It’s a very rainy day in Silicon Valley as we’ve got the worst storm in five years.
Every writer has their tells: the words they misspell or misuse. The words they use in preference to other words.
The other day, I got an anonymous tip: Both @pubnt on Twitter and Tina Engler/Jaid Black have one of the same tells.
It did stick out to me when @Pubnt used it, but I’m not familiar enough with Tina’s writing style to have noticed the similarity.
@ShelbieKnight @jaidblack This is an author you don't want to keep. Tweeting nonsense about 3 month Lightening fast editing.#notchilled
— Pub Net (@pubnt) November 9, 2014
3 months be fore editing is lightening fast in publishing! Most publishers are booked 18+ months in advance. #notchilled @ShelbieKnight
— Pub Net (@pubnt) November 8, 2014
Tina Engler uses it in this Amazon review, and here’s the excerpt:
“This author is an absolute master at invoking emotions. If she wants you to feel freaked out, she knows how to use a lightening storm and a few choice words to do it.”
And Tia Isabella, a pseudonym of Jaid Black, which is in turn a pseudonym of Tina Engler, uses it in this EC title:
Thomas watched his cousin bolt down the steps at lightening speed.
And the commenter below also said:
From the Trek Mi Q’an books:
“She leapt on all fours in a lightening-fast movement,”
“Death proved to have lightening-fast reflexes”
My anon tipster did mention this use, but that’s not lightning, the electrical phenomena, but lightening, the gerund form of lighten.
Pubnt’s Backstory
In the early stages, @pubnt went around tweeting publishers to tell them not to work with authors who were “participating” in a lawsuit against Ellora’s Cave.
. @HarperCollins ETA: These are the author PARTICIPATING in a lawsuit against a publisher. Never touch them. #notchilled
— Pub Net (@pubnt) October 5, 2014
. @HachetteUS ETA: These are the author PARTICIPATING in a lawsuit against a publisher. Never touch them. #notchilled
— Pub Net (@pubnt) October 5, 2014
Except “participating” was a gross exaggeration. Later, @pubnt clarified with this tweet:
.@panmacmillan ETA: http://t.co/f0SyPL5RFZ
— Pub Net (@pubnt) October 5, 2014
But this list is of romance authors published by Ellora’s Cave, most of whom never spoke out about Ellora’s Cave. They were simply EC authors who also had non-EC titles.
Pubnt also regularly uses Jane Litte’s real name. In court docs, that’s fine, but many of us have deliberately used the internet pseudonym in our blog posts.
Pubnt also has publicly declared that checks are being paid to people except those “involved” in the lawsuit.
@tejasjulia @AuthorSJDRUM @JulieNaughton Nothing stopped. Checks are coming to all but those involved in the lawsuit, naturally. #notchilled
— Pub Net (@pubnt) December 12, 2014
However, “involved” in Pubnt logic doesn’t just mean “is a party to.” “Involved” also would mean, say, anyone who tweeted or blogged or said anything critical about EC.
Catch Is, There Are Laws
18 USC § 1512, for example.
Federal law, along with most state laws, take the reasonable view that if there are threats or harassment of people who testify or provide evidence, then cases won’t be able to proceed.
Tina Was (Probably) Also Barred from Certain Activities
From September 30 to the federal court removal on October 20, Tina as part owner of EC was likely subject to the joint motion’s agreement about not publicly commenting on the case:
In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.
I note Jaid Black posted this the same day @Pubnt started tweeting. (tl;dr version: McCarthyism, freedom of speech, calling out commenters claiming EC owes them money (some screencaps from comments on this blog), and claiming EC authors are too afraid to speak.)
::cough::
Rick came up with a name for Pubnt today that I rather like: TinaNut.
Eh…that was the wrong Tia Isabella (another Engler pen name) book. This is the one:
“Thomas watched his cousin bolt down the steps at lightening speed”
http://www.slideshare.net/Imogen916/jaid-black-scottish-highlands-01-after-the-storm
From the Trek Mi Q’an books:
“She leapt on all fours in a lightening-fast movement,”
“Death proved to have lightening-fast reflexes”
Oops! Thanks for the catch. I’ll update the post.
Gee….it sounds like Tina and the Pub Nut could have used a good editor.
Snerch!
Irrespective of who @Pubnt is, he/she holds some (convenient?) mistaken notions about how the law works.
