websites want to do some form of content locking, where part of the site’s content is only available to people who are on their email list. But email lists are typically through third-party providers. So this developer had the opt-out go through his site rather than directly to the third-party email provider. I understand the (likely) reasoning, but if that’s not working, then you need to push through the unsubscribes manually until it is working. (And test your code better!)

  6. With my mom going to the hospital, I kind of lost track of how long it had been, but every 2-3 days, I’d get another email from the developer. On May 14th, I was finally certain it had been 10 days since my last request, so I wrote to the abuse department of his third-party email provider. They suspended him pending an investigation, and blocked his ability to send to me.

  7. Yesterday, I received another email from You Know Who, which surprised me given the suspension. Viewing the source showed why: developer was using a different third-party email provider…who has since suspended him.

And I wonder how long I’m going to have to play whack-a-mole just to not continually be reminded of the mistake of trusting the wrong company. Yes, I could filter out his emails, but that’s not the point.

Thing is, I still think the original idea was pretty cool, and I’m wistful that it’s turned into this rather than being the cool product I wanted it to be.

Disclaimer: I am not a lawyer, and this is not legal advice. If it were legal advice, it would be accompanied by a bill.

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

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On February 7th, @pubnt faxed a letter to the judge in the Ellora’s Cave vs. Dear Author case. Courtney Milan has a long blog post about it, so I thought I’d take a different tack on the issue.

Ellora’s Cave Thanked STGRB

On October 4, 2014, Tina Engler, writing as Jaid Black, posted a blog entry titled _To the Silenced Victims_, about how Ellora’s Cave’s authors and supporters were purportedly afraid to speak up.

On October 8, Ellora’s Cave tweeted a thank you to STGRB:
elloras-cave-thanking-stgrb-dick-move-indeed

(Thank you to azteclady, and several others, for screencaps.)

Before those two tweets, Ellora’s Cave hadn’t tweeted at all since August 11—nearly two months—not even promotional tweets for its new titles. I called out Jaid Black/Tina Engler on this:

https://twitter.com/deirdresm/status/520081118175846400

For those who don’t know, the short version of StGRB is that it is not an anti-bullying group, but is a group of authors who bullied reviewers because of reviews the authors didn’t like. In other words, it’s ironically named.

Giving a one-star review to a book you genuinely didn’t like isn’t bullying.

I stated that the biggest problem with Ellora’s Cave’s tweets wasn’t so much the STGRB mention as failing to promote EC’s authors and books. I mean, it’s a Twitter account for a publisher that had new books published during those two months of radio silence. EC fixed that promotional shortcoming, and has remained focused on prompt tweeting of new releases, pretty much (I noticed a short blip, but didn’t record when, and I’m not interested in looking it up).

Oh, and also, Ellora’s Cave deleted one of those two tweets, the one that invoked STGRB. Why bother with this digression? Please hold….

@pubnt Invokes STGRB

What’s interesting about @pubnt’s tweets from the October 4th creation of the account until February 1 is that there are zero tweets for: “STGRB”, “goodreads”, “bully”, or “bullies”.

And yet, in her letter to the court, @pubnt relies heavily on STGRB rhetoric. Also, STGRB are in fact the only links in @pubnt’s letter.

What amuses me the most of all about @pubnt’s letter is the assertion that @pubnt is presenting evidence. STGRB isn’t evidence, it’s hearsay. Of course, if that’s how strongly TE feels about STGRB, she could have seen to it that the principal STGRBers were on EC’s witness list. But Ellora’s Cave didn’t choose to add said writers to their initial disclosures.

As a general rule, anything said by anyone outside the list of people who make formal statements admitted into evidence or who are witnesses in the case—that’s hearsay as far as the case is concerned.

Remember the pocket universe episode of Star Trek: The Next Generation? Legal cases are kind of like that. Apart from the witnesses and people giving testimony (and the law including case law, of course), the world outside is invisible. Or, more accurately, hearsay, with some notable exceptions.

Invoking some random blog, even this one, is neither evidence nor proof.

Things @pubnt Says About #notchilled Regulars and My Statement About Who I Am

I’d like to refute the generalizations @pubnt makes about #notchilled regulars, at least as they pertain to me.

  1. I have never met Jane Litte. I have followed the Dear Author twitter accounts because Jane Litte and others recommend books I’d like to read. I often disagree with JL’s ratings. As a specific example, one of my favorite books last year was Laurelin Paige’s Fixed Trilogy. JL gave the first book a C- rating. I agree that the first is the weakest of the three, but the plot twists in volumes two and three made it one of my favorites, and book one was strong enough for me to continue reading. Apparently not for JL, and that is her choice.
  2. I make a horrible minion. I will only do what I think is right, and, even then, I don’t have time (or energy) to do all of that. In Gretchen Rubin’s four tendencies, I’m a rebel with questioner tendencies, so I’m perfectly fine with not fitting in and not going along with a crowd.

  3. I have made far more money from being traditionally published than being self published. I have books published by Que, Sams, Baen, and BenBella, plus others under pseudonyms. (If you follow the purchase/sale trail of the first three, you’ll see that means I’ve been Big5 published by two different routes: Sams and Que became part of Simon & Schuster, and some of the work I did for Macmillan Computer Publishing meant I’ve been published by Holtzbrinck.) I’ve never been published in the romance genre, and I’ve only been rejected once in that genre—more than twenty years ago. Frankly, it was a horrible proposal for a category book, but I was still too green to know that. I am working on a romance novel, and I have an agent who’s already been promised first look.

  4. That said, of course I’ve been rejected, too. It’s a part of being an author. Though sometimes rejections sting (and I do whine about those privately), I also get over them. As a friend of mine says, the right attitude to take to these if they’re getting to you: “That’s one more time an editor tried to stop me and failed.” (Neither of us believe this viewpoint, btw, it’s just that it’s one that happens to work for both of us to help get us back to the salt mines of writing new stuff.) I don’t dislike anyone who’s rejected my work—except perhaps MZB, but that’s for reasons unrelated to her authorial or editorial work, at least as it relates to me.

  5. I am not “jealous” of any successful writers, nor am I envious of them. I also understand the difference between these two words.

  6. I don’t accept advertising on deirdre.net, and never have. That said, I make a small amount of money every now and then from Amazon’s Associate program. How small? I haven’t received anything since 2011, and they’ve owed me $16.28 since 2005. Which I didn’t know until I logged in for this screencap.

    amazon-associates

    Essentially, I removed all the Amazon links I had after LGBT fail and have never really managed to build up the associate income stream I used to have, small though it was.

    That said, I have been considering what kinds of banner ads I might have, but generally those would not be paid ads. Like: I’d make a banner ad for my own new book, which makes sense, right? But how about if a close friend releases one that I liked? How about if my writing group did one? Should I promote Clarion (a workshop I did) via ad? If so, what are my guidelines about where I’d put those vs. where/why I wouldn’t? I don’t have those answers yet. Until I do: only inline contextual links.

  7. I have a few other kinds of promotional links here and there, but none are specifically targeting indie authors unless it happens to be a book I’ve enjoyed.

  8. One of the reasons I don’t generally review books is that I would feel compelled to be honest about books I didn’t like, and I feel that’s a problem as an author. Sometimes my reasons for disliking books have to do with various artistic goals I’ve got as a writer. For example, I stopped reading Neal Stephenson because his endings didn’t satisfy me. As a plot structure person, that’s a killer for a book for me. Clearly, many readers don’t share this perspective, and I’m glad he writes books they can enjoy.

    The guideline I’ve decided to follow is that I’ll promote books I genuinely love. Period.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here. Many EC authors have books out from other publishers. The purpose of the support thread is to help give those authors willing to speak out some visibility.

Note:

An earlier version of this post was supposed to be published over the weekend. Apparently several posts I thought I’d scheduled didn’t post. Oops.

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

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First, Courtney Milan has an update and gave a better non-technical distinction of Motion to Dismiss vs. Motion for Summary Judgment.

(It is true, I am trying to keep up with even the dry court minutiae.)

Defense Witness List

In that post, Courtney publishes Dear Author’s/Jane Litte’s witness list:

@PubNT Twitter account

The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand. The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.

Tina Engler

Tina Engler is the founder and head of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Patty Marks

Patty Marks is the CEO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Susan Edwards

Susan Edwards, at all relevant times, was the COO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Raylene Gorlinksy

Raylene Gorlinksy is the Publisher of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Whitney Mahlik

At all times relevant hereto, Whitney Mahlik was the Managing Editor of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave

Courtney Thomas

At all times relevant hereto, Courtney Thomas was the Chief Financial Officer of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

So, I’m guessing we’ll get to find out who the mouthy mockernut is after all. Popcorn, anyone?

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

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Today, the judge officially denied Plaintiff’s request for a Temporary Restraining Order, but not perhaps for the reason we’d hope:

The Court held a case management conference on January 26, 2015. During the proceeding, Plaintiffs confirmed that they do not intend to pursue the motion for temporary restraining order currently pending before this Court. As such, the motion for temporary restraining order filed on October 20, 2014 is hereby DENIED.

This had been hinted at by Plaintiff’s counsel in a footnote to EC/JJ’s reply to Defendants’ Opposition to Remand Motion on Nov 1. Bottom of p. 3:

Plaintiffs indicated that because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.

If you ever need a great example of passive voice use and abuse? “Had become attenuated” is a beautiful one.

Joining of Parties Deadline Set

In the Case Management Doc:

The deadline for amending pleadings and adding parties: February 25, 2015.

So, we’ll just have to wait and see what’s going to happen there.

