Today, a dismissal order in the Ellora’s Cave v. Dear Author case was filed by federal court Judge John R. Adams. Here is the entire body text of that order:

On October 22, 2015, the parties contacted the Court to confirm that the parties reached a settlement agreement on all claims. Therefore, the docket will now be marked “settled and dismissed without prejudice.” The parties may submit within thirty (30) days of this order a proposed entry setting forth different terms and conditions relative to the settlement and dismissal of this case, including dismissal with prejudice, if they deem it necessary. If approved, the proposed entry shall supplement this order. This Court retains jurisdiction over the settlement.

IT IS SO ORDERED.

Therefore I’d like to make a point clear again: despite the rumors circulating that the judge ordered the settlement, let’s put it this way: what the judge wrote shows that claim to be far from reality based.

In my limited experience reading dockets, however, it’s unusual for a completed settlement to be “without prejudice.”

Links to More Authors Speaking Out

(a.k.a. The Department of Holiday Shopping)

Right after the settlement was announced almost two months ago, there was a pall of silence for a bit, but since then, quite a few more authors have spoken out about their experiences with Ellora’s Cave.
Here are some of those links with a summary of each. I’ve listed the authors in alphabetical order by first name.

• A.M. Griffin posts asking readers not to purchase her Ellora’s Cave titles (the “Dangerously” series). Her post also has links to her non-EC titles, including some under other pseudonyms.
• Ann Jacobs posts about having first published with EC in 2003, and how her eyes were opened. (Ann still has a motion pending in the Ellora’s Cave v. Dear Author case claiming she’s owed $193,000 in back royalties.) Ann has also asked readers not to purchase her EC books while they’re still at EC. Here’s Ann’s Amazon author page.
• Cait Miller started out with Ellora’s Cave in 2003, which is fairly early. Quote: “Maybe two years ago my sales had dropped so drastically that I started to question my books fit with EC.” Note that this was before the Dear Author article and thus the lawsuit. She doesn’t have any non-EC books available at this time, so I’ll link to her author page if/when that changes.
• Denise A. Agnew has asked readers not to purchase her Ellora’s Cave titles while she’s still at EC. Here’s Denise’s Amazon page.
• Frances Stockton started out with Ellora’s Cave as a Paranormal Historical line for the company’s Cerridwen Press imprint, which later became their Blush imprint. Frances’s Amazon page is here, and her non-EC title is here. I’ll speak to Jaid Black’s comments on Frances’s post in a separate entry.

• Jane Leopold Quinn posts her own story.

  I’m out of the mix since I’m one of the authors who paid money to get my rights back. I’ve never spoken up in public before about this, but to see people claim that EC won the lawsuit and DA apologized is NOT what has happened. I’ve been wanting to speak out but wasn’t sure what venue to use. This is as good a venue as anywhere. EC still has its fans, but the public should at least take into account that many, many authors saying the same things about a publisher just might be telling the truth.

  Jane’s Amazon author page can be found here.

• Kate Sherwood published one novella with Ellora’s Cave and describes her experience. As for timing, she says:

  I asked for my rights back, I think for the first time, shortly after EC sued DA. I just didn’t want any money from my writing going to support that kind of nonsense. I was refused because my sales were still above the threshold. Fair enough.

  Kate’s Amazon author page can be found here.

• Kelly Jamieson has told her story here. She first signed with Ellora’s Cave in 2009, and points out that she became dissatisfied with EC in 2012. I mostly know her as a Samhain writer and have read quite a few of her titles for that house. Kelly’s Amazon page can be found here.

• Titiana Ladley spoke out on Twitter:

  Dear readers, please don’t buy my remaining 3 EC books. If EC can’t remember 2 pay me, then I hope you forget 2 buy. Thanks! #notchilled

  Titiana’s phasing out that pseudonym, and here’s her first title writing as Josie Jax.

Best of luck to all the above authors! (Especially those still waiting on reversions from Ellora’s Cave.)

Also, here’s a recent post from Tymber Dalton who has some important points about contracts.

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

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

I’m going to give a summary of those recent developments, then I’m going to discuss a few rumors going around and my take on those rumors. This is likely to be the first of several such posts.
And, at the end, a follow-on to my previous Ellora’s Cavemen anthology post.

Ellora’s Cave Former Managing Editor Speaks Out

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

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

She talks about the heartbreaking treatment of authors:

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

…and…

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

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

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

I’ve been in similar work situations (in another industry) and can deeply resonate with this post.
The entire post is worth a read, and it’s also a great cautionary tale for why you, as a writer, should negotiate the hell out of your contracts.

Dear Author Revelations about Court Costs

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

To date, I have paid the following in fees:
Randazza Law Firm: 115,712.29
Lefton Group: 2,855.00
Expert witness fee: 5,075.00
Brennan, Manna & Diamond: 8,936.06
The total was: $132,578.35

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

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

Jane Litte’s Error Corrections

As covered in this Dear Author post.
My commentary follows:

I made some errors and want to correct them:

1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.
2. She has not gone on any recent Rodeo Drive shopping trips.
3. The principals of Ellora’s Cave did not receive “no interest” loans.
4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.
5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.