@Pubnt tweeted today (among several similar posts:
Basic charity requires treating this and similar recent Pub Net statements as a sincere if bizarre [mis]understanding. Let’s talk about the scenario in question. (Example scenario will involve a generic civil suit by a generic Publisher against a generic Reviewer.)
During an ongoing defamation lawsuit by Publisher against Reviewer, some of Publisher’s business associates lodge depositions in that case. Both before and after start of litigation, various of the business associates who testified, as well as a number who didn’t, post public claims that monies owed to them by Publisher have been and continue to be greatly overdue.
A pseudonymous Twitter account, which has commented extensively on the lawsuit but claims to be an outside party, says Well, of course they’re not getting their payments yet: They’re involved in the lawsuit.
Um, no. Monies owed to the business associates are a matter of contractual relations that are not in any sense whatsoever part of the defamation case, let alone being claims suspended by order of the judge, pending the court’s judgement. If there were claims suspended by court order, one would be able to cite, y’know, a court order to that effect.
Failing to pay parties because you dislike the testimony they gave in a court case, or because you dislike something they wrote online while staying completely away from all court cases, does have a name of its own: We call it a tort, a civil wrong – in this case, breach of contract. Publisher utterly lacks the privilege of saying ‘I don’t have to pay, until the defamation case is over, any moneys I owe to people who’ve given support to the other side.’ The court will in no way shield Publisher, and will be perfectly fine with accepting new and separate lawsuits by the people Publisher has been screwing over by wrongfully withholding funds.
That’s entirely aside from the criminal provisions Deirdre mentioned.
And once again, I am so far under the radar, I’ve begun to suspect I could use their freakin cover art on a republished EC book and escape notice. I have spoken out several times, made it clear up front that I was publishing elsewhere in addition to Ellora, and I don’t even get mentioned on the list. They aren’t the first press I walked away from. They won’t be the last.
Ah well.
This is like watching a great slow motion trainwreck.
I keep seeing Jane Litte as Trinity, hanging in the air momentarily in the opening of The Matrix.
And Marc Randazza is Neo. “I know kung fu.”
Like I commented on Twitter, the lil’ peanut had an agenda and that agenda can probably be seen from outer space. Time and time again it slips up and claims to have information that could only come from a principal closely associated to the plaintiff. When called on it the cashew throws out its usual word salad and deflects.
I have stopped responding directly to the foolish filbert because it’s grossly unfair to engage in a battle of wits with someone who is completely unarmed. I will say that the stupidity shines through in their every utterance. In this day and age it takes real talent to be that totally misinformed about pretty much everything.
I completely agree with you, and my only reason for taunting earlier was to see if I could get a tweet today with some linguistic gold mine.
i am not that familiar with Jaid Black’s work. Definitely not her linguistic tells. I tried one her books in the very beginning of my Ellora’s Cave discoveries. I found it to be of rather amateurish and the content pushed the envelope in regards to taste right up to the limits of my comfort zone. I have long thought that she was somewhat (and perhaps unconsciously) resentful of some of her more successful writers. I only began following her blog posts and Twitter when it became apparent that something was seriously wrong going in the Cave. Those were often highly unprofessional and shone a light into where EC’s leadership problems originated. There is definitely some similarity in speech pattern and word choice when compared with the lil’ peanut. However, the unique structure of the 140 character limitation of Twitter make comparisons tricky. Probably wouldn’t be enough to conclusively identify but it would be highly interesting to see what an IP trace turned up if the court could be moved to issue a forensic examination in light of the harassing emails to certain people’s place of employment.
Indeed. I’m not sure whether this case will last long enough to go there—or not.
Gee, it’s nice to know I haven’t been getting paid because I spoke out against EC. My literary attorney will probably be able to do something very creative with that!
Well, others who haven’t spoken out say they haven’t been paid either. Some people say their last check was in Late Sep/early Oct for May, some got a check in Oct/Nov for June, but I haven’t heard anyone who’s received a check for July yet.
Edit: that’s for author royalties. So far as I know, editors and cover artists who hadn’t been paid remain unpaid.
I had wondered if her voice was leaking through, but I too have never read one of JB’s books(I’m very picky, and since I’ve started writing… have only gotten pickier!). Excellent points!