Random Legal Funny

There’s a footnote in one of Randazza’s filings that always makes me smile given that this case is about erotic romance. Bottom of p. 9:

Indeed, the seminal case in American defamation law was based on a publication that contained many factual inaccuracies, but the overall gist of the publication was not defamatory. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964).

Seminal derives, of course, from semen/seed.

I don’t know if that particular wordplay was intentional, but it does amuse me.

Ellora’s Cave Author Exodus Support Thread

The Ellora’s Cave Author Exodus Support Thread is located here.

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

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I’m not a lawyer (and this is not legal advice), but I’ll take a stab at the question.

Motions for Dismissal and Summary Judgment have one obvious thing in common: disposing of all or part of a case, but they are actually different.

From Wikipedia:

A “motion to dismiss” asks the court to decide that a claim, even if true as stated, is not one for which the law offers a legal remedy.

vs.

A “motion for summary judgment” asks the court to decide that the available evidence, even if taken in the light most favorable to the non-moving party, supports a ruling in favor of the moving party.

Potential Examples

A motion to dismiss first assumes the facts claimed in the claim are true, but irrelevant. A federal judge in Ohio with two companies in Ohio Plaintiffs vs. an Iowa individual and corporation could decide that there is no standing to sue over claims made about hypothetical shopping habits of a non-joined party that lived and shopped in California.

A motion for summary judgment assumes the facts are interpreted as favorable as possible to the opposing party, but that even that means the mover is entitled to judgment as a matter of law. Let’s say that California party is joined and in a relevant jurisdiction, and the claim is about whether or not said party bought a house, and whether what defendant said about the alleged purchase constituted defamation. The judge could rule that saying someone bought a house when they leased it isn’t inherently defamatory, and the facts of the case, taken together with the law, don’t support a claim of defamation. Hence, summary judgment.

Courtney Milan’s Explanation

[Courtney Milan has a clearer non-technical explanation in this post.

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

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Yesterday, I posted a link on Twitter and Facebook to a recent John Scalzi blog post:

But some people misunderstood what I actually meant partly because a) one can’t show a lot of context in a tweet, and b) lots of people who read my tweets or FB aren’t following the Ellora’s Cave case, and I meant my tweet partly as commentary on the existence of that case.

I went through a period in the nineties where I was being harassed (and defamed) by Scientology, and I had to consider what I wanted to do about it. Some of what was being posted was true but unflattering (and hence not defamation). Some of it was that was partly true, but not substantially true. And some of it was unflattering but not defamatory (e.g., bullying me about my weight). It was all done with the intent to harass and make me lose status, but, weirdly, I gained status with some people, too.

My own experience made me think a lot about defamation. Scalzi’s viewpoint, as expressed in his blog post, meshes pretty well with my own.

When You File a Lawsuit for Defamation, You’re Saying

  1. The other party has more power and more respect than you do, and they had that both before and after the alleged defamation occurred. (Though not necessarily in cases of defamation per se.)

    Think about it. If they didn’t have more respect, then how could what they say actually damage you?

    As Scalzi says in his own post:

    However, I would also need to show that Beale’s actions have caused me harm, economically and/or emotionally. Aside from annoyance, which does not rise to actionable levels, I’m not seeing the harm to me personally. Essentially, Beale escapes punishment here because he’s failed to be important enough to be harmful.

    The act of being involved in a lawsuit will also change your reputation, and not always for the better. Some people will respect you more, some will respect you less, and some will lose all respect for you—just because you filed the lawsuit.

  2. You believe you know what the alleged defamer’s motivations were.

    Granted, there’s a difference of degree between private person, limited purpose public figure, and public figure here. But how much do we really know about other people’s motivations?

    Even proving negligence (for a private person’s statements) is tricky. I remember having to go over the elements of a negligence claim when I took paralegal classes. The elements are:

    1. Duty of care: one has to show that they had a duty of care.
    2. Breach of duty: one has to so that that duty was breached.
    3. Factual causation: one has to show that that breach of duty actually caused the harm done.
    4. How proximate was the causation to the harm?
    5. There was actual harm done.

    It’s not an easy task, and that’s the easiest of them. You might be surprised how many negligence cases fail to show the required elements of negligence. Three and four are particularly tricky as I recall from the case law I’ve read.

  3. You’re willing to remain involved with your alleged defamer for years.

    Cases can go on for 2, 3, 5 years. Not all cases will settle quickly—or ever.

    What does it say about you that you think remaining in relatively constant contact over the course of years is what you feel is your best option?

  4. Since you have to file over what the alleged defamatory statements are, you will be dragging your own name through the mud in the course of the lawsuit.

    Further, it’ll all be a part of a permanent, public record. Rulings may be published in federal or state law books.

    A lawsuit creates a tangible, fixed record of what may have otherwise been lost to time.

  5. You believe a judge can rescue you.

    I mean no disrespect for judges—or lawyers—here. Judges do have a lot of power within their purview, but one thing a judge can’t do is rewind time to prevent the defamation from happening in the first place. You’ll never get that state back.

    It’s also relatively rare for plaintiffs to get what they expect to or hope to.

The David Beckham Case (So Far)

Let’s look at an example defamation case: David Beckham v. Bauer Publishing (California’s Central District federal case # 2:10-cv-07980-R-SS). It was filed in October, 2010, and is still ongoing (the most recent docket item is less than a week old). It’s had three appeals to the 9th circuit.

The lawsuit stems from In Touch magazine publishing a story saying that Beckham had cheated on his wife with a prostitute.

There was a settlement last year, but there had been an outstanding issue that the appeal couldn’t be heard on until there was a final order. That is still ongoing.

This article from 2011 sure makes it sound like it would be a slam dunk case:

The Los Angeles Galaxy star argued in a court filing in January that he was visiting his ailing father in London during one of the alleged trysts with the purported call girl Irma Nici.

Kendall said a basic investigation by the magazine would have shown that Beckham was elsewhere when the alleged trysts occurred. He asked the judge to allow the case to proceed so that he could conduct depositions that would bolster Beckham’s case, but Real refused.

Part of the problem, though, was that Bauer filed an Anti-SLAPP motion against Beckham. So this article neatly glosses over some of the case’s complications.

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

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After my first husband died, my credit files got mixed. That and my identity was stolen. On top of that, there is about a year during that time where I was lucky to remember my name. Some balls were legitimately dropped, and I was also taken advantage of.

I got involved in a web forum that no longer exists, and several people there had sued to get their credit files sorted out. In federal court. Pro se.

For many plaintiffs, pro se equals whackjob, but these were people who knew and respected not only the letter of the law, but the voluminous case law. Add to that the fact that Fair Credit Reporting Act cases and Fair Debt Collection Practices Act cases are typically for teeny amounts of money (FDCPA cases max at $1,000 plus actual damages, costs, and attorney’s fees), and you’ll see that except for the most egregious cases, it’s hard to find a lawyer to take them. There are just so many possible cases, and most litigants aren’t willing to go to all that effort for so little reward.

Plus, courts occasionally gave grudging approval to pro se parties in such cases, like this footnote in Oppong v. First Union:

Though not formally schooled in the law, Oppong has proven to be a resilient and sophisticated litigator who for years has battled the defendants to a draw in both the federal and state courts.

I wound up reading not only the entirety of the laws multiple times, I read all the case law. Thousands and thousands of pages of minutiae.

The First Federal Lawsuit

The first federal lawsuit I filed (C 04 5223 MEJ in California’s Northern District) was against Portfolio Recovery Associates and Capital One Bank. Essentially, a credit card in my name (which Portfolio and I discussed after the case was settled—it genuinely was not my account) had been sold to Portfolio with an alleged $1671 owing.

The offer letter was for a credit card issued by Capital One. (front) (back)

Apart from the fact it wasn’t my account, there were three things I was torqued about:

  1. The FDCPA generally doesn’t permit disclosing information to third parties about debts except in extremely narrow circumstances, e.g., credit reporting. The letter made it sound like illegal disclosure had occurred. There was no legally permissible reason for Capital One to have had the capacity to send the letter, and yet Capital One had.
  2. All communication from a debt collector must be accurate and non-deceptive. And this wasn’t. Two paragraphs from my complaint:

    When Plaintiff read the body of LETTER, however, she realized that the terms offered were not as the boldface item indicated. The terms state: “Your account will have an initial credit limit of $1 that will increase to $50 after you make your first payment to Capital One. Plus, for every $100 of charged-off debt you repay to Capital One, you’ll receive a $25 credit limit increase up to a maximum credit limit of $800.”
    Plaintiff asserts that this language is deceptive. The $800 credit limit is approximately 1/2 the amount of the alleged debt (rounded down to the nearest $100). The terms of the credit limit increases, however, are approximately 1/4 ($25 per $100 paid) of the amount of the alleged debt. Exhibit B shows Plaintiff’s calculations, showing a maximum possible credit limit of $425, far short of the $800 with which LETTER attempted to entice Plaintiff.

  3. I wasn’t even sure which of the two companies had sent the letter, because the front and the back gave different answers.

So I sued and it was settled pretty quickly. (Capital One took about a week, iirc.)

And Then There Was Merrick

Chuffed by early success, I decided to take on a bank where I’d owed the money (and paid it), but then got a deceptive letter after the fact. Specifically, I received two separate letters on two separate days thanking me for my payment in full on that date. They couldn’t both be true.

I’d had adverse action taken because they updated my credit report and I was feeling pissy about it, but this is the one bank that wouldn’t settle before more litigation steps were taken.

I’d never actually written a motion. I’d had a civil procedure class in paralegal coursework, but that was really more basic stuff. Motions were in the next class.

And yet, now I had to actually do it.