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

1. Tina Engler has represented that she has not purchased a house in West Hollywood and has not indicated to me that she did.
   I’d previously mentioned that I’d found Tina Engler saying it was a lease. That said, it was a mistake, not a lie (nor defamatory!), and Jane’s context in the Curious post is still relevant: it’s an expensive place to rent, too. This correction seems to be all about Tina Engler’s ego.
2. She has not gone on any recent Rodeo Drive shopping trips.
   @ataglanceRMC pointed out that Tina Engler said she was looking at houses in the area at the time that she checked in from Rodeo Drive. That said, Jane Litte’s statement wasn’t defamatory, nor was Tina Engler even a party. This correction seems to be all about Tina Engler’s ego.
3. The principals of Ellora’s Cave did not receive “no interest” loans.
   This was actually not one of Jane’s representations, but something from the Brashear case that Jane cited. Maybe Ellora’s Cave should have fought harder on that docket.
4. It has been represented to me that, at the time of the post, most or all authors had been paid within their individual contracts.
   Note that this assertion is very carefully worded, quite scathing, and says absolutely nothing about what Jane thinks the truth is, nor what the truth actually is, nor what you should believe.
5. Finally, Patty Marks has not said that the company will be entering bankruptcy or that any contracts will be sold in bankruptcy.
   …but that says absolutely nothing about whether or not Ellora’s Cave is a going concern.

Instead, what we have are the following:

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

Department of Rumor Control

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

Rumor: Ellora’s Cave Won the Lawsuit

(Rumor source: now-deleted facebook post by RT Booklovers Convention; here’s their apology.)
Fact: This rumor is false. The lawsuit was settled, which can be more accurately translated as: both sides lost.
Fact: Also, technically, the case is still not over. The judge noted a settlement had been reached on Oct 22, but there has been no stipulated motion to dismiss, nor has the case been dismissed by the judge. There is still the matter of Ann Jacobs’s motion to intervene, too.

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

(Rumor source: Emma Paul.)
Fact: When the court issues an order, there’s an item on the docket. There is no such item on the docket. Also, the copy of the order is downloadable by anyone unless it is noted as sealed. None of the judge’s orders are noted as sealed.
As of this writing, there have been no docket items since the judge’s note of the proposed settlement on October 22. When the settlement is final, the case is finally dismissed, and that has not happened yet.
Additionally, EC supporters can probably believe Ellora’s Cave’s lawyer on this (document here):

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

This was not ordered by the judge. Plaintiffs and Defense approached the judge the following day with a proposed settlement.
Anyone with a PACER account can verify that my copy of the docket matches the court’s record.
If you wish to do so, here are the steps:

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

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

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

And that’s it. There are really only two substantive rulings in this case: denying Ellora’s Cave’s motion to remand the case back to Ohio state court, and the denial of @pubnt’s motion to quash the subpoena to Twitter to discover @pubnt’s identity.
To those spreading this rumor: put a couple of bucks where your mouth is and support accurate information.

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

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

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

For an agented author:

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

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

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

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

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

(Source: Tina Engler)
This is false.
Fact: Nothing Ellora’s Cave submitted about any author was proven to be true in court. There were no rulings about the factual nature of any evidence about any author submitted in the case.
Except, of course, for @pubnt. Somehow, I don’t think that’s what Tina meant, though.
It’s not proven until the judge or jury agrees; please see above for all the judge’s orders. No jury was ever selected as the case didn’t get to the voir dire stage.

Ellora’s Cavemen Anthology Contract

I’ve been given a copy of what claims to be a 2008 Ellora’s Cave Cavemen Anthology Contract. (Note: it may be until sometime Saturday 12/12 before this document syncs)
I don’t know that this contract is specifically the same as any that were signed. I just noticed the following things about this particular document.

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

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

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Earlier today, Laurann Dohner updated her facebook profile to show Ellora’s Cave as a former employer rather than her current one.

A bit later in the day, she removed Ellora’s Cave from her work history entirely.

So far as I’m aware, all of Laurann Dohner’s titles remain in print with Ellora’s Cave, at least for the time being. If I were the speculating sort, I’d guess that we’ll be seeing reversions happening at some point in the not-too-distant future.

A Shiloh Walker / J.C. Daniels Update

Earlier today, Shiloh Walker (who also writes as J.C. Daniels) posted a link to the Twitter #notchilled hashtag linking to this blog post about her Ellora’s Cave titles.
An excerpt from that post:

At this time, I’d like to request that my readers stop buying the titles below from any and all retailers. If I’m not going to get paid, and in a timely manner, I’d rather the books not be bought at all.
Her Best Friends Lover
Silk Scarves and Seduction
Never as it seems
Guilty Needs
One of the Guys
His Christmas Cara
Lacey’s Game
Belonging
Sexy Little Surprises

Best of luck to Shiloh on getting reversions for her remaining EC titles.
I’ve heard from sources sources that many, if not most, long-time Ellora’s Cave authors want out. Unfortunately, they’re neither in a position to use a hammer (e.g., a lawyer) or slink under the low number of sales. Most are now publishing with other houses or indie publishing themselves. (As far as many/most, I believe my sources are credible on this point, but I obviously haven’t heard from more than a fraction of EC’s authors.)
At least some fear speaking out because they’d be branded as troublemakers—and feel they would be less likely to be paid and/or less likely to get reversion offers they could live with.
Which reminds me….

Booktrack Adds Ellora’s Cave As a Publishing Partner

The article here lists a few Ellora’s Cave authors being converted to the Booktrack format:

• A.L Wiley (first published by EC in Oct 2015)
• Lora Leigh (long-time EC author whose last EC book was published in May 2014)
• Desiree Holt (long-time EC author whose last EC book was published in Feb 2015)
• Audra Carusso (first published by EC in Feb 2015)
• Joanna Wylde (EC published the first book in a series; later volumes from Berkeley made her a NY Times bestselling author)

Joanna Wylde, you may recall, was one of Jane Litte’s sources for her Dear Author article The Curious Case of Ellora’s Cave, and said she had not seen Amazon payments since January. (Despite the name being redacted on that document, it’s put together in this document on p.6.)
So what’s Booktrack’s interest in Ellora’s Cave?