About the strange access to information? It is astounding to me that the Nut can slap down weird information and then in earlier tweets claimed to not know who Patty Marks was. There was a tweet about ‘someone called Patty Marks’ asking her to stop being so antagonistic. Seriously, I know very little about the Cave (or did before this even though I have friends who wrote for EC and were very unhappy with the way things were going there), and even I knew who Patty Marks was after reading the very first article.
I’m also annoyed by all the bashing of Self-Pubbers the Nut does. What exactly was Tina’s publishing experience before she established Ellora’s Cave? Because the first couple years of a new ePub? Unless you came from an established house, on par with brand new SPers.
I also don’t respond directly to the Nut. I do talk above it, but then I sit back and watch the hysterics.
It’s interesting that you mention self-pubbing and the nut’s weird anger at writers who self-publish. Tina/Jaid has displayed the same kind of antagonistic attitude in her posts. Of course, that’s circumstantial at best, but still…interesting.
Yes, as well as TinaNut’s weird fascination with being on the RWA approved list.
Who knows how long that approval will last. When Harlequin briefly the plan to add a vanity press subsidiary, RWA organized fast and took them off the approved list… and that vanity press idea went away and back onto the approved list HQN went.
When the dust settles, if it isn’t shaking out in a way that is fair to RWA members, I do expect that RWA will take a stand in some form or fashion. I read that article in this month’s RWR like a shot over the bow. (Disclaimer: I’m a member, that’s it. I don’t represent RWA, just stating opinion and whatnot!)
This is especially weird since there IS no RWA approved list any longer.
(Posting as a member in good standing.)
Ahh, well there is that! I didn’t realize, but good to know 🙂
(I should probably read the magazines/newsletters more closely…or consistently.)
I was always more tuned to the SFWA lists rather than RWA’s.
Huh. Fascinating. And this approval was no doubt something Tina would have cared about, but something a random onlooker, as Pubnt sometimes claims to be, would not.
There is a weird amount of anger there, I think. I’m published with Harlequin, but that isn’t going to stop me from self-publishing when I have a plan established for it. You can do both things at the same time! Besides, if EC isn’t doing anything but copyediting anymore… what does she expect to happen? People will just not publish anything that doesn’t go through EC? The logic is like a Gordian knot.
There are a lot of traditionally-published authors who have weird anger against self-publishers, so I didn’t really think anything of it when Pubnt dissed me. But Tina holds the same anger toward self-publishers. In my case, one of my stories is a republication of a short that was published by a pro market (since they had limited exclusivity), and it was republished by another market, and my self-publication is the third. The other, well, that’s the initial publication.
I was taught that when you are trying to deal with an angry person, look to see why they are angry – because quite often it’s a response to fear.
Note, I am not a writer or author, I have no financial interest in this situation in any way, I’m just an interested bystander. (Who firmly believes in freedom of speech!)
If I look at the angry actions and statements made by Tina and the Pub Nut from the perspective of fear…then I understand them better. (I don’t agree with them, and they are not helping, but I can see why fear might drive an otherwise intelligent person to respond with anger.)
By all reports, EC is having some market issues — look at what they have said about Amazon sales. Staff are leaving or being laid off. EC is no longer the only easy place for its target audiences to go, there are other publishers and sources…
So perhaps someone is…concerned?…about their future. Let’s pretend to be them for a bit. “Nothing is going right! People will think bad things about us! We might lose business (never mind that we already are.) FEAR! But we can’t admit fear, even to ourself. So, we’ll use anger. Who can we be angry with? It’s the fault of that blogger! ” (Defuse the fear with both anger and finding a scapegoat.)
Let’s pretend some more. ” Who else can we be angry with? (Who or what else are we afraid of?) We need authors to keep signing with us so we have income! Or Bad Things will happen! It’s all the fault of those people who self-publish instead of coming to us! Let’s be angry at them, too!”
Heck, just look at what the Pub Nut called itself – “Scouts for Publisher Protection”. Think there might be some fear behind that line?
Tina’s got everything on the line.
The thing is, when it comes to business decisions, people look at reputation far less than TinaNut is suggesting.
A bad reputation will make some jobs more difficult to get, but not all of them. After all, we’re all people with quirks, and some people can tolerate certain quirks better than others can.
As every romance writer should know, a quirk that’s a liability in one context can be an asset in another….
What’s so hilarious (and sad) about the self-publishing thing is that that’s exactly how Ellora’s Cave started.
