Today there’s big news in this year-plus long defamation case: plaintiffs Ellora’s Cave and Defendants Dear Author and Jane Litte have settled.
In an email to EC’s biz loop, Ellora’s Cave CEO Patty Marks said:
From: patty@ellorascave.com [ec_biz]
Date: Thu, Oct 22, 2015 at 9:50 AM
Subject: [ec_biz] Settlement with Dear Author
We are pleased to announce that we have reached a settlement with Dear Author. The terms are confidential, so we will not be discussing that. We are very happy though to now put all of our time and efforts into Ellora’s Cave, the authors and staff without further distraction.
Thank you for your patience and support.
Patty Marks
Defense’s Parting Gift to the Case
Those of you following #notchilled recently will recall discussion of a footnote in case document 71-main (p. 11):
Further,Ellora’s may be planning for bankruptcy even at this time–but have refrained from doing so in the hopes that this SLAPP suit will bear fruit. In fact, Ellora’s counsel has reported to the undersigned on numerous occasions that Ellora’s has failed to pay his bills.
This was a footnote that Randazza had apparently intended to delete, and it led to plaintiffs filing a motion yesterday to strike the footnote, pointing out that this case had received a fair amount of discussion on Twitter’s #notchilled hashtag.
Which led to defense’s response document.:
The real value of the evidence Plaintiffs offer in support of their Motion is that it shows that there is widespread public interest in Ellora’s Cave and thus this controversy, belying any claim that the Plaintiffs are not a public figure as they disingenuously claim.
Boom.
The Identity of @pubnt
In doc 73, plaintiffs also accused defense of waging a social media war:
And while the merits of this case are before this Court to decide, Defendants have resorted to internet and social media outlets to gather support from followers for their position (and to solicit online donors to pay their legal expenses) in what is basically a public relations war against the Plaintiffs’ case.
Let me be clear: Those of us posting on #notchilled are a diverse group who (mostly, since at least two purported Ellora’s Cave employees have posted to #notchilled) agree on one thing: the case against Dear Author and Jane Litte was filed to quell free speech.
In short, we agreed with this Courtney Milan post (excerpt):
But in this country, we want to make sure that people have the right and ability to talk about matters of public concern, to express their opinion on them, and to speak freely without worry that their speech will be chilled. So if you inject yourself into an issue of public concern, you may be a limited purpose public figure–that is, someone for whom the standards differ.
[…]
It seems to me that the business of Ellora’s Cave–a multi-million dollar business, one where the owner has sought and obtained media attention from national news media, a business that deals with hundreds if not thousands of authors, editors, and cover artists, and who has thousands if not hundreds of thousands of readers who take an interest in it–is a matter of public concern. It seems to me that Ellora’s Cave and its owner, Jaid Black, by seeking out that media attention, by broadcasting announcements to its authors–announcements that were reprinted and referenced in publishing news ranging from Publishers Weekly to The Passive Voice–is a limited purpose public figure.
And the standard for defamation actions for limited purpose public figures is substantially different than for private citizens. The standard is that the speaker must be acting with actual malice: that is, they must know (or be reckless about knowing) that the statements they are speaking are false. What that means is that if I say something and I have a good-faith belief that what I am saying is true–even if it later turns out to be false–I am not going to be held liable for defamation.
I point this out because I am extremely, extremely pissed off about this lawsuit. I believe that this lawsuit was filed for the purpose of chilling speech–and for the purpose of chilling true speech about a matter of imminent public concern. And I think that despite the outpourings of support, it’s working. This lawsuit is about teaching authors to sit down and shut up, even if their livelihood is at stake.
Which is a pretty good statement of the unifying principles of the #notchilled regulars. Some are EC authors. Some are former EC authors. Some are readers, but not authors. Some (like Courtney and myself) are writers, but not for Ellora’s Cave.
But we weren’t posting specifically because of who the defendant was, but what the issue was.