I kept telling myself, “You have a master’s degree in creative writing. You can do this.” Sure, it’s a different kind of narrative, more like an essay in an English class than like a novel, but a motion has a narrative structure, too.

The Weakness in My Case

The FDCPA only applies to third-party debt collectors, though there is a California state law that copies many of the provisions of the FDCPA and holds original creditors to those, too. So, worst case, I had a prima facie state case claim, and I had two letters, at least one of which was deceptive on its surface.

Except I’d filed in federal, so it was important that I prove that the FDCPA applied to this case. I was missing a piece of paperwork in my initial filing, which I eventually found. (That’s underlies the Order to Show Cause part of the ruling that’s in the header image.)

There’s another factor, though: the judge ruled one thing in error, and I wound up calling FDCPA attorneys in my district to see if they’d take an appeal. It was terrifying enough to write a motion for a federal judge to rule on, but the 9th Circuit? That was an order of magnitude scarier.

If you ever need a consumer law attorney, NACA is the organization for them. I’d found one, spoke to an attorney over the phone. He looked up my case and called me back.

“Your cites are better than 95% of the ones I see and you understand the case law,” he said. “You’ve got this.” He agreed with me that I had the law right and the judge had missed one point, and we talked about that.

I had no idea what I was doing as far as the mechanics of civil procedure went, but apparently I’d figured out how to write a motion. Go, me.

I filed a motion for reconsideration after my day in court.

My Day in Court

In May, 2007, I had my initial case management conference in the courtroom opposite Merrick’s hired litigator. I arrived early, and there were trial lawyers gathered outside the courtroom, each in suits more valuable than the entire amount of money I’d spent on every piece of clothing I owned. Most were involved in a huge medical class action case.

One of the attorneys, a woman, came over, curious about who I was. I’d told her, and she seemed genuinely excited for me despite me having this little case. It felt like being a minnow in a pod of friendly whales.

Many of them were gawking at the class action next door for Celebrex.

My courtroom had five cases for a case managdment conference. One of the lawyers for another case didn’t show up, so the judge put him on speakerphone. I felt SO mortified on his behalf (worse, he sounded like he’d been woken up by the call).

EDWARD BORACCHIA et al vs BIOMET, INC.
AIWA TROUTMAN vs UNUM LIFE INSURANCE CO et al
TOM SPEAR vs INTL UNION OF BRICKLAYERS et al
BARE ESCENTUALS BEAUTY, INC. vs L’OREAL USA, INC.
WILLIAM R. KLEMME M.D. vs NORTHWEST AIRLINES, INC

Doesn’t sound like a job that would ever get boring, really. Lots of interesting variety.

Anyhow, the judge was funny. She told lawyers who came before me, “You might want to invest in a rubber stamp that says CHAMBERS for your file copy. Marking the chambers copy is a part of local rules.”

When my case was called, I was afraid that I’d fall over in front of the judge. I was relieved that I managed to walk up to the podium without falling. When I had to speak, I had to grip onto the podium firmly lest I crumple at the knees.

I was terrified. I don’t think I’ve ever been that frightened.

The judge asked if I were computer-savvy. I allowed that I was. She suggested that I do electronic filing if defendant’s counsel agreed.

I wasn’t even chided for not having a rubber stamp. :)

Anyhow, the schedule issues came up, and she asked if we could really have our alternate dispute resolution that soon, and I realized I had to tell her that I was filing a motion for reconsideration.

That’s when I had the image of a pile of slippery pebbles, and a small panic attack. I was seriously afraid for a moment that I was going to fall over onto the floor, and wouldn’t that be fun. I held onto the lectern a little harder and made it through.

Merrick’s lawyer said he didn’t see the point of discovery, because the defense had submitted everything they had. The judge said, “Ms. Moen saw that something had been reported by a third party, and the inference was that the information was provided by Merrick. The plaintiff has the right to know what your client said about her to third parties, and I’m not going to deny her that.” (this was related to the way they credit reported after I paid them.)

I will tell you, there is something completely awe-inspiring about someone with that much power saying that little old you are actually important in some way.

She so rocked! (Aside from the part about the wrong ruling on one point, anyway.)

As we left the courtroom, the attorney I’d spoken to before the courtroom open gave me a fistbump, and I smiled. After exiting, opposing counsel asked, “Do you want to get rid of this?” Then he flew back to SoCal. (There’s also something awe inspiring about the other side flying someone in as opposing counsel.)

The Resolution

Given that a) the bank wanted to settle, and b) I was about to go on a long trip (Rick and I went to Greece, Egypt, and Turkey not long after the hearing), and c) I wanted to settle after I came back, we wound up settling. I never did find out what the 9th Circuit would have said or what the resolution of my reconsideration motion was.

Oh well.

The whole process was worth it for that one moment.

Oh, and Portfolio and Capital One changed the format of similar kinds of letters they sent in the future, apparently complying with the law. So, that’s a good thing I did.

IMG_0393-Edit

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

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This post discusses phrasing of the initial lawsuit filed by Ellora’s Cave and Jasmine Jade Enterprises against Dear Author and DA columnist Jane Litte. In Courtney Milan’s thread system, this is Thread A.

The Tense Thing

My most frequently overlooked problem when critiquing other people’s work is tense wobbles. So, while I noticed the change of scope in this section I’m going to quote, I’d missed some potential implications of the tense shift.

I was talking about the case with a friend of mine, and he said:

I notice they’re playing silly buggers with the tenses.
“have not” and “are”
and they don’t dispute that in fact they hadn’t been paid in six months.

Here are two of Jane’s allegations in the Curious article:

There is a set of authors who have not received royalty payments in over six months. EC has blamed this repeatedly on a new accounting system installed in December of 2013.
[…]
The total sum of unpaid royalties, editor fees, cover artist fees is in the several thousands, perhaps approaching six figures.

In EC/JJ’s lawsuit, here’s what they allege:

[…] Such false statements include:
[…]
That the Authors have not received royalty payments in over six months when in fact they are being paid.
[…]
That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.

In my Proving Substantial Truth post, I’d talked about the size of the data set in proving that “a set of” is untrue.

But I hadn’t talked about the fact that what EC claimed was defamatory in the lawsuit paperwork wasn’t actually what Jane Litte wrote. Courtney Milan talked about this some in the interview she did on the SBTB podcast.

Hypothetically Speaking

Let’s say the following are true:

  1. An article, published mid-September, states “a set of authors who have not received royalty payments in over six months.” Past tense. There are over 500 authors, but the article’s author knows the claims are true for at least three. a = {Fred, George, Mark}
  2. After the article was written, the publisher in question writes checks for all its authors due royalties for a given accounting month. Let’s say the royalties being paid are for May, the checks are dated August 31, and they are mailed in late September.

  3. After the checks are mailed, the publisher in question files a defamation lawsuit abut the blog post. In said lawsuit, the publisher claims, “That the contract authors (Authors) have not received royalty payments in over six months when in fact they are being paid.”

  4. Note that there’s no claim that said Authors are fully paid. Or that they had been being paid. In fact, it’s present continuous tense, making it sound like the checks are being written even as the paperwork for the lawsuit is being typed. (Lest one think I’m being harsh on this point, remember that we’re discussing a publisher. Tenses and nuance are their core competency.)

  5. After the lawsuit is filed, Fred, George, and Mark each receive a check for the most recent month’s royalties, but this does not change the fact that the language in the blog post was correct as of the date it was published. They are still owed back payments, however.

So, hypothetically speaking, it’s entirely possible that there was a set of authors who hadn’t received royalty payments in over six months, and for whom between the time of that post and the lawsuit being filed, checks had been cut for at least some payment, making the present-continuous-tense statement also true. (It’s probably also not necessary for every single author to be paid to make the present-continuous-tense statement true, either.)

Yes, well, that’s all well and good, but there was a second part to the article’s claim, and how could that work? Here’s a hypothetical.

EC claimed: “That unpaid royalties, editor fees, and cover artist fees amount to several thousands of dollars perhaps approaching six figures when they do not.”

This really hinges, I think, on nitpicking two phrases: “several thousands” and “perhaps approaching six figures.”

I’ll just throw this out there: if the amount owing is known to be in excess of $100,000….

No, I can’t finish that sentence. I can’t rationalize the verbiage.

Remember, “unpaid royalties” as of mid-September includes not only May’s royalties that were reportedly received at the end of September or early October, but also monies received—for hundreds of authors—for June, July, August, and so far in September. Not just amounts that may be past due.

When one looks at, say, the amount Lolita Lopez didn’t receive in December 2013 that was on her 1099 (tl;dr: $13,354.79), and realize that there are (or were) several big-name EC authors who were making that kind of money monthly, royalty amounts owing in excess of $100,000 doesn’t seem that big a stretch for 4-1/2 months, even if the dramatic drop in Amazon sales were true.

Even without including editors and cover artists.

However, claiming that someone owes less than they actually do isn’t defamatory.

I have no personal information about the actual facts of the Ellora’s Cave case, so I have no information about the veracity of my hypotheticals.

So…?

The point of the above: if what Jane Litte wrote weren’t true, why not file a lawsuit claiming that specific language was untrue?

Why bother using different language in the filing when Jane’s post is right there to copy/paste from?

I’ll leave you to ponder that and end with a throwback moment.

Ellora’s Cave Legal Throwback: Two. Thousand. Three.

Over the past couple of months, I’ve read a great deal of the documents involved in the Brashear case where EC/JJ were defendants.

As a fascinating aside, one of the items EC submitted in their answer and counterclaims was a snippy email by Brashear to complaints that payments were, once again, late. That was in October 2003.