Booktrack offers a new content creation and distribution platform that turns reading into an immersive movie-like experience. Booktrack’s patented technology lets anyone add a synchronized movie-style soundtrack to an e-book or other digital text content, with the audio paced to each individual’s reading speed.

I can just hear the moan soundtrack and the bad ’70s jazz….

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Some Ellora’s Cave authors have been reporting that, indeed, they have received royalties from Ellora’s Cave recently. Yay. Except that some of those same authors are reporting they have notable inaccuracies.
Update 11/18:

Color me surprised–I received a check from EC today for Mar-Jun royalties, an amount in line with my expectations. #notchilled

— Robin L. Rotham (@robinlrotham) November 10, 2015

Yesterday received EC royalties check and statements – March, April, May and June 2015 :-) #notchilled

— Jan Springer Author (@janspringer) November 14, 2015

Hold the hoorays, though, because there are issues.

Royalty Statement and Check Mailed to Wrong Person?

Sidney Bristol reports that someone else received her royalty statement and check.

I’ve been told someone else has received my statement and royalties, so technically I guess I’ve been paid? So weird. #notchilled

— Sidney Bristol (@Sidney_Bristol) November 15, 2015

Paid for Print Book that Ellora’s Cave Never Published?

Update 11/18: I’ve added Patty Marks’s letter to the ec_biz list at the bottom of this post. This was a product type error that reportedly does not affect the royalty amount.
Shoshanna Evers reports having received a royalty statement claiming that she was being paid for a print book for her title Chastity Belt—even though Ellora’s Cave never published that title in print.

The *only* paperback format of this book was self-pubbed after EC rights reversion. What is going on? ? #notchilled pic.twitter.com/oelHwhoorZ

— Shoshanna Evers (@ShoshannaEvers) November 16, 2015

Olivia Waite reports the same issue:

@ShoshannaEvers Mine has the same thing, I just saw, and I’ve never had print editions of these titles. ??? #notchilled

— Olivia Waite (@O_Waite) November 17, 2015

If you search on Shoshanna’s ISBN, though, (see tip below), you’ll find this Google books page. Now that link doesn’t specifically state that it’s an ebook (nor does it have the correct description for the book), but it is the ebook published in 2011. Sometimes you need to look at several of these to get the full picture.
What’s important, though, is that Ellora’s Cave pays lower royalty percentages for print books due to the physical cost of producing and shipping books. Reasonable.
It seems to me that this was an error on the royalty statement for the wrong format. It’s pretty clear for those cases where only one format was ever published by EC, but less clear when both print and paper were published.

Price Column Sometimes the Total, Sometimes the Unit Price?

Robin L. Rotham reports that sometimes the price column is the price per unit, and sometimes the total.

@authrannjacobs @ShoshannaEvers And WTF is up with the PRICE column? Sometimes it’s the total, sometimes it’s price per unit. #notchilled

— Robin L. Rotham (@robinlrotham) November 16, 2015

She also reports being underpaid for a specific title for a four-month period.

Two Conflicting Statements for the Same Month?

Robin L. Rotham also reports getting two statements for March—and they disagree.

@authrannjacobs @ShoshannaEvers AND got two statements for March, different formats and totals. Not sure what to make of THAT. #notchilled

— Robin L. Rotham (@robinlrotham) November 16, 2015

What’s Really Disheartening…

…is trying to get existing issues resolved.

@authrannjacobs @ShoshannaEvers *sigh* You made me look at MY statement. My third “corrected” January statement is STILL WRONG. #notchilled

— Robin L. Rotham (@robinlrotham) November 16, 2015

@ShoshannaEvers @charmedozarks When you bring the mistakes to EC’s attention, are they able to correct them quickly? #notchilled

— Susan Garbanzo (@Soenda) November 16, 2015

@DKinnard @Soenda @ShoshannaEvers @charmedozarks response for mistakes r the same as response 4 nonpayment. Silence #notchilled

— Trista Ann Michaels (@trista_michaels) November 17, 2015

Another Issue to Check

If you have a pre-mid-2011 contract where your contract says you should be paid on cover price rather than sales price (and you didn’t agree to amend the contract to sales price), you might want to double check that your royalty statement reflects the correct price.
For more information about this issue, please see Ann Jacobs’s Intervening Counterclaim in the Ellora’s Cave v. Dear Author case.
I’ve heard that some people hadn’t heard about Ann’s counterclaim (still pending in court as of this writing), so wanted to give a heads up.

The Long Tail, Redux

Assuming a constant error rate, one way Ellora’s Cave could reduce its number of errors is, as I’ve said before, chopping the long tail.

Search Tip

If you have an ISBN and want to check more information about who the publisher is and what the format associated with that ISBN is, Google on:

ISBN (number)

I find Google is a better search engine than Bing for this particular purpose as you’re more likely to find a useful result with smaller houses.

Patty Marks’s Letter re: ARE Books Showing As Print

From: Patty Marks
Date: Nov 18, 2015 2:11 PM (1 minute ago)
As you receive your royalties, you will notice that the product type under ARE (All Romance Ebooks) sales is showing as PRINT on the May statements. This should read Ebook, however, if you do the calculations, you will see that it has no affect on the royalties. According to our MAS liaison:
“when loading customer sales order file, the Store Site and Product Type is defined. the Store Site and Product Type are constants in the production of the monthly Detail Report.
all royalty calculations, Print or E Book are performed for each ISBN in the Inventory module. regardless of the Store Site or Product Type defined at the sales order load, the inventory module identifies the ISBN correctly and assigns the correct royalty percent accordingly..
thats it.”
I noticed the error when we started sending them out, but did a quick calculation and saw that it had no effect on the numbers. As that was the case, we decided it was more important to work on getting them out rather than redoing everything. I apologize that I didn’t mention it.
Sincere thanks to Jan Springer for contacting us – she had already figured the numbers were correct, but I really do appreciate her bringing it to our attention, as we should have saved her and others the trouble of figuring it out for themselves.