For those not following along with #notchilled on Twitter, here’s a quote:
The tenor of the Nut’s tweets echoes TE/JB perfectly. Too perfectly.
Even people who agree with each other completely, tend to express themselves individually slightly differently, even if only one of them is doing any actual thinking.
The fact that there is no difference in (so-called) reasoning between the two…
You’ve been watching Tina longer than I have, so I trust your judgment on that.
Unrelated question, sort of:
The Nut keeps saying that payments are being withheld on people whom they can recover damages from later… Can ‘damages’ even BE recovered from someone not named in a lawsuit? Or is it what we were saying that statement is thinly veiled threat for further lawsuits to come?
Kinda sorta. A judge can certainly rule for sanctions for any witness who gives false or misleading testimony or who refuses to testify when ordered. They don’t have to be a party to the suit per se, but they do have to be part of the action somehow.
However, many judges are disinclined to offer sanctions for all but the most egregious violations, so it’s not something a plaintiff could count on.
What’s really annoying about TinaNut is the insistence that all sorts of people are “involved” who are not. Judges and lawsuits have narrow scope by design. While a judge can join a party to an action, there are still limits to that. (I think it’s possible for the judge to join Tina in this, but I haven’t read deeply into the case law lately and I no longer have free access for that, so haven’t searched deeply.)
So those who provided documentation for Jane/DA could possibly(though maybe not likely) be joined but all these other EC authors/former employees who are not in any way attached to the motions … pretty inconceivable.
Thank you. I tried to search Google but my legalese skills are pretty much nil!
(And for the record, not all publishers are buttheads about their authors self-publishing. My Harlequin editors have never been anything but supportive when I’ve spoken about a future self-pub project. They want me to hit a home run in any fashion, a rising tide lifts all boats and all that.:)
They can’t really be joined unless they’re a necessary party. Very unlikely.
There’s a long and interesting ruling about parties, joinders (of parties), fraudulent joinders, and removal here, but not all the case law it relies on is relevant to EC’s case (different circuit with different rules).
Amalie Berlin wrote:
Just to elaborate on what Deirdre wrote: People who need to be parties to the litigation might be joined to it by the court. Parties means people who are logically necessary to the lawsuit as either plaintiffs or as defendants. Thus, for example, the lawsuit asserts that Tina Engler had been libelled by assertions in the Dear Author piece about her acquisition of real property in California, but she was not listed as a plaintiff. Defence counsel, in one of his filings, objected to that plaintiff claim on grounds that plaintiffs had failed to join an indispensable party to the complaint. That is, Ellora’s Cave cannot sue Dear Author and Jennifer Gerrish-Lampe for defaming Tina Engler, because Ellora’s Cave is not Tina Engler: Only Tina Engler can sue someone for allegedly defaming Tina Engler. The court thus could remedy this defect by ordering that Engler be joined to the lawsuit as an additional plaintiff.
The same logic doesn’t apply in any obvious fashion to parties who merely testified. Nothing about them testifying makes them parties essential to the lawsuit. Thus, absent some (wildly unlikely) reason suddenly getting produced as to why those witnesses are essential plaintiffs or essential defendants without whom the existing lawsuit is logically incomplete, they aren’t going to be ‘joined’ to it. Period.
Deirdre wrote: ‘Kinda sorta. A judge can certainly rule for sanctions for any witness who gives false or misleading testimony or who refuses to testify when ordered.’ In such a case, the witness would be ordered to pay such sanctions to the court, not to any of the proceeding’s parties.
I, also, noticed that element of TinaNut’s fantasy model of how the law works. Here’s an example exchange:
@tejasjulia said: ‘Nope. You’re in breach of contract if you don’t pay your people. Period. You don’t get to pick and choose.’ TinaNut replied: ‘Not if the other party has caused recoverable damages deductible from the payments.’
The scary part is, I honestly do believe the Nut truly believes that. It’s not a ruse; the Nut really is that deluded about what the defamation court case covers, I think. She appears to believe that the court case is a grand omnibus jamboree in which all theoretical financial claims of all sorts by all parties who’ve testified in or expressed opinions about the case, notably roping in many parties who’ve neither sued nor been sued, will all be netted out against each other and settled — with the consequence that all debts are suspended until that happens. Which is completely, pardon the phrase… nuts, but rather convenient if your publishing empire’s in danger of implosion.