It was in response to an email that said this (and then some):

Look, I KNOW you guys work hard at keeping everything together at EC and this new accounting system has been trouble — BUT, don’t promise that checks are going to be mailed on a certain date and then fail to deliver. OK? (This is not the first time this has happened.)

Two. Thousand. Three.

It’s Chestnut Season

In addition to the above, I note that we should seasonally switch from popcorn to chestnuts—especially given the subject matter.

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

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Riffing off Courtney Milan’s post here.

While I haven’t followed appellate cases on the Communications Decency Act § 230 the way Courtney has, the first thing I did after reading Dear Author’s answer was to read up on existing case law. Like Courtney, I didn’t see any that applied to something similar to the Dear Author situation.

As Courtney points out, most of the CDA § 230 cases involve larger companies completely unrelated, legally speaking, to the person who wrote the content in question at the heart of the suit.

Rick and I talked a lot about the implications, some before I wrote this post about DA’s answer, and some after it, but every time we talked about it, we agreed that, at its heart, the CDA does protect Dear Author LLC.

The fact of a separate legal person isn’t even an issue here.

For example, say you’ve let an author write a guest post on your own blog and you’re unincorporated. You get commenters too.

Is that still an interactive computer service?

Here’s the CDA definition again:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

Yep, that still applies.

In reading the definitions, here are some examples:

  • “Interactive computer service” – a blog
  • “Information content provider” – the writer of a specific blog post (or a specific comment)
  • “Access software provider” – WordPress or Blogspot or whomever

I said this before:

In other words, because Jane Litte, the pseudonymous author of the Curious post, is not Dear Author LLC, the LLC providing the Dear Author service offering the Curious post, Dear Author LLC is not liable for any statements Jane Litte made.

That’s true in this case (my opinion, not yet set in legal precedent afaik), but it shouldn’t actually matter that these are different legal persons.

If I wrote my own blogging software and someone wrote and posted a guest post, I as the publisher and software writer—but not the information content provider—should still be protected.

So What Does This Mean As Far As the Dear Author Case?

A legal case is about triable matters of fact and applying legal investigation methods (discovery) to determine those facts and settle what points of law apply to them.

At the point where the matters of fact are determined and it has become a simple matter of law, a party can move for summary judgment, moving to apply that matter of law to that set of facts. (And then the other party typically opposes with their own brief, and the judge rules, sometimes asking for a hearing first.)

Here’s a quote from a free legal dictionary.

Two criteria must be met before summary judgment may be properly granted: (1) there must be no genuine issues of material fact, and (2) the Movant must be entitled to judgment as a matter of law.

I believe this is a matter of law that’s clear about DA being entitled to judgment. After all, CDA § 230 states:

It is the policy of the United States—

  1. to promote the continued development of the Internet and other interactive computer services and other interactive media;
  2. to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

…and…

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Dear Author is not Jane Litte.

It doesn’t matter that this is a novel application of CDA § 230. That’s why you hire someone like Marc J. Randazza: because a great lawyer thinks outside the box of existing case law and looks to intents behind the laws.

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

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As you probably heard, the majority in the Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) ruled against equal marriage.

The dissent is blistering. It starts on p. 43.

Here’s the opening:

The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.

And here’s the closing:

More than 20 years ago, when I took my oath of office to serve as a judge on the United States Court of Appeals for the Sixth Circuit, I solemnly swore to “administer justice without respect to persons,” to “do equal right to the poor and to the rich,” and to “faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States.” See 28 U.S.C. § 453. If we in the judiciary do not have the authority, and indeed the responsibility, to right fundamental wrongs left excused by a majority of the electorate, our whole intricate, constitutional system of checks and balances, as well as the oaths to which we swore, prove to be nothing but shams.

I’ve seen a few statements of no confidence in the majority opinion before, but none so thorough.

Wow.

One more paragraph, from p. 61 (close to the end):

Moreover, as it turns out, legalization of same-sex marriage in the “nineteen states and the District of Columbia” mentioned by the majority was not uniformly the result of popular vote or legislative enactment. Nine states now permit same-sex marriage because of judicial decisions, both state and federal: Massachusetts, Connecticut, Iowa, New Mexico, and Colorado (state supreme court decisions); New Jersey (state superior court decision not appealed by defendant); California (federal district court decision allowed to stand in ruling by United States Supreme Court); and Oregon and Pennsylvania (federal district court decisions not appealed by defendants). Despite the majority’s insistence that, as life-tenured judges, we should step aside and let the voters determine the future of the state constitutional provisions at issue here, those nine federal and state courts have seen no acceptable reason to do so. In addition, another 16 states have been or soon will be added to the list, by virtue of the Supreme Court’s denial of certiorari review in Kitchen, Bostick, and Baskin, and the Court’s order dissolving the stay in Latta. The result has been the issuance of hundreds—perhaps thousands—of marriage licenses in the wake of those orders. Moreover, the 35 states that are now positioned to recognize same- sex marriage are comparable to the 34 states that permitted interracial marriage when the Supreme Court decided Loving. If the majority in this case is waiting for a tipping point, it seems to have arrived.

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

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Answer PDF here.

Note that this is a paragraph-by-paragraph response to the original complaint, so you should have a copy handy to look at them side-by-side.

I also haven’t compared it to the Dear Author answer yet.

The full docket with color-coding and blog post links and PDF original docs links is here. Note that in my blog posts, I refer to Jane Litte by her Dear Author pen name, but the legal documents, including that docket, use her legal name.

Short Version

Nothing leaped out at me off the page.

Dear Author’s answer had the affirmative defense of immunity under the Communications Decency Act (CDA) § 230, and Jane’s doesn’t. This is expected.

Apart from that, a quick scan of the two answers shows that they’re substantially similar.

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

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Last week, plaintiffs Ellora’s Cave and Jasmine Jade Enterprises along with defendant Jane Litte submitted a stipulated (meaning: opposing sides agree) motion for extension of time to answer.

Today, the judge denied that motion. That means all three parties who haven’t filed answers will have theirs due (I believe) next week.

What’s Up Next?

  1. We’re still waiting for the ruling on the remand to state court. It’s expected to be denied.
  2. I’m sure some interesting stuff will turn up in the answers.
  3. Jane Litte may file a counterclaim.

Following that, the exciting discovery phase.

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

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I had some expectations about what the reply would consist of.

tl;dr version: I’m disappointed.

My Take on It

  1. 10/24 (Friday) EC’s lawyer files a motion to punt (remand) the case back to state court relying on Rose v. Giamatti.
  2. The same day, DA’s lawyer shoots an email to EC’s saying, “I’m unsure if you’ve reviewed the case you primarily rely upon, but I believe that Rose v. Giamatti says the exact opposite of what you’ve raised it for.” In other words, Randazza said, basically: “Heads up: brain fart?” Which offered the opportunity for Mastrantonio to fix it.
  3. Not hearing anything back, DA’s lawyer files an opposition on Sunday the 26th, including the email from #2. Which was included to demonstrate several points made, not just that one.
  4. On Monday, 10/27, the judge gave EC/JJ a week to file a response. No evidence the judge had read the underlying paperwork, but it decreases his odds of getting it punted to a higher court if he allows time for Plaintiff to clarify.
  5. EC/JJ filed their response on the 31st. Halloween. Trick or treat. It used the same single case citation.

It’s unusual for a motion to rely on a single case cite, and unusual for both sides to rely on the same single cite.

What I expected EC’s lawyer to do: find some other case cites that also cited Rose v. Giamatti and use some more of his skills to strengthen his narrative. ::cough::

Courtney’s analyzed the underlying issues, and I agree. Especially this part:

I lay this all out because EC’s reply confuses the merits of the controversy with the merits of a temporary restraining order. In order to evaluate the reply, you need to understand that first, these are two separate things, and second, that no lawyer–indeed, no halfway decent law student–should confuse the two.

Another Issue Here

In the footnote:

Plaintiffs indicated that because the facts on the ground had changed, the urgency associated with a temporary restraining order had become attenuated and that a consolidation of the hearing with the final hearing on the merits under Rule 65(a)(2) would avoid 2 hearings, 2 trips for defense counsel and his client, 2 briefings, and twice the use of the Court’s time and resources.

I just mention the following and allow you to draw your own conclusions….

  1. Randazza is a noted first amendment attorney.
  2. EC files for a TRO/Preliminary injunction against Dear Author to prevent further postings about EC from DA.
  3. Case law about prior restraint is heavy first amendment case law.
  4. First amendment cases are best heard in federal court (though I’m not sure they’re necessarily federal questions).
  5. EC/JJ wants a remand to state court.
  6. Suddenly the TRO’s urgency has “become attenuated.”

::cough::

Note that the case wasn’t removed because of federal questions, though. It was removed for diversity. Here’s a bit from the UScourts.gov site that explains that (emphasis mine):

A case also may be filed in federal court based on the “diversity of citizenship” of the litigants, such as between citizens of different states, or between United States citizens and those of another country. To ensure fairness to the out-of-state litigant, the Constitution provides that such cases may be heard in a federal court. An important limit to diversity jurisdiction is that only cases involving more than $75,000 in potential damages may be filed in a federal court. Claims below that amount may only be pursued in state court. Moreover, any diversity jurisdiction case, regardless of the amount of money involved, may be brought in a state court rather than a federal court.

This is one case where the defense gets to pick the court, though, because it’s about fairness to them.

Let’s Dig Into Some Older Cases

I wanted to look and see if there were other similar remand cases the federal judge had decided on. “Remand” is a hard word to search on because most federal judges of any tenure have had cases go up on appeal, then be remanded back to their original (federal) court to resume the remainder of the case.

This, however, was a different kind of remand: a case originally filed in state court being removed to federal, then an opposition filed.