I’m very glad this doesn’t affect royalties and doesn’t mean EC will have to issue a bunch more checks and the authors were (per Patty) paid correctly for those titles.

Questions? Comments? More Royalty Peculiarities?

Please feel free to leave comments below.

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First: if Tina’s email comes to pass, it will mean Ellora’s Cave authors will be getting paid. My commentary follows Tina’s email.

From: theeternaltubthumper
Date: Nov 6, 2015 1:33 AM
Subject: [ec_biz] royalty info
I wanted to let everyone know to expect a check for March-June (hopefully!) before Christmas!! 🙂 Checks have resumed going out daily along with their accompanying reports. As these reports are being pulled individually, it will take a solid 1-1.5 months to get them all verified, and mailed. After March-June is completely done, we will repeat the process for July-September (or July-October if it takes closer to 1.5 months than 1 month to mail all the March-June checks.) Point being, everyone will be 100% caught up soon!!
I won’t bore you with too many technical details, but I do want to try and semi-explain the software for the reports: every month has to be pulled, verified, and re-verified before a check is cut. We wanted to send out one check covering March-August, but July and August still need pulled, verified, and re-verified; we figured you’d rather get March-June now and the remainder in the next batch as opposed to waiting on those reports so everything could be included in 1 check. (And hopefully that made sense!)
At any rate, Courtney is busting more butt than usual in an effort to get everyone’s March-June checks to them in time for the holidays. The less email she receives over the next month, the better. Obviously if there is something that needs brought to her attention ASAP, please do email her. Otherwise I will post here when the last batch of checks are mailed so you know to contact her if you haven’t received your check within 10 business days of that date.
Last note: we are going to be switching our biz loop to a different, trackable system after the checks are caught up so we can resume open communication. We are very sorry we’ve had to go nearly silent this past year and look forward to resuming open communication with you to keep you apprised of what’s happening at home base.
If you don’t hear from me beforehand, please have a very Happy Thanksgiving 🙂
Tina/Jaid

Sooooo…Tina’s pre-announcing checks. Remember January’s pre-announcement?
And EC’s going to switch to some trackable system that even major tech companies do not use because…why, exactly? EC’s communication wasn’t top notch even before the whole Dear Author thing went down. It’s not Jane’s fault, nor Courtney’s, nor mine, nor any of the other participants in #notchilled.

Well, I’m glad you clarified that, Jaid. Really. (Note: screenshot is of this link.)

¡¿Four to Six Weeks Per Quarter!?

Let me get this straight: Ellora’s Cave’s controller is spending a solid third to half her working hours verifying (and inputting) royalties and issuing checks. There are, as of October 19th, 813 Ellora’s Cave authors, but let’s round that down to 800 for easy math, which translates to 133 to 200 authors per week.
If we assume eight-hour days and five days a week (even though that’s optimistic), that’s forty working hours a week. An average day would therefore mean 26-40 authors’ royalties verified; an average hour 3.25-4 authors.
Assuming there’s no easy way to make the work process more efficient (doubtful, but let’s run with it), what’s the easiest way to reduce the workload without reducing profitability?
Chop the long tail. From that post:

With over 800 authors, some of those authors are going to be bringing in peanuts and others whole food trucks. Release the authors that are consistently not performing.
As an example, calculate how long it takes to put together all the royalty information, divide by the number of authors. Figure out how much you’re paying the people who do that work, including cutting the checks. Triple that cost. For the authors who aren’t making, on average, that much for the house over the last year, offer to release their titles (for no fee).

Also, it’s probably true that anthologies are the most difficult. Given that anthologies divide royalties between contributing authors, for every anthology, you’ve got to do the work N times. Unless those are really really big sellers, then it’s time to give them a neutral look with a profitability eye.
If some authors aren’t making more for the house than the cost to cut the checks, it’s saving both money and time to cut those authors from the list.
It’s also unclear to me why hand verification of each author is necessary. Even indie authors get spreadsheets from Amazon. Those spreadsheets include things like:

• ASIN
• Quantity sold (also includes KU/KOLL if those features are enabled)
• Price sold at
• Currency

I can see one possible configuration of the required database tables in my head:

• Authors
• Books (this would include a field for whether the payment for this book was based on cover price or sales price and the royalty rate for this book)
• AuthorsXBooks (many-to-many join table with at least one additional field for royalty %)
• SalesOutlets (e.g., Amazon, All Romance Ebooks)
• BooksXSalesOutlets (to hold things like Amazon ASIN and URLs by site)
• SalesOutletsCurrencyMonth (i.e., for Sep 2015, Amazon’s exchange rate for UKP was USD $1.59)
• SalesXBooksXSalesOutlets (Also links to SalesOutletsCurrencyMonth for non-USD sales. Basically, this keeps sales price (which can be multiple values per sales outlet per month), month sold, quantity sold—and stuff like that.
• RoyaltiesXSalesOutlets (totals received from each vendor by period—the check-and-balance in double-entry accounting)
• PaymentsXAuthors (check #, time period covered, amount)

Then write an importer for each file from each publishing outlet and some good unit and functional tests for edge cases. If the royalties (including the publisher’s share) total the payment received, it’s good.
What still mystifies me: if this new royalty application has caused (or helped cause) so much consternation and cost since 2013, where’s the lawsuit for that?

Why Is Tina Pre-Announcing Now?