And this is why I have, from the get go, been convinced that the Nut is Tina Engler. She constructs fantasy worlds and then is shocked silly when the real world doesn’t work that way. See the end of the Brashear case.
You would think that after being involved with a number of other lawsuits that ended badly for EC that the principals would have SOME concept of how the civil court system worked but this latest lawsuit is a shining example that you can’t teach certain people anything, either through education or experience. It’s like TE/JB has created a shining fantasyland where she gets to make all the rules and even those rules are mallible based on her whims.
I, like many people suspected that the lil’ peanut was someone close to Tina but not necessarily Tina herself. I couldn’t believe that she would so brazenly violate the agreement that she requested. However, the more gibberish spouted by the walnut and how quickly they respond to any comment or statement on Twitter the more I am inclined to consider that possibility that it is Tina or someone acting on her behalf. If it is Tina than she is doing an incredibly foolish thing and providing the defense with a mountain of ammunition. How anyone can possibly think you can recover damages from people not named or joined in a lawsuit just floors me. Or that you don’t have to pay people what they are contractually owed because you are suing someone for saying that you are negligient in paying people what they are contractually owed. That is truly magical thinking.
Julaine wrote:
‘I, like many people suspected that the lil’ peanut was someone close to Tina but not necessarily Tina herself.’
As of a few days ago, I’ve seen enough to say the author’s Tina (or a spookily uncanny imitation, I suppose). Deirdre and I are both incorrigible bookworms, and both in our separate ways editors. (I have quite a bit of experience line-editing, i.e., I’m a working pedant.) Along the way, we’ve both become really sensitive to, and appreciative of, authorial ‘voice’. Some authors have markedly more distinctive ‘voices’ than others, but differences become discernible to some degree over time. E.g., when I read Presumed Innocent in the 1980s, I came for the bravura gimmick of a close-first-person murder mystery narrative where you still had no idea whether the protagonist did it, but stayed for the amazing texture of Turow’s prose – and I think, rightly or wrongly, that I could spot a Turow paragraph at 20 paces.
Picking up authorial ‘voice’ from 140-character microblogging is more iffy, but on the other hand Tina has some very distinctive tics, and I’ve seen enough of those to declare @Pubnt to be ‘TinaNut’.
If it’s just an incredibly uncanny similarity of style, authorial ‘voice’, and verbal tics, so be it. Fortunately, calling the Nut ‘TinaNut’ isn’t defamatory (even if untrue), no matter what colour one’s sky is. ;->
I’m still attempting to reality-check my understanding of TinaNut’s tweets, because (in a spirit of charity), I assume she honestly means what she is saying, and fear that I might be missing something. There was a new pair of tweets that might be useful towards the interpretation effort. Stitching the pair together:
‘[T]he claim filed says it is FALSE when it was started; and it is FALSE now. The few owed owe back damages. It also not caselaw, stupid. it is BASIC COMMON SENSE. Money they owe is recoverable from the money you owe them.’
(This was a reply to @ataglanceRMC’s challenging the Nut to cite caselaw for her creative theory on debt offsets.)
Attempting to unpack that: 1. TinaNut’s phrase ‘the few owed’ appears to refer to a ‘set of authors’ alluded to in the Dear Author article (who were said to have not been paid in six months). 2. TinaNut now alleges that said authors ‘owe back damages’ aka ‘recoverable damages’ as a consequence of either testimony in the current lawsuit or tweeting. 3. TinaNut alleges that Ellora’s Cave is entitled to deduct such ‘back damages’/’recoverable damages’ from monies already owed to those authors by contract.
Just to be really clear, there is no litigation against those authors, let alone a civil litigation victory over them and award of damages against them. TinaNut is imagining a hypothetical second lawsuit against those authors on some (unspecified) tort theory, imagining that the second lawsuit has been won, and imagining that Ellora’s Cave had been granted the right to collect damages from the authors. Then, having indulged that feat of imagination, she also imagines that a (theoretical, imaginary) right to collect damages entitles the creditor to simply offset that account receivable against completely separate, unrelated accounts payable to those authors owed to them under contract.
All of this without the troublesome formality of, y’know, actually suing, actually winning, actually getting a judgement to collect damages, and actually acquiring the novel legal right to net-out that debt against a pre-existing, unrelated payable.
Nice if you can manage that. I wonder which (doubtless fascinating) universe that’s true in.