22 Exchange LLC v. Exchange Street Associates LLC

Ruling here. Remand was allowed. (Remand ruling took 7 days; attorney’s fees were allowed.)

This situation does not apply in the EC/DA case.

In the case ruled on, a Delaware Plaintiff sued an Ohio Defendant, and the Defendant removed to federal. However, one of the situations where you can’t remove to federal for diversity jurisdiction is if you’re sued in your home state. It’s called the forum defendant rule.

In other words, if Dear Author/Jane Litte had been sued in Iowa where they are based, they wouldn’t have been able to remove to federal. However, that didn’t happen, and thus the underlying reason Exchange was remanded isn’t applicable here.

Similarly, IndyMac Bank, F.S.B. v. Harrison, Rivard, Zimmerman & Bennett, Chartered et al is inapplicable.

Electrical Enlightenment, Inc. v. Lallemand et al

Electrical Enlightenment, Inc. v. Lallemand et al remanded for lack of subject matter jurisdiction. Judge says it best:

Although Defendants attempt to couch the terminology used in the Complaint to assert a federal cause of action under copyright law in paragraphs 13-15, the mere use of the terms “copying Plaintiff’s commercial speech” does not make a copyright claim out of a breach of contract action.

(Remand ruling took over 2 months; attorney’s fees were allowed.)

Lasher v. Bank of America

Ruling here. (Remand ruling took just over a month, but denied attorney’s fees.)

Essentially: lack of a federal question, so lack of subject matter jurisdiction.

In addition, the resolution of the federal question will not be dispositive of the case. First, numerous pure state law claims have been plead by Plaintiffs. Furthermore, even the third cause of action will not be resolved by resolution of the federal law.

Two Others

This case there was a remand mentioned, but I don’t see a response to it on the docket.

Last but not least, this docket has a boatload of people and I don’t want to have to sort it out.

So the prior history I could find doesn’t really shed any light, unfortunately.

So When?

I’m unclear if a remand is considered a dispository motion—or not. Dispository (or dispositive) motions are ones that dispose of some aspect of a case: a motion for summary judgment, for example.

Since a remand ends the case with respect to that court, I’m not sure if it’s considered dispositive. It’s simply a civil procedure point I don’t know.

Anyhow, local rules say dispository motions need rulings within 30 days and other motions within 60. So it could be a while.

Or not.

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

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Substantial truth can be tricksy. Here’s a DMLP post with a few examples.

Two of those examples where the statements were ruled substantially true:

A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).

A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

Look, I haven’t read up on the case law, but the above two examples should demonstrate that “substantial truth” isn’t cut and dried.

Hypothetically Speaking

Let’s say the claim in question is about “a set of authors” and whether or not they’ve been paid in a timely manner. Let’s say there are more than 500 authors, each of which has one or more books.

Now, the person believing they’ve all been paid may in fact only have been double-checking the highest earners.

However, let’s say the claims are true for three authors:

a = {Fred, George, Mark}

That still means one needs to sift through an unknown large portion of the data set before one determines that it’s true for “a set” of them.

And Now an Intermission

I’m done with the above hypothetical.

I have no personal information about the actual facts of the Ellora’s Cave case. However, I’d like to look at some back-of-the-envelope calculations.

How Big Is the EC Data Set?

Let’s go with the following assumptions:

  1. 934 authors (last I counted). Let’s round down to 900.
  2. Amazon gives me 6,767 items when I search for “Ellora’s Cave.” Let’s assume 4,500. Ergo, an author has an average of 5 titles, including paperback editions.
  3. Each book sells, per month, in an average of 5 stores from: EC’s own site, ARe, Kindle, Nook, Kobo, Google, iBooks, foreign markets for same, and any paperback vendors.
  4. Need to look back to when the accounting system changed last year, so 10 months of data at present.
  5. Each line item has seven pieces of data per month per author (per Cat Grant’s statements). The 7 pieces of data are: ISBN, title, format, store, amount received per unit, qty sold, total received (calculated, so not actually a separate piece of data), royalty %, royalty paid (also calculated).

So for each month:

4500 books x 5 stores books sold in that month x 7 other pieces of data = 157,000 pieces of data (or 174 per author). Per. Month.

Times ten months, so 1.57 million.

Consider the legal and accounting billing that would be involved in re-verifying and distilling 1.57 million pieces of data.

Another Aspect of Substantial Truth

In a case where “a set of authors” may not have received timely payments, royalty payments received by the publisher not corresponding with line items paid to authors could potentially also be a source of substantial truth.

Therefore, one would also need to audit amounts received from, say, Amazon, and amounts paid out in royalty checks that month, and determine that the amounts were equal. (Especially when others have said they’ve seen no Amazon drops during the same period for similar non-EC books.)

There are also around 9,000 checks to sort out.

  • When were they written?
  • When were they mailed?
  • When were they cashed?
  • When did they clear the bank?
  • Are any missing? Either not paid or not cashed?
  • If they’re missing, were they actually cut?

In theory, all that information is already entered and double-checked and could be provided to the defense at a moment’s notice.

The Question that Started This Post

http://twitter.com/Soenda/status/526866164103004160

It’s a good question. It doesn’t change the absolute truth of what was said on the day it was said, no.

But if events post-filing help show substantial truth, then probably they’re relevant.

http://twitter.com/deirdresm/status/526868606026383360

My Intuition

This case, if it gets all the way to a jury trial, will be far, far more expensive to litigate than other people have expected because the potentially triable matters of fact involve large data sets.

It’s my understanding that the burden of proof is on the plaintiff to show substantive falsity. Meaning: Ellora’s Cave and the mysteriously joined Jasmine Jade Enterprises need to demonstrate that.

Can they sample the data?

I don’t see how they can prove that “a set of authors” is defamatory without the full data being examined. “A set of authors” doesn’t need to be a large set.

My intuition, given the lagging of checks mailed weeks after the check date, all the reports of no answer for months when authors asked about royalty checks, is that that aspect of the DA post, at least, was substantively true.

Consider, for example, how small the two examples at the top are in terms of data. A single arrest. A single drug test, and possibly one or more followups. But not 1.57 million of them.

Completely different animal, litigation-wise.

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

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First: New EC-themed Art!

See above.

I’ve been trying to make a habit of including art with posts so there’s always a featured image. It’s a tough job. Broken ankh render from The Hairy Man.

Ellora’s Cave Lost Its COO?

Behold the current LinkedIn profile of Susan Edwards, who was Ellora’s Cave’s COO.

Note that it lists “Writer and Editor” as a job from “1980 – Present”, but Ellora’s Cave from “January 2005 – October 2014”, meaning she’s no longer there.

se_linkedin

Detail of the Ellora’s Cave entry:

se_ec_detail

Now Dear Author tweeted this last month:

https://twitter.com/dearauthor/status/511638397107310592

…and…

https://twitter.com/dearauthor/status/514524281607581697

But this is the first I’ve heard that it was externally verifiable.

Ellora’s Cave Allegedly Selling Titles It Doesn’t Have the Rights To

Angelia Sparrow posted this morning.

My mail today. Why does a check cut on September 30 have an October 25 postmark?

Why are books that I have had the rights returned still on sale?

“Eight Days Ablaze” was returned in Feb. I am not getting paid for it.
Why is it still available at Amazon, iTunes, GooglePlay, and Ellora’s Site itself?

“Eight Days Ablaze” is apparently still theirs. I checked my reversion letters, and it is not mentioned. “For Love of Etarin” and “Raising the Dead” however, HAVE reverted.

“For Love of Etarin” is the same way. And yet, it still available on GooglePlay.

Glad Hands and Privateer’s Treasure are still up on Amazon, And the rights reverted back August 15.

I can verify that it’s still on sale, but obviously I have no personal notice of whether or not the rights are reverted. I’ll just point authors to a resource out there for you. If your rights are reverted, then a DMCA takedown notice to the vendor is an appropriate—and probably the fastest—action.

It doesn’t give you the correct royalties for any amounts that were due you, though. That has to be addressed separately. Unfortunately.

Previous post of interest from Angelia.

I previously talked about Shoshanna Evers’s related story of books being sold after reversion here.

Also, Cat Grant shows her May 2014 royalty statement, received in September, where she states that she was paid for a Nook ebook on a title that, per her, reverted in November 2013.

B&N/Nook pays 60 days after the end of the month. So, if a sale took place in November while EC still had the rights, it should have been in the royalty statement for February or maybe March. May is unreasonable.

Again, I can see what the allegations are, but I don’t have personal knowledge of the reversion, just taking the claims at face value. If three authors are correct, how many other authors has EC been selling the works of without the rights to?

The No-Frills EC v. DA Lawsuit Page

Yesterday, out of frustration at the lawsuit documents and the order mine weren’t in, I created this simple page that emulates the federal court docket.

For some exhibits, there’s a short summary. Each, where applicable, is color-coded based on the lawsuit “thread” as Courtney defined them. And, if there are blog posts relating to them, they’re listed below the docket item.

It’s a very lightweight page: no images, no Javascript, and very very little CSS.

Lawsuit Update

Yesterday, defense filed their opposition to Ellora’s Cave’s Motion to Remand (from federal court to state court). Courtney Milan analyzes.

Particularly interesting footnote:

On 7 October, an email was sent to at least one of Ms. Lampe’s supervisors. On 14 October that same email was forwarded to the entire department within which Ms. Lampe works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.

Wow. Just. Wow.

Let me pull this one line out and bold it.

Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case.

That is not OK.

From the opposition brief itself:

All parties agreed that the matter required needed additional time, and therefore the parties stipulated to a hearing to be held on 27 October. In the intervening period, counsel for the Defense was able to fully evaluate the case, and on 17 October it became 100% clear that removal was appropriate.