Let’s look at a timeline here:

Date	Event
08-18-2014	Ellora’s Cave Layoffs.
09-24-2014	Laurann Dohner’s Darkness, a book in her New Species series, released. Shortly after, the book becomes a NY Times bestseller. Amazon monies for this would start coming in the end of November (assuming the same payment schedule as indie authors); All Romance Ebooks payments would arrive mid-November.
10-29-2014	Laurann Dohner’s Smiley, a book in her New Species series, released. Shortly after, the book becomes a NY Times bestseller. Amazon monies for this would start coming in the end of December (assuming the same payment schedule as indie authors).
1-7-2015	Tina/Jaid’s post to the biz loop about the status of royalty payments. (Note that one editor commented a few days ago saying that she’s still not been paid.)
9-8-2015	Laurann Dohner’s Numbers, a book in her New Species series, released. Shortly after, the book becomes a NY Times bestseller. Amazon monies for this would start coming at the end of November; All Romance Ebooks payments would arrive mid-November.
10-28-2015	Alien, an anthology featuring four Ellora’s Cave authors is released. One of the four stories is a new Zorn warriors story from Laurann Dohner.
11-6-2015	As quoted above, Tina/Jaid’s post to the biz loop about the status of royalty payments.

The point is: these little boom cycles where EC crows about being able to pay their authors follow fairly closely on the heels of Ms. Dohner’s book releases.
Which begs the question: Given Laurann Dohner’s announcement of a new self-published series, what’s going to happen when Ellora’s Cave no longer has new bestselling titles from her to rely on?

Speaking of Ellora’s Cave Releases

Let’s look at that image up top again.

After the August 2014 layoffs, EC immediately dropped from nine to ten releases per week to eight for the first two weeks of September, then five for the third (which was the week The Curious Case of Ellora’s Cave was published). So there’s absolutely no way that Dear Author’s article could have triggered that change. The following week bounced back up to eight releases, but the last week of the month—the week that Ellora’s Cave filed suit against Dear Author and Jane Litte—went back up to nine releases.

Part of the reason for the drop was the elimination of the Blush line (though there still would be releases of already-contracted Blush titles), which had typically accounted for one or two titles on a Thursday release. Non-Blush EC titles were released on Wednesday and Friday.

Over time, the number of releases slid…no week in December 2014 had more than six releases in one week, and the final full week featured only three releases.

With the exception of July, releases for 2015 ran about half that of the previous year’s releases, dropping even lower by August.

What’s also interesting is that since October, 2014, Micah BlackLight’s The Cult of the Serpentari has comprised 27 releases—more than any whole month since October 2014—first as 24 volumes chapter-by-chapter (from October 2014 to April 2015), then three omnibus volumes published in May 2015. It seems pretty clear that the old pricing structure wasn’t working as 24 volumes worked out to be a lot of money.

I said to Rick, “I’m not quite sure what to say about this graph.” Except perhaps that romance writers came to feel about Ellora’s Cave the way majority owner Tina Engler/Jaid Black clearly feels about them.

Rick said, “Perhaps some arch comment about starting a new chapter in their business?”

Edit Note

11/16: I’d inadvertently deleted the final two rows of the dateline table when I had two edit windows open and continued in the wrong one. Only realized this a week later.

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As much as @pubnt made us tear our virtual hair out on #notchilled, there were some really (unintentionally) hilarious assertions. Here are a few of my favorites.

1. Claiming to be a legal blogger (and law student)
2. …yet failing Courtney Milan’s 1L test.
3. Claiming Ellora’s Cave was in “merger” talks with a big 5 publisher.
4. Asserting tax liens are a “government agreed tax incentive” and “low cost loan.”
5. Saying it was perverse for the (Dear Author) defense team to call @pubnt as a witness. (Completely failing to understand why defense was subpoenaing Twitter about @pubnt’s identity.)
6. Assertions that Ellora’s Cave, which was founded in 2000, is an “ancient” publisher.
7. Claiming that Ellora’s Cave had $15 million cash in the bank, despite the fact that there are consistent reports, both last year and this year, of authors being paid super late.
8. “Wrong rubbish.” See also: false rubbish and banned wrong rubbish.
9. Not to mention “banned pariah.”
10. Asking Marc Randazza, lawyer for Dear Author, a legal question.

Claiming to Be a Legal Blogger and/or Law Student

@julainestone @jaidblack As legal bloggers we present valid legal arguments. Only the Judge determines if our legal arg. applies.#notchilled

— Pub Net (@pubnt) December 24, 2014

@tejasjulia Only one of us is, but she is hardly on here. Yeah, we are legal bloggers with access to a lawyer sometimes. #notchilled

— Pub Net (@pubnt) February 14, 2015

@Anda_Rae @Gianna_Simone @excogitates As a law student and a lawyer we knew this had to happen for Judge Adams to run the trial. #notchilled

— Pub Net (@pubnt) January 30, 2015

Courtney’s 1L Test

Hey @pubnt if your number includes a lawyer, when does the law assume that all eighty-year-old woman can have children?

— Courtney Milan (@courtneymilan) December 18, 2014

Covered in this post here.

Tax Liens

@AuthorAnitaCox Tax Liens: Because it is a Government AGREED tax incentive and for effectively EC a low cost loan. #notchilled

— Pub Net (@pubnt) February 16, 2015

@tejasjulia Agreed tax liens is a LOWEST rate cash around 4 the “borrow low (interest), invest (at) high” returns first princple.#notchilled

— Pub Net (@pubnt) January 15, 2015

(Quite apart from the fact that the existence of tax liens will tend to drive the cost of all other sources of credit higher.)