Defense’s response in doc 74 (p. 3):
Defendants further note that Plaintiffs offer no evidence that Defendants are waging any sort of a “public relations war against Plaintiffs’ case.” Indeed, there is no evidence to be found. The purpose of this accusation is clear – to try and negatively color the Defense. However, should the Plaintiffs wish for Defendants to address this issue in earnest, the Defendants have preserved publications and statements by Ellora’s Cave’s founder, Tina Engler, about this case, as well as her “sock puppet” twitter account, which would scorch them with hypocrisy—should the court be interested.
The “sock puppet” referred to @pubnt (and possibly others), whose identity will likely never be known as a matter of law, but here’s the complete archive of 2,620 tweets.
What’s Up Next?
There’s still the matter of several hundred Ellora’s Cave authors, quite a few of whom have publicly stated that, as of this writing, they’ve not been paid royalties for periods later than February 2015. I do not know of anyone reporting having received payments for a later period, and February was eight months ago.
Here are a few sources:
@ZenobiaRenquist I got February royalties October 9(Last week) @TymberDalton @deirdresm
— Kelly Jamieson (@KellyJamieson) October 16, 2015
And I just got an EC check for FEBRUARY royalties. That's *definitely* more than 3 months. #notchilled
— Ella Drake (@Lori_Ella) October 11, 2015
@TymberDalton @lynneconnolly someone posted on FB they just received a check from EC DATED February. #notchilled
— Trista Ann Michaels (@trista_michaels) October 15, 2015
Given that Ellora’s Cave still has (as of a few days ago) more than 800 authors, that’s a seriously large quantity of royalty checks to be behind.
Let’s not forget the declaration of Romance Writers of America executive director Allison Kelley:
Based on complaints from authors, we contacted Patty Marks, CEO of Ellora’s Cave, in August 2014 to express concerns that Ellora’s Cave was unilaterally changing the terms of its contracts without authors’ written consent. Ms. Marks responded, “I’ll talk to Raelene and have our publishing department request signed amendments now and from here on out.”
In September 2015, I contacted Patty Marks regarding complaints about the company’s failure to issue royalty statements and checks to authors. Ms. Marks recently admitted to me that Ellora’s Cave is not up-to-date with paying its royalties and has not paid its authors in a timely manner.
Failure to pay authors and comply with the terms of contracts are violations of the Romance Writers of America’s code of ethics for industry professionals.
As a result of Ellora’s Cave’s violations of the code of Ethics, Ellora’s Cave has been suspended from certain privileges with the Romance Writers of America. This means that Ellora’s Cave is prohibited from contacting members of chapters regarding new submissions and may not participate in any Romance Writers of America chapter event until it has paid its authors all amounts due.
I don’t know if that’ll ever happen, but I hope for authors’ sakes that it will.
Until then, I leave you with Lieutenant Commander Ivanova. Not quite as satisfying as having all the answers and full restitution for all authors, but it’s what I have to offer.
Addenda
Tymber Dalton’s post Ellora’s Cave vs Dear Author: Not with a bang, but a whimper. Features this nugget comment by author Ann Jacobs, who attempted to intervene in the Dear Author case:
I believe there’s a good chance there will be a class action filing. My attorney has other authors who’ve expressed interest, and it will be a topic of conversation next week. Meanwhile, I know no more than anyone else, except that my motion to intervene in the DA defense is moot, since the suit has been settled.
They poked the bear, and the results weren’t what they expected. I’m very sad for the EC authors, whose battle remains.
As for Pnut, we all knew the identity. It’s just nice to see it in writing, even if it is a statement that leads to deduction.
As for the ten (dozen) or so new authors with EC, I hope anyone considering will do a little research before they dance with the devil.
I wish they had, though I wonder how many of the “new” authors are instead new pseudonyms of existing loyal authors.
No, the new authors are truly new. I still look in on the yahoo group for EC authors and those who have just signed contracts are excited and eager for their careers to begin. Many are debut authors, thrilled to sell their first books. They do hear the reality on that loop, but usually it’s too late–you can’t join the loop until you’re contracted. I doubt that any of those authors are pseudonyms for current EC authors. New authors can be so happy to sell that they don’t bother to research or simply ignore the warning signs. It’s easy to say “that will never happen to me.”
nods
Boom tomorrow. There’s always a boom tomorrow.