I’m just going to put those two together and back away slowly.

What’s Next?

Jane Litte’s answer is expected soon. The court granted the motion to continue on the TRO and gave EC/JJ 7 days to file a response to defense’s objection about the removal. In that way, the removal issue is settled before the TRO hearing, which does make sense.

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

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Courtney Milan has the blog post and the exhibits.

Let’s put it this way: birther Orly Taitz is famous for her remand-back-to-state-court motions. Not someone to emulate.

This is an aspect of federal procedure I don’t know a lot about, but my understanding is that removal is automatic, and that remanding is for related courts (e.g., an appeals court can, and often does, remand a case back to a lower court). In this case, however, I’m not sure a federal court has the legal right to remand to state court.

As Courtney Milan posts:

What to expect next: DA/Jane will almost certainly file a memorandum opposing a remand. The court will decide if it wants to hold a hearing on this or simply decide on its own, and we should get a decision from the court. That decision will almost certainly seal off this thread once and for all, and we can move on to the many, many other issues.uu

One Note on the Answer

Courtney is waiting for Jane Litte’s answer before posting commentary on both answers. She says (in the post linked above):

The reason I have not done this yet is that the answer is from Dear Author alone, and not from Jane in her personal capacity. Some things Jane will say in her answer will be duplicative. Some things she says will, I suspect, not be (which is why they didn’t file together).

I think part of the reason to file the answers separately is to make clear that Dear Author, LLC and Jane Litte are legally separate entities.

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

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The exciting invocation of the Communications Decency Act in a lawsuit about an erotica/erotic romance publisher—but not in the way you’d expect. Up next after “Previously on….”

Earlier Documents of Note

From now on, I’ll post a quick recap at the beginning of this series.

  1. Dear Author’s blog post, The Curious Case of Ellora’s Cave. Ellora’s Cave and Jasmine Jade Enterprises sued Dear Author and Jane Litte over this post.
  2. Ellora’s Cave’s lawsuit, complete with the TRO request. I discuss the memorandum of law and the request to out anonymous commenters in this post.
  3. The removal to federal court, which I posted the meat of the other day.
  4. Opposition to Plaintiff’s Motion for Preliminary Injunction. I cover a few points in this post. Courtney Milan gives a deeper understanding of the document in her post. Exhibits: (Exhibit A, from Jane Litte; Exhibit B, from an editor hired in 2003; Exhibit C, from an author first published by EC in 2007; Exhibit D, from an author first published by EC in 2013; Exhibit E, from an editor hired in 2012; Exhibit F, from an editor hired in 2013; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC and Tina Engler/Jaid Black.)

Also of interest: Courtney Milan’s post, On Limited Purpose Public Figures. All my blog posts relating to Ellora’s Cave are tagged. There are a few not directly related to the lawsuit.

Dear Author’s Answer

Note that this is just Dear Author’s answer. I expect Jane Litte’s answer shortly.

Document here. Because it’s a paragraph-by-paragraph response to the lawsuit, you’ll need to have a copy of that to read side-by-side.

Responding to the first two paragraphs, “Consequently, this averment is denied and strict proof demanded.” That’s some legal verbiage that I may not understand the nuance of. The import, however, is to ensure that the correct parties are suing Dear Author and Jane Litte.

It starts to get interesting in ¶ 10:

Admitted that Defendant [Litte] authored an article entitled “The Curious Case of Ellora’s Cave,” which was published on the blog Dear Author, which is owned and operated by Dear Author. Denied as to the defined term “Libelous Publication” as an erroneous legal conclusion without factual foundation.

The next few paragraphs of fallout are flatly denied.

When it gets to the nuances of EC’s relationship fallouts, the phrasing changes to:

Dear Author is without knowledge or information sufficient to form a belief as to the truth or falsity of the corresponding averment. Consequently, this averment is denied and strict proof demanded.

Here are the most interesting paragraphs that applies to (sorry, 15-17 are being auto-renumbered to 1-3, grr):

  1. This Libelous Publication has caused distress among current Authors under contract with Ellora’s, and Ellora’s has received numerous contacts from Authors wishing to rescind contracts based on this Publication.
  2. This Libelous Publication has caused distress among employees and contractors with Ellora’s and Ellora’s has received numerous contacts from employees and contractors concerned about the current state of the business.

  3. This Libelous Publication has also prevented Ellora’s from contracting with other potential authors.

I would guess (being an analytical sort), that in order to prove ¶ 15, one would have to show what the rate of authors requesting reversions/cancellations were before the publication, and what they were after. That would require excellent recordkeeping, though. (It would also require proof that defamation occurred, and a causal link.)

I’m not sure that ¶ 16 implies actual damages, especially not after the August 19th publication about Ellora’s Cave layoffs. That’s almost a month before the Curious post.

¶ 18-19 are about Jasmine Jade. Frankly, I’m not sure why Jasmine Jade is a party to this action. There is only one reference to JJ in the Curious post, and it’s about a tax lien that anyone could look up.

The rest of the responses are denials of various sorts.

Affirmative Defenses

Affirmative defenses are a curious beast. I’m guessing that Courtney will go into this later, but basically they are reasons why, even if the allegations are true, that aspect of the case can’t proceed.

An example would be statute of limitations. You sue for something where the law gave you a year to sue and it’s now 2 years after the event happened. Everything you say is true, but if the defense raises statute of limitations as an affirmative defense, then the lawsuit can’t proceed.

The other aspect of affirmative defenses is that they typically have to be raised in the answer. They can’t be brought up later. Thus, the affirmative defenses tend to be rather kitchen sink in approach.

First Affirmative Defense: Communications Decency Act

In order to understand why this affirmative defense is hilarious in context, one needs to know what the original intended purpose of the CDA was. Some excerpts from its legislative history:

What became the Communications Decency Act of 1996 was initiated in the Senate Commerce, Science and Transportation Committee […] to expand the prohibitions against obscene, indecent and harassing phone calls so that they would apply to all forms of electronic communications. The amendment was offered “to address an increasing number of published reports of inappropriate uses of telecommunications technologies to transmit pornography, engage children in inappropriate adult contact, terrorize computer network users through “electronic stalking,” and seize personal information […].”

The amendment from Feinstein, cosponsored by Republican Senator Trent Lott from Mississippi, sought to require cable and satellite companies to fully scramble any sexually explicit adult programming.

The Telecommunications Act of 1996 began in the House as HR 1555. […] There were disputes over efforts to limit internet indecency and television violence though. The committee bill requested that the attorney general‟s office submit a report evaluating the enforceability of current criminal laws governing the distribution of obscenity over the internet, assessing the Federal, State, and local law enforcement resources available to enforce those laws, evaluating the technical means available to combat obscenity, and making recommendations on the means of encouraging the development of new technologies to deal with obscenity.

So let’s look at the affirmative defense here.

  1. Defendant Dear Author is a provider of interactive computer services as defined in 47 U.S.C. § 230(f)(2).
  2. Dear Author neither created nor authored the content of any of the statements complained of in Plaintffs’ Complaint.

  3. Under 47 U.S.C. § 230(c)(1), Dear Author cannot be treated as the publisher of the above complained-of statements, and thus cannot be held liable, either at law or in equity, for the contents of the statements.

47 U.S.C. § 230(f)(2) (link to law) defines an “interactive computer service”:

The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The reason that blogs allow comments and internet forums exist is because the CDA makes it feasible to not get caught up in every squabble.

And 47 U.S.C. § 230(c)(1) states:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In other words, because Jane Litte, the pseudonymous author of the Curious post, is not Dear Author LLC, the LLC providing the Dear Author service offering the Curious post, Dear Author LLC is not liable for any statements Jane Litte made.

Or, in short, law says you’ve got the wrong person.

I admit to not being up enough on CDA case law to know what rulings have been. I am more familiar with cases like Religious Technology Center v. Netcom and the ruling excerpt incorporated into the Digital Millennium Copyright Act, if only because I was at ground zero during that controversy.

Second Affirmative Defense: Truth

  1. Although the burden of proof for falsity is upon Plaintiffs, as applied to Plaintiffs’ claims for defamation, Dear Author avers that all statements allegedly made by Dear Author complained of by Plaintiffs are true.
  2. Any complained-of statements allegedly made by Dear Author that may happen to lack 100% factual veracity are substantially true, and thus treated as true as a matter of law.

  3. As truth is an absolute defense to defamation, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Truth is an affirmative defense to defamation.

Third Affirmative Defense: Substantial Truth

  1. Any statements allegedly made by Dear Author complained of by Plaintiffs that are not literally true are substantially true, in that the “gist” or “sting” of the article is true.
  2. As substantial truth is a defense to claims for defamation, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Pretty straightforward.

Fourth Affirmative Defense: Qualified Privilege

I know almost nothing about qualified privilege as it relates to defamation cases, but the plaintiffs cited an Ohio case (#5, Am. Chem. Soc’y v. Leadscope, Inc.) that discussed it extensively. PDF of the ruling is here.

  1. All allegedly actionable statements were subject to qualified privilege as they were directed to parties having a common interest in the subject matter of the statements, particularly authors who either had a contractual relationship with Plaintiffs or who were contemplating one.
  2. All allegedly actionable statements were subject to qualified privilege as they were made in the course of a justifiable exercise of a moral obligation, free of improper motive or malice.

  3. All allegedly actionable statements were subject to qualified privilege as they were fair comment and criticism of Defendants’ business practices, matters of significant public and social interest.

As someone who bought a few of EC’s titles last year to evaluate them as a potential market, I feel like this was aimed at me. Thanks, Jane.