Links for that pair of tweets:
http://twitter.com/pubnt/status/544015363001044992
http://twitter.com/pubnt/status/544015774869127168
Thanks for breaking this down into component parts, helped me link my own ‘common sense’ opinion to actual legal-style thinking!
You’re extremely welcome. And just because I’m still chewing over recent Nut tweets, and marvelling at the odd bits: Saturday’s real prize-winner in the reality-impairment sweepstakes was this one:
Both halves are gloriously defective, in different ways. The first sentence is actually the greater error – and actually has stark beauty in the purity of its wrongness – even though all but one subsequent #notchilled tweets ignored it and dissected the second one. Sentence #1 denies harassment of those giving testimony in a Federal court case would violate 18 USC § 1512 if ‘they caused damages by defamation’, which is very simply a textbook example of a non-sequitur conclusion.
The part everyone jumped on is the bit about plaintiffs asking for ‘commenters’ and tweeters’ identities’: Part one and most obviously, plaintiffs never said Word Uno to the judge about anyone’s tweets. Part two – and I honestly think TinaNut’s just now realising the truth of this – the initial court complaint didn’t actually ask the judge for commentators’ real names either. She just thought it did.
The reason she thought that, and the reason it’s not so, is the interesting part.
To review, on Oct. 20th, EC and Jasime-Jade Enterprises, co-plaintiffs, filed a complaint and request for preliminary injunction with an Ohio state court, opening the lawsuit against Dear Author and Jennifer Gerrish-Lampe. Any such filing follows a required format, identifying the parties, reciting facts being alleged, and stating the ‘claims’ and ‘demands’ (what plaintiffs are asking the court to do and why). In this case, the demands amount to: legally gagging Dear Author in the form of a permanent injunction imposing prior restraint against all publication of ‘libellous content’ against Ellora’s Cave, a permanent injunction against continuing to host the Curious Case of Ellora’s Cave article, damages of US $25k plus interest, and any other ‘relief deemed appropriate’, such as the cost of attorney’s fees.
It’s important to note that that’s the sum total of what plaintiffs have requested in this lawsuit. That’s exactly and solely the requests in front of the judge; just those four things and nothing more.
The body of that complaint is then followed by the full text of the Curious Case article (thereby hilariously putting permanently into the public record the same article the suit is demanding to suppress), a one-page Motion for Temporary Restraining Order, and finally a seven-page Memorandum / Statement of Facts, said to be ‘in support of’ the motions cited above.
The court is going to read the Memorandum as a memorandum – a recitation of claimed facts. That’s what it says on the tin. Requests to the court need to go into the ‘claims’ and ‘demands’ portion of the pleading, otherwise the court is going to disregard them. This pleading is very clear on what is being requested – exactly that list of four things, succinctly stated, and no more.
So, what is one to think of a horrendously misplaced ‘request’ tacked onto the bottom of an accompanying memorandum that explicitly says it’s merely reciting alleged facts in support of the motions in the main body of the pleading?
As I said at the time this first came up, I’m not a lawyer, so take this with whatever grains of salt seem suitable, but my clear understanding is that putting a ‘request’ in such a non-functional place in a court pleading creates what Deirdre called (in computing jargon) a No-Op, a bit of text that has no effect, that is completely inert.
It might be interesting to speculate how this happens in what, for my own legal safety, I will call a hypothetical case of No-Op language: One might imagine a lawyerly blunder. One might even imagine a sneaky lawyer making a client happy by deliberately inserting a request the client insists on, but that the lawyer knows would never fly in court, in a place the judge will ignore without the client understanding why (thus faking out the client). One might imagine plaintiffs and their attorneys inserting that language solely to intimidate third-party readers (such as pseudonymous blog commenters).
As to why EC and Jasmine-Jade Enterprise’s lawyer inserted this language into this pleading, I’m going to carefully not speculate.
I too noticed a change in the tone of the Nut’s tweets last night after the swell of comments, they got a little less antagonistic though they continue to remain the Twitter-equivalent of plugging your ears and going LA LA LA LA when someone says something you don’t want to hear.
Also have noticed there are occasional(and telling) slips in POV when the Nut gets riled up. Like ‘you are only slush pile HERE’ <–where is here if not EC? There is no twitter slush pile… And the inappropriate use of 'we' littered throughout…
I really do wish that the ruling would come down. All the speculation–while entertaining–is wearing me out! 🙂 (Though, if it waited until Dec 24th, it might be a really good Xmas present for DA. Plus, we could all imagine the judge to be dressed like Santa… except with more gavelling and yelling of loud angry words.)