Calling @pubnt as a Witness

@ataglanceRMC And thus the DEFENSE calling us as a witness is PERVERSE. For who calls a “witness” to prove the OPPOSITION’s case?#notchilled

— Pub Net (@pubnt) February 16, 2015

Courtney covers the logic errors in @pubnt’s position here. I just re-read that post the other day, and it’s fantastic.

Ancient Publisher

I’ve sat on things that pre-date Christianity (e.g. at the Temple of Delphi), so even my ass has more experience with ancient things than EC…unless one’s counting appropriating sacred caves in India or symbols of Ancient Egypt.

Even if EC wants to consolidate, which there is no indication of, demand for the ancient pub will be huge. @Soenda #notchilled

— Pub Net (@pubnt) October 16, 2014

There’s no reason for the authors of a publisher with a rep as ancient as EC to panic. #notchilled

— Pub Net (@pubnt) October 16, 2014

EC is an ancient enough Pub it must now close doors to unagented submissions. Agents know how to behave, filter trash.@jaidblack #notchilled

— Pub Net (@pubnt) October 13, 2014

$15 Million in Cash in the Bank

@tejasjulia @ataglanceRMC They can confiscate EASILY from bank account with $15 million if they wanted, Mega Supid Slush Piler. #notchilled

— Pub Net (@pubnt) February 16, 2015

…and also this overstatement of EC’s earnings (based on various articles)…

@AuthorAnitaCox @ataglanceRMC ..right through the years EC was raking in 15 million to 20 million profits per annum. #notchilled

— Pub Net (@pubnt) February 16, 2015

Wrong Rubbish, et al

@julainestone @deirdresm If EC had gone under by the end of the year DA would be sitting pretty now for it was not WRONG RUBBISH.#notchilled

— Pub Net (@pubnt) February 16, 2015

@julainestone @deirdresm ..that has already been proven as WRONG RUBBISH meeting conditions of Libel stronger every day. #notchilled

— Pub Net (@pubnt) February 16, 2015

Banned Pariah

@Format_Me @julainestone A banned pariah with no credibility that nobody respects and nobody believes. #notchilled

— Pub Net (@pubnt) January 28, 2015

@Soenda @julainestone That’s in Slush Piler Dreamlandia. EC will laugh at any demand from this banned pariah slush piler. #notchilled

— Pub Net (@pubnt) January 13, 2015

Asking Randazza

@marcorandazza (1/2) Please give us an insight into why you would go to Fed court with an experienced First Amendment judge… #notchilled

— Pub Net (@pubnt) January 27, 2015

@marcorandazza (2/2) … and then agree to proceed with a Magistrate, counselor. Any insight much appreciated. #notchilled

— Pub Net (@pubnt) January 27, 2015

Randazza’s answer is gone, but if I recall correctly, it boiled down to ask your own lawyer.

Special Double Backflip Fail Award

And for the special double backflip fail award, special mention should go to filing a paper with the court (interpreted as a Motion to Quash) that was so ineptly written the court was able to overrule simply because @pubnt admitted to having discoverable information in their filing. From the judge’s order:

Here, @pubnt objects to any information being produced by Twitter that may assist in identifying the “owners” of the account. However, in the five-page letter, @pubnt does not identify or analyze any basis for quashing or modifying the subpoena permitted under Rule 45. Instead, the letter indicates that the individual or individuals who purport to be the “owners of the ‘@pubnt’ Twitter account” are intimately familiar with the parties in this case, along with the claims and defenses asserted. They speak adamantly, declaring to all readers that they have witnessed misconduct by Defendants and that they can prove their negative statements about the Defendants. These facts alone put @pubnt and its “owners” within the confines of Fed.R.Civ.P. 26 and Fed.R.Evid. 401, and therefore, their information is subject to discovery under the subpoena power of the Civil Rules.
In their letter – let alone the actual tweets on the account – the @pubnt “owners” confirm that they have knowledge about the underlying allegations and defenses, such as claims for defamation/libel and the defenses of truth, substantial truth, and lack of malice.
[…]
Simply reading the “owners’” letter demonstrates that they have relevant information that is discoverable in this case. Merely because the Defendants may be able to obtain certain information from other sources does not render the subpoena unnecessary. Furthermore, Defendants are entitled to pursue discoverable evidence from the primary source, instead of merely accepting statements by the “owners” that information they have can be procured by other means (especially considering the tenor of their letter shows an almost venomous disregard for Defendants).

Several Reasons Why I Think Tina Engler Is @pubnt (or part of @pubnt)

Comments About EC’s Counsel, Past and Present

First, assertions about the Dear Author suit’s Ellora’s Cave Attorney vs. the Brashear suit’s EC Attorney.

@deirdresm Seems EC has a better attorney this time or he wouldn’t have agreed stipulations. He’s not playing hardball. #notchilled

— Pub Net (@pubnt) November 1, 2014

@deirdresm .. unlike the attorney in the last case. This attorney seems to be conducting this case very correctly. #notchilled

— Pub Net (@pubnt) November 1, 2014

@deirdresm I meant better in the sense better behaved proceduraly and in compliance than the atty in EC’s previous case.#notchilled

— Pub Net (@pubnt) November 1, 2014

I’ve made reference several times to the Brashear judge’s 27-page smackdown ruling (doc here, please add popcorn), but there is nothing in that document that points to any correctness of @pubnt’s assertions. In fact, this conversation caused me to read the entire Brashear case over time, and I never did have that kind of sense of either their earlier counsel in the case (whom EC later sued) or their later counsel.
So who would? One of the very few EC insiders who either a) had direct access to said counsel; or b) was one of EC principal’s confidantes—but even confidantes will tend to forget details over the years, you know?