Fifth Affirmative Defense: Failure To State A Claim

  1. Plaintiffs have failed to sufficiently plead the elements of a cause of
    action for libel.
  2. Plaintiffs have failed to sufficiently plead the elements of a cause of
    action for libel per se.

Like many other causes of action, there are specific things that have to be alleged in order for there to be a claim for defamation. This (short) page lists them.

Re-reading the complaint, it seems like there’s at least some language to cover all the bases. If the judge rules that one of the required elements doesn’t exist and failure to state a claim isn’t raised as an affirmative defense, I’m not sure what would happen, exactly.

Sixth Affirmative Defense: Failure To Join an Indispensable Party

I saw this one coming.

  1. Plaintiffs have failed to join an indispensable party, Tina Engler, in their
    Complaint.
  2. Tina Engler is an indispensable party because Plaintiffs’ Complaint
    identifies allegedly defamatory statements about her allegedly made by
    Dear Author.

  3. Engler is also an indispensable party because many of the allegedly
    defamatory statements identified in the Complaint attribute Plaintiffs’
    declining business performance to the actions of Engler.

  4. In Engler’s absence, the Court cannot afford complete relief among
    Plaintiffs and Dear Author.

  5. Because the allegations in Plaintiffs’ Complaint would also entitle Engler to
    bring an action against Dear Author for the same statements identified in the Complaint, not including Engler in this litigation would potentially make Dear Author subject to a substantial risk of incurring multiple or otherwise inconsistent obligations.

When asked why she wasn’t a plaintiff, here’s my answer in a comment on a previous post:

Last I heard, Jaid/Tina was 90% owner. As for why she’s not a plaintiff, my understanding of the legal concepts is that it’s a jurisdiction issue.

It’s a general principle of law that to sue for damages, you have to sue where the damage occurred. If someone published allegedly defamatory information on the internet about you and the person posting it was in Iowa and you’re based in Ohio, then the alleged damage occurred in Ohio. So that’s why EC sued in Ohio. (Note: this is a simplification because jurisdiction can get complicated.)

Catch is, Jaid lives in West Hollywood, California, so any alleged damage would be in California, and an Ohio court would not have jurisdiction to determine or award damages. Had Jaid also sued separately, then there probably would have been a motion to join both the cases in federal court, which is used to dealing with mixed jurisdiction cases.

However, California has strong anti-SLAPP protection, so California’s not a good jurisdiction for this particular case. As I understand it, anyway. (And, again, IANAL and TINLA.)

Getting back to the ownership issue: even when one is 90% owner of a corporation, the legal interests of the company and the legal interests of the individual may diverge significantly over the course of a trial, and it’s best practices to have separate counsel. That doubles the legal fees. In some cases, it may make sense to fold the company, and then the minority shareholders may wish to fight that, and that’s a completely separate issue from the interests of the individual majority owner as a person.

The simple way around this would have been to sue in federal court from the outset.

However, I’m not convinced that ¶ 12(f) and 12(g) in the complaint were strong allegations. They felt more like hurt feelings to me.

Seventh Affirmative Defense: Lack of Actual Malice

When in doubt, always look to the Supreme Court case that’s the seminal ruling on defamation law.

  1. Plaintiffs are general purpose public figures, or at least public figures in the context of Adult Romance publishers. Accordingly, their defamation claims are subject to the “actual malice” standard set forth in New York Times Co. v. Sullivan, which requires that the defendant made the allegedly defamatory statements with “knowledge that [they were] false or with reckless disregard of whether [they were] false or not.” 376 U.S. 254, 280 (1964).
  2. Dear Author at no point harbored any doubt as to the truth of the complained of statements, and had no reason to doubt their accuracy.

  3. As actual malice is a requirement to establish liability for defamation in these circumstances, Dear Author cannot be liable for Plaintiffs’ defamation claims.

Dear Author’s Counterclaim

Document here.

Can be summed up as: because the suit was filed as an abuse of process—in part because Dear Author is exempt under the CDA and in part because the claims are baseless—Dear Author is requesting compensatory and punitive damages as well as costs.

What’s Next?

I’m guessing Jane Litte’s answer, along with a likely counterclaim, are coming up next. Courtney will post on both after Jane’s is filed. Unless there’s something particularly interesting, I’ll probably just post a link to her article when it’s up.

There’s also a hearing on the 29th about the TRO/preliminary injunction, i.e., taking the Curious post offline.

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

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Earlier Documents of Note

  1. Dear Author’s blog post, The Curious Case of Ellora’s Cave.
  2. Ellora’s Cave’s lawsuit, complete with the TRO request. (included in removal to federal court document) I analyze the memorandum of law and the request to out anonymous commenters in this post.
  3. The removal to federal court, which I posted the meat of the other day.

Opposition to Plaintiff’s Motion for Preliminary Injunction

In the first substantive response to Ellora’s Cave’s lawsuit, Dear Author’s attorney, Marc Randazza, has filed an Opposition to Plaintiff’s Motion for Preliminary Injunction, and Courtney Milan has graciously hosted the 25-page PDF and its exhibits. Exhibits: (Exhibit A, from Jane Litte; Exhibit B, from an editor hired in 2003; Exhibit C, from an author first published by EC in 2007; Exhibit D, from an author first published by EC in 2013; Exhibit E, from an editor hired in 2012; Exhibit F, from an editor hired in 2013; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC and Tina Engler/Jaid Black.)

Courtney found it just before retiring for the evening. I’ve read it and the supporting documents (not included in the 25 pages). Courtney will post her own notes in the morning, but I’m going to write up a few comments about turns of phrase that amused me. Because of the miracle of the internet, I’m going to schedule this post for when I’m asleep. :)

Update: Courtney’s post is here, and it links to the exhibits not in the original opposition document. Thank you to all the people who provided statements.

Seems Like Old Times

Footnote at the bottom of page 3:

The defendant has gathered what evidence she could, informally. However, should this case continue, and perhaps prior to the hearing on this motion, she intends to depose the management of Ellora’s Cave. But, despite the reasonable and exceedingly courteous efforts of counsel for Plaintiffs, Ellora’s Cave and its management do not appear willing to provide deposition testimony before the hearing.

So, Ellora’s Cave sued Dear Author, right? You’d think, given that they filed suit on September 26th, they’d love to have a quick deposition to ensure they get as much on the record to support their motion for a TRO/preliminary injunction, right?

This footnote basically says that EC’s stonewalling their own attorney who has been “reasonable and exceedingly courteous.”

If you read the order from the Brashear case, you’ll note this is a consistent tactic. Except in the DA case, EC’s the plaintiff, not the defendant.

The Ebola Footnote

Even if Ellora’s Cave were in perfect financial health, these are the symptoms of an ailing company. It is as if a perfectly healthy person were suffering from a severe headache, muscle pain, weakness, diarrhea, vomiting, and abdominal pain. A reasonable person might say, with all candor and right to do so, that the patient appears to have Ebola symptoms. Of course, the subject might counter that they were only suffering from a hangover. But, the First Amendment would permit either observation.

Courtney’s right that this could be perceived as party dickishness insofar as two of the Ellora’s Cave cover models are currently in mandatory quarantine for ebola after being on Amber Vinson’s flight when coming home from the annual Ellora’s Cave convention, Romanticon.

However, I think it unlikely that Randazza knew about this issue, and did not intend it thus. Update: Randazza clarifies in comments to Courtney that, indeed, he did not know.

The Goulash Analogy

Ellora’s Cave nit picks minor possible factual inconsistencies, as a child might try to remove peas from goulash. However, even if a child despises peas, it does not make the goulash itself poisonous. Analysis of a defamation claim like this is like reasoning with the child who complains that because there are peas in the goulash, the goulash itself is inedible.

The goulash here is savory, even if the plaintiffs would prefer not to eat the peas.

Ohio Provides Better Protection than the First Amendment

While this is the national standard, Ohio law provides for more protection than the First Amendment demands. Under Ohio law, “the plaintiff must demonstrate, with convincing clarity, that the defendant published the defamatory statement either with actual knowledge that the statement was false, or with reckless disregard as to whether it was false.”

Failure to Demonstrate Irreparable Harm

Plaintiffs claim that “[i]t is clear that Ellora’s will suffer irreparable injury if Defendants are allowed to continue to publish the Blog Publication on the internet.” Motion for Preliminary Injunction at 4. However, Plaintiffs provide nothing to support this. Irreparable harm requires a showing that there is an insufficient remedy at law. Furthermore, for the harm to be irreparable, there must be more than monetary damages. “The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.” Sampson v. Murray, 415 U.S. 61, 88 (1974). “A finding of irreparable harm is necessary before granting a preliminary injunction.” Bettcher Indus. v. Bunzl USA, Inc., 692 F.Supp.2d 805, 822 (N.D.Ohio 2010).

This is news to me (remember, I’m not a lawyer), but it’s fascinating. I’m guessing this has to do with one being a remedy at law and the other a remedy in equity.

So I looked it up on Wikipedia, and lo, apparently so. I’m a little rusty on this stuff, but at least I have good instincts.

In short: law remedies are things like monetary damages and equity remedies are things like injunctions or specific performance. “Inadequacy of legal remedies” in the quote above means that there isn’t money that can make up for the damage that’s caused.

In the Bluemile case cited below (which Randazza goes into more than I’ve quoted here), one company was impersonating another. There’s no way the impersonator throwing money at the trademark holder is going to make up for the damage that’s done. Therefore, it’s irreparable (in the “can’t be fixed with $” sense).