(quoted without watching, because really.)
(quoted without watching, because really.)
But you can never have enough Ivanova perspective.
I’m very glad for Jane and Dear Author that they can put this mess behind them and not have the stress, worry and legal expenses to deal with any more. It couldn’t have been fun to have to get up every day and have to think about EC. She has a big life and a lot of other uses for her time. So congratulations to everyone at Dear Author.
On the other hand, there are still hundreds of writers out there who deserve answers. Many are still owed money or their rights. The focus should now be turned to finding ways to support those who still have questions and avenues for addressing the grievances of those who continue to sit by empty mailboxes.
I am very grateful that before Marc Randazzo shut off the lights and closed the door on this case he gave all of us one final parting gift. That comment about hypocrisy and Tina Engler’s sock puppet Twitter account? That was priceless. Thanks, Marc.
And thank you to Deirdre, who devoted countless hours to keeping us informed about a very vital issue affecting our whole community. Bravo!
Yes, I loved that little parting gift. Makes the painful nature of motions 73-75 hurt less to watch.
Does the “sock puppet” statement out TE as pubnt?
I believe it associates the two, but not quite the same as a full outing in that sense.
I’m remaining anonymous on this post because, as evidenced by the screen shot in yesterday’s filing, EC employees are monitoring what authors are saying online. And to my great misfortune, I still need to regain rights from them on a number of books. I’m happy for DA that this lawsuit has concluded. I’ve learned a lot of lessons from this, and if I ever publish in the traditional route again, I’m going to take a good, hard look at who owns and runs the business.
I had no idea who Tina Engler was until this case happened since she hadn’t been involved in any of the correspondence I received in the years I’d pubbed with EC. Now I know. It’s fitting that when you Google her, the first image that comes up is her flipping the bird. Yes, Tina, you have screwed your authors. Congrats on that. And please, by all means, keep running an “anti-bullying” website that only serves your own agenda against those who have dared to speak up against you, talking about how you’re such a victim, and referring to yourself as “we” a la Pnut.
My last royalty check was back in August and it was for February 2015 royalties. Royalty department emails are entirely ignored. I certainly hope no new authors are signing contracts. Signing with EC was the worst mistake I’ve made in my entire career.
I’m sorry you’re still in a speech-chilling situation. May your rights revert as quickly as possible and may you get all your royalties, too.
Thanks, Deirdre. And also, I wanted to thank you for all the time and hard work you put into keeping us updated with the case. It is much appreciated!
You’re welcome, and thanks for the appreciation. 🙂
Anybody want to start taking bets on how quickly EC files for bankruptcy?
After this debacle, I doubt they have much choice.
Does filing for bankruptcy require opening the books? If so, bankruptcy will never happen unless creditors force them into it.
It requires a creditor matrix that’s publicly filed. So not opening the books so much as being open about the debt.
Which, unless they have leave to use pseudonyms or anonymize the public filing, will be a very ouchy situation of its own.
I know it’s usually more expedient to settle than go to courts. But it just sucks that EC is getting any money out of this (okay, so yes, to me “settle” always means we paid them off).
Doesn’t necessarily mean anything of the sort, though. For all we know (and if this is the way it went down, I actually am just picking a hypothetical), they both agreed to walk away, not pay each other, and cover their own attorney’s fees.
I asked for my books back in August last year because of mismanagement and tanking sales. That was it. As far as I was concerned, it was a business decision. They handled a series of mine very badly, by the intermittent way the books were released, then they released the last two in a rush. I was very proud of that series (still am!) and I’d love to see them back on the shelves.
I had nineteen books with them, and my last check was for just over a hundred dollars. So I got the rights back to the remaining books in return for foregoing the royalties from March 2015 onwards. They have six months to clear any print backlog of the books I finally got back in September, and that’s it.
That’s what’s been going on, and it’s as simple as that. The Dear Author column had nothing to do with my decision, neither did anything that was said in the media. The statements I made to the court were at the request of DA, but I would have said exactly the same had EC asked me to say it instead.