The POV shifts also helped convince me, yes. Then TinaNut steps back and regroups the official narrative.
Well, that whole slush pile thing is attempts to jab me, which is hilarious.
You and me both on the ruling.
Speaking of TinaNut’s assertions, one of the weirder ones is asserting that Tina is the CEO of EC.
https://twitter.com/pubnt/status/543955339511869440
https://twitter.com/pubnt/status/543227602719088640
https://twitter.com/pubnt/status/543225768340242433
(Random aside: It annoys me that my gravitar works when I post from my tablet, but not from the laptop… Been doing that all over lately.)
I did some very modest legal research on some more of the legalistic language TinaNut’s been using lately. Just to be clear, as a non-lawyer I’m no expert and have zero access to Lexis, etc. I’m just a layman with an ongoing interest in legal issues (who learned enough business law to pass the CPA exam, back in the Pleistocene).
TinaNut’s been saying things like:
Under UK common law, employment contracts are construed as having an implied term requiring ‘mutual trust and confidence’, which in some circumstances can even overrule provisions in explicit employment-contract terms, and applies to both employer and employee. Notable UK cases have involved suits by employees alleging that hostile or dishonest management had carried out ‘constructive termination’, and successfully sued for tort damages on that basis. It’s important to note that the aggrieved party had to specifically litigate this claim. It wasn’t tacked on as a ‘by the way’ to (say) an only somewhat related defamation suit between the employer and some third party.
Australia inherited the ‘mutual trust and confidence’ concept from the UK, until a few years ago when the High Court jettisoned the concept from all subsequent Australian cases.
I find no evidence that the concept exists in USA law at all – with the minor (and irrelevant) semi-exception that insider trading prosecutions often allege that the accused brokers (etc.) failed in fiduciary duties that entail requirements of trust and confidence.
In USA employment law, zip.
The parallel concept in USA employment law seems to be the implied covenant of good faith and fair dealing, which is part of every employment contract because it’s part of every contract, period. Some states with at-will employment legal regimes recognise violation of this implied covenant as a valid grounds on which an employee might be able to prove wrongful termination (despite employment being otherwise at will, in that state).
TinaNut’s… er… reasoning is pretty murky on this whole matter, but here’s my best reconstruction of what she’s alleging: Employees’ contracts with EC include confidentiality clauses, and they’re also bound by implied covenants of good faith and fair dealing (which she mistakenly calls ‘the implied Trust & Confidence term’). If an employee testifies for Dear Author, or tweets allegations supporting Dear Author’s position, during the EC/DA litigation, they are injuring EC’s interests in violation of contract, and are tort-feasors to the extent of the damage they are causing EC. The value of that damage can be decided only at the end of the EC/DA suit. [Insert here some justification for tying these tort damages to payables owed to them for wages and other payables. I got nothing.] So, it’s legitimate to wait until end of the current lawsuit and then offset damages owed by these employees against payables owed to them.
Sometimes, the Nut acknowledges that these alleged tort damages could be established only through separate, unrelated litigation, and other times doesn’t. E.g., she talks about ‘enjoining them’ later in the proceedings or that they will be ‘named at the right time’.
The Nut appears to be confused between allegations that employees who’ve testified or tweeted thereby committed defamation (and per her are to be ‘joined’ to the EC/DA lawsuit later), and allegations that they violated confidentiality or good-faith obligations to their employer, which if she wanted to go for that would be a separate lawsuit.
I thnk, BTW, that the odds of getting a tort judgement against an employee for testifying in a court case are exactly zero, and the likelihood of getting one for tweets saying ‘My employer’s been late paying me’ are pretty close to zero, too.
In addition, TinaNut speaks as if confidentiality and/or good-faith obligations of employees, such as they are, apply equally to non-employee authors having EC publication contracts for their books, which obviously isn’t the case. As an aside, I rather suspect that judges take a very dim view of attempting to bludgeon employees and business associates with confidentiality clauses to punish or intimidate them over testifying in court cases.
Then, too, there’s the troubling bit where TinaNut thinks EC can withhold timely payment of employees (or business partners) just because she thinks EC might speculatively be able to sue them for damages in the future, and expect they’ll somehow acquire the right to remit only the net of those amounts. Sorry, paranoid pistachio, not the way it works.