But EC presumably can monitor things like sales and royalties and know what’s going on with them at every moment. Even if they don’t monitor these things this closely, in theory they can. So, presumably, they can say, “well, this article cost $X in lost sales.” And then, if defamation were proved to be the cause of those lost sales (which is not easy), then there’s a remedy at law, so no remedy at equity is needed.

Now, if there were irreparable harm, that would need to be listed in the memorandum of law along with case law to support that. I have some ideas about what those kinds of things might include for EC, but it’s not my job to aid EC’s prosecution of its case—and a preliminary injunction wouldn’t help in any case.

The Section Every Author Should Read

pp. 16-18 where it talks about the public interest aspects of Dear Author’s blog, as well as the link to Author’s Rights When a Publisher Files Bankruptcy.

The Bluemile Cite

My first reaction when I read this case was an audible, “What the fuck?!?”

When I wrote up my own response, I wrote:

In my opinion (though, again, IANAL and TINLA), there is no similarity, and the “strikingly similar” made me wonder what quality pharmaceuticals the esteemed esquire had access to. In Bluemile, there was a clear intent to confuse the trademark held by the plaintiff and siphon off their potential customers by the defendant with a confusing domain name (bluemile.net). The defendant’s site was intended to be confusing.

Clearly, when someone’s trying to siphon off your business by confusing your potential customers, monetary damages aren’t enough.

Randazza covers this more deeply:

While Plaintiffs cite to Bluemile Inc. v. Yourcolo, LLC, in support of their Motion for Preliminary Injunction, the facts of that case are starkly different of the facts at hand. The only connection seems to be that a Preliminary Injunction was granted there and Plaintiffs are requesting one here.

Rick and I both laughed at that.

In Bluemile, the Southern District of Ohio confronted an intellectual property case and enjoined the defendant’s use of the plaintiff’s trademark, enjoined defendants from using a website confusingly similar to plaintiff’s name, which then used that website to publish statements that were already determined to be defamatory. That case was premised on Lanham Act violations and trademark infringement, and the defamatory statements were merely an accessory to the Lanham Act violations. Trademark violations are more readily granted injunctive relief because the irreparable harm is presumed in such cases. Too, Inc. v. TJX Cos., 229 F.Supp.2d 825, 838 (S.D.Ohio 2002), Taubman Co. v. Webfeats, 319 F.3d 770, 778 (6th Cir. 2003).

Wait for it….

This is precisely the opposite of the law surrounding defamation.

Did you feel that slam dunk? I did. He goes on for another page and a half, too.

Standing

I remember studying jurisdiction until I was blue in the face, realizing I’d only begun to scratch the surface, but even I knew that the case had a problem with it.

Some of the comments Plaintiffs complain of specifically address Ms. Engler, who is not a party to this case. While Ms.[Litte’s] statements regarding Ms. Engler are not defamatory, they are also irrelevant unless and until Plaintiffs bring Ms. Engler into this litigation as a plaintiff. Plaintiffs lack the requisite standing to complain on behalf of Ms. Engler. “Elements of standing are an indispensable part of a plaintiff’s case.” Bourke v. Carnahan, 163 Ohio App.3d 818 (10th Dist. 2005). The onus is on Plaintiffs to demonstrate that they have suffered an injury, which is causally related to the defendants’ actions. Id. Plaintiffs are not entitled to recovery for statements made about individuals other than themselves. Statements about Ms. Engler’s personal life are not statements about Ellora’s Cave, and therefore, Plaintiffs lack the standing to sue over those statements.

Then, at the end of that section, Randazza adds:

If Ms. Engler wishes to join this case as a plaintiff, then the statements can be at issue. But, she is not here today, and she should not be permitted to litigate by proxy.

Bond, But Not James

Lastly, Plaintiffs have failed to offer up a bond, in violation of Fed. R. Civ. P. 65(C) and Ohio R. Civ. P. 65(C). Rule 65(C) requires the plaintiff post a bond, in order to ensure that damages may be accounted for, in the event the court later determines that the injunction was wrongly issued.

Per Randazza, it’d need to be a bond of at least $150,000.

Popcorn Good

I think the Internet is getting good popcorn value, here.

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

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Jane Litte’s attorney, Marc Randazza (aka “First Amendment Badass”) has removed the case to federal court in the Northern District of Ohio. The federal case number is 5:14-cv-02331-JRA.

Additionally, DA has subpoenaed Google about the identity of a specific gmail account. Those were filed with the state court on 10/17.

Because federal court proceedings are almost entirely hidden behind a paywall (except for certain rulings), here’s the Amount in Controversy section from Randazza’s filing. Note that I’ve substituted Litte’s pseudonym for her legal name in the footnote.

I found the note about Ohio not permitting damages to be stated to be quite interesting. I hadn’t known that.

Amount in Controversy

The amount in controversy in this action exceeds $75,000.00. The Plaintiff only seeks a rote “in excess of $25,000” amount, and not a sum certain. Where the plaintiff has not plead any sum certain, in order to remove the case from state court to federal court, the defendant must demonstrate only that it is more likely than not that the amount in controversy is in excess of $75,000. Gafford v. Gen. Elec. Co., 997 F.2d 150, 158 (6th Cir.1993).

The Plaintiffs’ prayer for $25,000 is not the result of any omission on their part. Pursuant to the Ohio Rules of Civil Procedure, if the party seeks more than $25,000.00 in damages, the plaintiff may not specify this in the demand for judgment. Ohio R. Civ. P. 8(A). Therefore, while the complaint only states “in excess of $25,000” on its face, it is clear that the amount in controversy is in excess of $75,000.

Each plaintiff alleges entitlement to money damages and injunctive relief against each defendant, “in excess of $25,000.00.” This would seem to create an amount in controversy of “in excess of $100,000.” However, even under other possible calculations, the amount in controversy exceeds $75,000.

Communication with counsel for Plaintiffs has confirmed that Plaintiffs also believe that the amount in controversy is in excess of $75,000.00, making statements that the amount of damages Plaintiffs will be seeking is quite large and growing. In fact, if Plaintiff were awarded a mere $25,001 (in excess of $25,000) as compensatory damages and twice that amount, or $50,002, as punitive damages, the total damages would be $75,003. The jurisdictional amount in controversy analysis must take into account the availability of punitive damages “unless it is apparent to a legal certainty that such cannot be recovered.” Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401, 408 (6th Cir. 2007) (quoting Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 572 (6th Cir. 2001)).

To determine whether the amount in controversy may be satisfied by the availability of punitive damages, the Court may consider verdicts and settlements in similar cases. See Leys v. Lowe’s Home Ctrs., Inc., No. 1:08-cv-1084, 2009 U.S. Dist. LEXIS 16097, 2009 WL 514291, at *4 (W.D. Mich. March 2, 2009). In Lake County, a jury awarded $750,000 in a similar defamation claim. Blatnik v. Dennison, 148 Ohio App. 3d 494 (Ohio Ct. App. 2002). More recently, in the Southern District of Ohio, a jury awarded $100,000. Young v. Gannett, Case No. 1:10-cv-00483. In another case involving the reputation of a schoolteacher and cheerleader, which must be worth less than the reputation of a large company like Ellora’s Cave, the jury awarded $338,000 in compensatory and punitive damages. Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398 (6th Cir. 2014) (Overturning jury award due to immunity under 47 U.S.C. § 230).

Not only do similar jury awards support the amount in controversy, but the Complaint and affidavit of Patricia Marks both make it clear that the plaintiffs value this case in excess of $75,000. The complaint alleges that there has been a loss of goodwill and reputational damage to the plaintiffs (Complaint at ¶30) and seeks punitive damages and attorneys’ fees. (Complaint at ¶31, 39, Demand). Further, the Complaint and Motion for a Temporary Restraining Order articulate that the Plaintiffs find the damages to be “irreparable” and apparently of such value that they are “impossible to quantify.” Meanwhile, seeking a TRO against speech must indicate that this is, at least, as important to the Plaintiff as a mere $75,000.

The Plaintiffs quest for injunctive relief and punitive damages are properly included in determining the amount in controversy. See In re Ford Motor Co. Crown Victoria Police Interceptor Prods. Liab. Litig., 2004 U.S. Dist. LEXIS 29971, 2004 WL 1170145 (N.D. Ohio May 19, 2004); Everett v. Verizon Wireless, Inc., 460 F.3d 818, 829 (6th Cir. 2006) (“The costs of complying with an injunction, whether sought by one plaintiff or many plaintiffs, may establish the amount in controversy”). In this case, the Defendants will attest that complying with the requested injunctive relief would cost them in excess of $75,000. The requested injunctive relief seeks to enjoin the Defendants from publishing anything about the Plaintiffs in any way, and requires that the Defendants violate their promise of confidentiality to their sources. In the event that either injunctive relief were granted, the Defendants would suffer at least $75,000 in losses, and would in fact, likely need to consider going out of business altogether. If a journalist can not protect her sources,1 and if a journalist can be enjoined from writing about one of her primary subjects, then the journalists is surely damaged at least to the tune of $75,000 in either event.

Footnote in above paragraph. Note: I’ve substituted Jane Litte’s pseudonym for her real name.

1 Ms. Litte’s right to protect her sources is of such value in this state that the legislature has chosen to ennoble it by protecting it by statute. O.R.S. § 2739.12. Litte’s home jurisdiction offers the same protection under Iowa’s common law. See Winegard v. Oxberger, 258 N.W.2d 847, 850, (Iowa 1977) (recognizing the “reporter’s privilege); Waterloo/Cedar Falls Courier v. Hawkeye Cmty. College, 646 N.W.2d 97, 102 (Iowa 2002) (“The privilege protects confidential sources, unpublished information, and reporter’s notes”). The evisceration of such a sacred right should most definitely be given a value in excess of $75,000.

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

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