As always, what goes on inside a publishing house, is very different to the way it’s reported. I am clear of any agreement I had with Ellora’s Cave, and now I’m just interested in moving on with my career and facing the challenges that lie ahead.
I’m glad this part is over.
Re: authors not knowing who Tina Engler was…that’s not hard to discover online. I still have a fondness for EC based on some great books they’ve published. Three years ago, they got me into writing M/M erotic romance commercially, because I took one of their editing tests. Failed that miserably, and the sample text was so cliche it made me cringe. But it got me thinking about trying out the genre. I even queried my first novel with them, which also got rejected. (Lucky break for me.)
I decided to look deeper into EC just after that. Found Jaid Black’s numerous incidents of unstable behavior and odd business decisions. I decided that was a place where I probably didn’t fit, and stayed away from it from then on.
I’m not saying all other erotic romance publishers are clean, noble, and efficient…just that it’s better to find out this stuff before querying anyone. I only lucked out since rejection kept me away from 2 dicey publishers (EC and Musa).
Were there even any other noteworthy sock-puppets lousing up #notchilled with enough bullying and vitriol to be noticed by MR?
Or for that matter, were there any other Twitter subpoenas ordered than for @pubnt? I certainly didn’t see any.
I’ve followed #notchilled and posted in some conversations. I am not and never have been an EC reader (romantica is not my cuppa romance reads). I am not an EC author. (I write Christian SF and mostly have edited.) I heard about the issue and wanted to follow it because, specifically, I thought it was a speech queller.
I think the best thing that can come out of it is that all the authors involved with EC think twice and thrice about contracts, complaints, and make informed decisions going forward (with or without EC) and that those who want their rights back and have the contractual position to do so, get them back promptly. I side with authors–not Jane, not EC. I’m pro-author, and as a blogger, pro-freedom of speech.
If it had been incorrect and true defamation, then I would want EC to win. I’m not pro-defamation. I’m pro-truth. And if truth came out of this, then, hurrah.
I hope both parties deal better with truth in future–both Jane (as there was that recent brouhaha/scandal/whatever over her nom-de-plume and FB groups) and EC’s executives.
And, with it settled and those of us keeping an eye on it not knowing the terms, we can only hope that it was a just and fair settlement.
On to books and writing and editing and, we hope, professional conduct in the aftermath. (And that Pubnt never returns.)
Oh, and I forgot to thank you, D, for keeping us on top of progress on this case. Thanks to Courtney, also. It was quite nice to have some smart gals updating us.
This was a lawsuit that never should have been brought in the first place. Because, in my opinion, Ellora’s Cave is FAR worse off now than they were just after the original Dear Author blog post. Now, forever memorialized in evidence, is a sworn affidavit from the executive director of the RWA stating that Ellora’s Cave admitted they were having problems and they took action against EC.
You can’t just wish that away, no matter how hard you try. Anyone who didn’t know that before, now it’s out there for everyone to easily find.
And now there are also sworn statements in evidence by others who report issues with Ellora’s Cave.
This next section is pure speculation on my part, but I’ve said it all during the course of this ridiculous lawsuit: my belief is that EC took a gamble because they probably thought they were too big to lose, they sued what they likely thought was a disliked blog, and they probably thought they’d have the court of public opinion on their side because “Jane is mean, yo.” And if that’s what they went into this thinking, they massively lost that gamble, because no matter how much some people might dislike Jane/Dear Author, the vast majority of us out there hate a free-speech-chilling bully even worse. Especially one about whom rumors have swirled for years. And it gave people, finally, a chance to stand up and get their voices heard about their experiences with EC. It is my opinion that EC likely assumed that DA would simply roll over and yank the post, and that all of romlandia would be cheering them as the ones who fought “the mean blogger.”
If that is what happened, then it was certainly a massive tactical fail on EC’s part. But again, it points to how absolutely out of touch management appears to be with what’s really going on and what people really think about EC in this day and age.
And now they still are potentially looking at whatever Ann Jacobs et al might decide to do next.
I, for one, will keep signal-boosting this issue. And I also join others in massive thank yous to Deirdre and Courtney for the legal-beagle end of things. I’m interested to see what will happen next in this situation.