Comments About Ellora’s Cave’s Merger Negotiations

Merger information is generally embargoed until the merger is fully hashed out, but @pubnt was quite happy to tweet all about it.

@JetGibbs The merger partner would have trimmed the bad eggs. happens all the time. Lean and mean EC with big profit margins. #notchilled

— Pub Net (@pubnt) February 14, 2015

@trista_michaels Your contract will also be earmarked for a fire sale by EC & big pub merger partner. #notchilled

— Pub Net (@pubnt) January 31, 2015

@tejasjulia @CatGrant2009 @ataglanceRMC EC wouldn’t want a sale. Only a merger. #notchiiled

— Pub Net (@pubnt) January 17, 2015

Funny how @pubnt knew (alleged) internal motivations. Even more interesting was that Ellora’s Cave never did anything about it. In fact,

Lightening

@ShelbieKnight Stands to reason. NO PUBLISHER would touch an author complaining about a lightening fast 3/5 Editing schedule. #notchilled

— Pub Net (@pubnt) November 9, 2014

@ShelbieKnight Professionals don’t tweet comments the opposite of the norm – about a 3/5 month lightening fast Editing schedule

— Pub Net (@pubnt) November 9, 2014

As I’ve previously pointed out, this one of several typos that Tina Engler and @pubnt share.

Ellora’s Cave Seemed Singularly Uninterested in Who @pubnt Was

…despite the fact that @pubnt made Ellora’s Cave look bad.
In fact, in filing 72-1, Mastrantonio wrote (emphasis added):

Even if Plaintiffs were responsible for the actions of @pubnetTwitter, such conduct is not relevant to establish any element of abuse of process. Element (2) of abuse of process makes it clear that the “proceeding” that is being used for the ulterior purpose is the legal proceeding. In other words, the abuse has to involve the misuse of procedures like discovery or some other tool of the judicial process. Regardless of who or what @pubnetTwitter is, its actions are not using the machinery of this litigation. Accordingly, such conduct cannot be considered as part of an abuse of process claim.

Mastrantonio seemed so clueless about Twitter at that point that he really had no idea what had been going on for months.

Credits

Thanks to Brian Longoria for the Pumpkin PSD mockup. Fun!

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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.

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Yesterday, New York Times and USA Today bestselling author Laurann Dohner said she’d have some news today. Today, she posted the news: she has one book completed and another in progress, both to be released in December. The really big news happens in the first and second comment:

For the visually impaired, Valerie asked:

Will this be a self-published venture or through your regular publisher?

(All of Ms. Dohner’s previous books have been published by Ellora’s Cave.)

She replied:

You go right for the tough one, Valerie. LOL. This is my project. It’s my baby.

Which several people interpreted to mean these two books will not be published by Ellora’s Cave.

Existing Series

So far as I know, all of Ellora’s Cave’s recent NY Times or USA Today bestselling titles have been authored by Laurann Dohner.

Ms. Dohner did say further along in comments that, “I still have a “to write” list a mile long for my other series.” So we can expect to see more in those lines, though she hasn’t stated whether or not those books will be published by Ellora’s Cave. Legendarily, Ms. Dohner signed a 75-book contract with Ellora’s Cave in 2011, but of course we don’t know exactly what the terms of that contract are.

I’m happy for Laurann and her new books, and I’m glad she’ll be able to bring them out independently. I could even pick up copies without breaking my “no Ellora’s Cave titles” rule. During this last year, I’ve met some huge fans of Ms. Dohner’s writing, and I’m looking forward to being able to see what the fuss is about.

Comments

I’d love to hear your comments, but please keep them polite. It’s a big step announcing a shift to being an indie writer, and it can be a scary time.

Also, this post may (or may not) have been brought to you by repeated listenings of Ozan Çolakoğlu’s song “Aşk Gitti Bizden” featuring Tarkan on vocals (English lyrics).

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] Elizabeth Fisher • Photo by Scott Beadle

When this posts, she will be going…or gone.

Earlier, she sent an email that’s just…so her. > at 11am zurichtime, whatevertime, your time, give a cheer, hey, cause

off i go and it’s all good.

It seems weird to say that someone will be dying at a specified time, but Elizabeth Fischer chose assisted suicide when she found out recently that she had terminal lung cancer.

From that interview:

You’ve been really open about choosing suicide. How have people responded?

My demise has become a community effort, and that makes me feel pretty good. People in my coop, in my musicians’ community, the artists’ community, have been really kind and supportive. I’m being love-bombed, and it’s kind of overwhelming, because I had no idea they cared so much. [laughs heartily] They all think that I’m being so brave, though I don’t think of it that way. I’m just too smart to want to die in a hospital, racked with pain, tied to IVs, utterly humiliated.

I can’t remember precisely when I met efish on the EFNet #scientology channel (which, despite its name, was mostly a channel of critics), perhaps even before I became a channel op sometime around 1995 or 1996. I just remember her always being there, usually the cheerful one. Often talking about dancing, singing, writing, art, goulash, Hungarian, or the strange trip she’d taken through life.

Like many people in our lives, even when I no longer hung out with efish on line a lot and wandered away from Scientology criticism for quite a few years, I thought of her a lot.

We saw each others’ comments on Marty Rathbun’s blog in March 2014—this post, in fact—and reconnected via facebook and, briefly, IRC. Mom and I took a trip up to Vancouver Island this April, but we had to do it at breakneck speed (which turned out to be fortuitous; my mother became very ill almost immediately upon our return), so I sheepishly told Elizabeth I’d be back.

In retrospect, I feel foolish. I’m sorry I wasn’t able to carve out the time.