It seems almost gratuitous to harp on the hapless hazelnut’s meaninglessly vague and loose terms ‘involved in the lawsuit’ and ‘part of the lawsuit’, which lumps together actual parties to the EC/DA suit, people who’ve testified, and even apparently people who’ve merely tweeted about it. To her credit, she does acknowledge this vagueness when called on it.
Does the wandering walnut really believe her legal fantasy? I fear that she does. And the fall will be hard and painful.
Thanks for this, Rick. I was wondering shout the contract stuff to the extent that I even Googled definitions(something I’d given up doing in October).
I am still confused about the use of ‘tort’ in contract dispute stuffs… Google says contracts don’t fall under tort law…(and simple things like this? Where I get lost… Definitely made the right call in staying away from anything legal-adjacent in profession)
Amalie wrote: ‘Google says contracts don’t fall under tort law.’ Er, I think that’s either a mistaken source or a misreading.
Any wrong committed under civil law is a tort (by definition), just as any wrong committed under criminal law is a crime (by definition). That is, if someone does you wrong, potentially one or both of two distinct branches of the law might apply.
The evil-doer might have violated a criminal statute, committing a wrong against society as a whole, in which case he/she has committed a crime. If the DA cares enough and wishes to (in part) stake future reelection on it, the DA can file an indictment (criminal charges) against the evildoer, who, if convicted by a showing of evidence that is convincing past a reasonable doubt, can be ordered to serve time in prison/jail or pay a fine to the State. The decision to prosecute or not is the DA’s, not the victim’s, and the fine goes to society rather than to the victim. The State, not the victim, funds the cost of prosecution.
The evil-doer might have committed a civil wrong, i.e., deprived someone of a right or failed to give a person something to which that person is entitled. If the aggrieved party (victim) cares enough to spend money on lawyers and court fees, he/she can haul the evildoer into court to face a civil lawsuit. If the evildoer loses by a showing of evidence that is convincing past a ‘preponderance of the evidence’, then he/she might be ordered to pay damages (a ‘remedy at law’ to make restitution) or do/not do something (a ‘remedy at equity’ to correct the situation). The decision to sue or not sue is the victim’s, not the State’s (but he/she needs to pay attorney and court fees). Damages awarded, if any, go to the victim (not to the State).
The two types of legal process can be seen in the two OJ Simpson trials. The first was a criminal prosecution, where he was acquitted. Having won that, however, he was then hauled into court for some sort of wrongful death lawsuit by the family of one of the deceased – civil litigation, a dispute between private parties, as opposed to criminal prosecution, a dispute between the accused and society.
The two trials weren’t double jeopardy because the first was criminal and the second civil.
Contracts are inherent’ a civil matter – because they aren’t in the realm of criminal law.
I just can’t with the Foolish Filbert anymore. They live in some kind of Fantasyland where TE/JB makes strange and arbitrary rules and the rest of the world meekly complies. Tina and/or the Nut are in for a rude awakening when the U.S. judicial system gets through grinding them into peanut butter. I am just sorry so many wonderful people are going to suffer because they signed on with this publisher and are stuck with the lunatic brigade as the ship sinks.
Snerch. “grinding them into peanut butter”
The world is give-and-take. Tina’s been in the position where she’s been able to dictate terms for years, but market realities are demonstrating that she doesn’t have the power she used to.
I always thought the fall of queen bees (the archetype, not actual bees) was an amazing thing to watch. I’ve just never seen it from this perspective before.
Deirdre wrote:
“I always thought the fall of queen bees (the archetype, not actual bees) was an amazing thing to watch.’
I’m glad you qualified that (i.e., that you’re referring to metaphorical queen bees), as it turns out that the retirement plan for actual queen bees majorly sucks.
Just as you were posting this, I came across this t-shirt.
Coincidence. I swear.
BTW someone is requesting a link to the list of EC writers with alternative work to promote. I felt I should leave it up to you to post a link but I thought I would point out it is never to late to remind people that this is going to be a long slog and we need to continue our support of those trapped in the Cave’s maelstrom.
It’s always okay to point people to this post: https://deirdre.net/elloras-cave-author-exodus-support-thread/
That’s why I made it. I’ll do another reminder right before Christmas.
Thanks! Haven’t had this much fun with a legal case since PJ retired Groklaw.