THIS: “… no matter how much some people might dislike Jane/Dear Author, the vast majority of us out there hate a free-speech-chilling bully even worse. Especially one about whom rumors have swirled for years. And it gave people, finally, a chance to stand up and get their voices heard about their experiences with EC.
Good came out of bad.
Tymber, I appreciate your tackling what I’ve always considered one of the most interesting questions, the ‘What were Ellora’s Cave thinking?’ one. In short, you speculate rational calculation.
I spent decades reflexively assuming that confrontations involved rational actors playing out game theory, before the repeated experience of being blindsided by strange, inexplicable attack episodes reminded me of a disturbing truth: A goodly percentage of people you encounter are off their rockers. Also, some people allegedly acting to advance an organisation’s interests aren’t, because of conflicting loyalties or other reasons. And then there are the worst cases, where players are both crazed and in conflict of interest.
Suppose one had a case of a publisher majority-owned by an often somewhat un-centred person who had distanced him or herself from its day-to-day operations. Suppose top management of that firm were a relative who never quite told anything like the honest truth to the majority owner about how things are going. Suppose the firm faced very challenging outside criticism indicting management and calling into question its ability to survive at all. In that hypothetical (which is just an example, as I’ve no inside knowledge of actual publishing firms), totally irrational tactics would be almost guaranteed, ones that would leave outside observers wondering ‘What were they thinking?’
Sometimes, it’s not a tactical fail one’s seeing; it’s sometimes reality-contact slippage.
Some firms fail out of basic cognitive deficit, slouching towards bankruptcy court, waiting to be unborn.
Rick Moen
rick@linuxmafia.com
I’m one of the authors who didn’t have a dog in the fight, since I’m not published by EC, but watched with a great deal of interest and concern. Any time a publisher is alleged to not be dealing fairly with authors, it affects all of us.
My contribution to the defense fund was not because I was against Ellora’s Cave, but because I was for unchilled speech. Thank you, Deirdre, Courtney, and all the others who kept us informed, and navigated through the legalese to help us understand all the issues. You performed a great service for romance authors and readers.
Thanks for all your coverage of this.
I’m not shocked that they settled prior opening books to public court records.
I don’t blame Dear Author (Jane) for settling or for any non-disclosure aspects of settlement — few victims …er… defendants are going to want a lawsuit dragging on forever. I hope she recouped legal costs.
For her sake, glad it’s over. For the book and blogging community — I actually would have loved a court ruling with lots and lots of public financial records from E.C. I’m confident E.C. could not prove that Jane was lying about their being behind in authir royalties or that she had a dog in the fight other than writing an opinion piece. Would have been nice getting clearcut discouragement of future lawsuits over opinions and posts of what are either to be considered journalists with same restrictions and protections or just as people exercising their protected consumer speech/opinions.
Honestly, I’m still a little shocked it was allowed to go past a hearing where a judge should have said “are you seriously trying to repress a journalist’s current and future speech without providing proof (financial records where all royalties to authors were in order) that the statements were false or there was a material connection or malice behind the reporting?” or even “are you seriously suing over an opinion piece by a blogger?”
It’s interesting to read between the lines of what Mastrantonio filed on behalf of EC:
Which reads to me as: all other attempts at settlement were initiated by plaintiffs.
Considering that Randazza says that Mastrantonio admitted to not having been paid; and that then Mastrantonion said Randazza was lying about that; and that them Randazza accused Mastrantonio of lying, etc…
I am not sure I buy that it was Dear Author who wanted the settlement.
Otherwise, I would think that The Curious Case of Ellora’s Cave would have been deep-sixed upon signing the settlement. And…nope, it’s still up.
Dear Ms. Saoirse Moen, I add my thanks to your extensive updates on the EC debacle. I add my tale of woe – I was one of the editors at EC, and one of 6 people who filed an Affidavit. I also have yet to be paid all I’m owed. I doubt I’ll ever see a penny. As some of the authors have said, every time I consider working for another publisher, I do my due diligence. I won’t be caught again like that. It just hurts a little more knowing I’m not getting paid because of petty spite. May we all live long and prosper. Hugs, Mary