Her Projects

• Her recent book, Orphans and Dogs, which includes quite a lot of her own pieces as well as her translation of Humorom by Attila Balogh, a Hungarian Roma poet.

• Some of her album covers.

• Cover to Animal Slaves album Dog Eat Dog. She did the cover and was a part of the band.

• Her recent show being mounted.

• Singer for Dark Blue World. You can listen to some of their music here. I find the song “On a Wire” particularly haunting tonight.
  iTunes: Album link. Song link.

It’s obvious there’s a hole in the Vancouver arts scene where she used to be.

Leaving Hungary

And now, a prose piece from efish about what it was like to be a refugee from her homeland. Illuminating for those of you who aren’t old enough to remember other large refugee crises, here’s a primer about the Hungarian Revolution of 1956. The refugee crisis was the first to be televised.
In terms of some since, it was far smaller than Syria (or Vietnam), so it was, relatively speaking, easy to find places to accommodate 200,000 people, 180,000 of whom fled into Austria. But that was by no means easy for those who were displaced…sometimes several times.
In that sense, assisted suicide—choosing the date, time, and place of one’s demise—makes a curious sense for someone blown about the globe by the whims of others at the earlier end of her life.

Underwear

Hungary, 1956, mother, father and me don the family underwear and scramble off across the border to Austria. Onto Austria, where every hungarian arrives heroically freedomfighting, and from which one can only be shipped off to Argentina, where – according to mother – far off relatives await with open arms. And there they are the far off relatives but no open arms await cause they see the underwear and it makes them nervous.
There we are then, flowing sewage in front, rendering plant in back. Father works in a factory and amuses himself by teaching everyone how to swear in hungarian. And then comes home and announces okay, but he’d much rather kill himself. So mother stops the nine months long weeping and removes the one family jewel pinned to the family underwear and goes to sell it.
In the meanwhile, I attend school in spanish. A catholic school run by nuns, where during religion classes I get to sit on a bench in the yard and play with the flies.
So mother sells the family jewel and buys a ticket back to Europe, come what may. And we iron the underwear and embark on a french ship. French cockroaches rove our bodies and father states that the french are shits so we will definitely not be going to France. Mother nods and continues to weep.
We arrive back in Austria where everyone is sick of heroes and freedomfighters. So there we sit at the nearest refugee vacation facility, a fuck you gesture in austrian dialect.
A yearlong vacation, twentyfive to a room, the family underwear on a clothesline. Sporting events abound cause with hungarians, arguments are deemed sporting events. Mother weeps, father amuses himself with teaching the camp director choice hungarian obscenities.
Me, I attend school in german. And on holidays I am put on exhibit dancing rustic folk dances with a wine bottle on my head.
In the meanwhile, father’s skills in matters of hungarian language become popular. Here comes a swedish red cross rep and says he’s interested in higher learning. Okay, says father, but then how about a swedish visa. That’s hard, sighs the swede, cause everyone hates hungarians. We for example, only take persons with life threatening illnesses. That’ll be just fine, says father, look at mother there in the throes of fatal weeping. Don’t you think a rest in a fine swedish sanatorium would do her some good. Well, says the swedish rep, maybe it could be arranged, but then you’ll have to teach me something extremely exotic. Cause me, he says, I like to deeply explore foreign cultures. And then father reaches deep indeed and brings forth the most exotic of exotic cultural treasures, hidden gems from within, ancestral bon mots gingerly cradled all the way from his village of birth, exotic Babocsa, population 500, paragon of extreme hungarian cultural endeavours.
Once in Sweden, mother is carted off for a rest cure at a sanatorium. Father and I to a cute little refugeecamp by the sea. We have ourselves a great time cause no more hairbrushings and such, seeing as hygene is also resting with mother. After three weeks, mother is released from the sanatorium and continues where she left off. Weeping, she shakes the sand out of the family underwear and brushes the knots from my hair.
It is very nice in Sweden but fucking dull. Having nowhere else to go, we hang around for four years. No one to teach hungarian to cause the swedes are a very polite people. They quite politely hate all foreigners.
Me, I attend school in swedish. There are no religion classes and also no dancing.
After a while, father has had enough of all this fine innertia. He decides he wants to live in Canada. There are many refused canadian visa applications. Mother weeps. So then he decides to write a letter to the english queen. In the letter he says he has had enough of all this joking around. That he would love to leave the family underwear behind. Please allow him to live in Canada, where he, the hungarian Fischer Pista promises to sell zippers and be perfectly happy doing so, respectfully yours, your future subject, Mr. Steven Fischer. Post Scriptum, hogyha nem enged be akkor maga igazan egy hulye nagy barom es le van szarva.
And she lets him in.
The rest is less interesting. Well, okay, maybe a little bit interesting.
— © elizabeth fischer

Link Roundup

• An early memorial for Elizabeth Fischer! Some great links, memories, and commenters on this one.
• Beatrice Smartt

• Stephen Harper ban on physician assisted suicide pushes Vancouver artist Elizabeth Fischer to plan death in Europe

  Fischer’s laugh, a recognizable alto chortle, is almost as notorious locally as her dark Hungarian scowl. The only child of Holocaust survivors, she first ventured into the Vancouver arts scene by running light shows for rock bands during the psychedelic era, and then progressed into leading her own bands via punk. The Animal Slaves were an anomaly during the days of D.O.A. and the Subhumans, featuring as they did actual musicians playing morbidly intricate tunes behind Fischer’s complex and poetic lyrics; more recently, Dark Blue World fused rock energy with improv jazz, again by way of a rotating cast of A-list players, including Tony Wilson, Cole Schmidt, Skye Brooks, and Pete Schmitt. Fischer also painted marvellous if not always flattering portraits of her friends, often in acidic greens and yellows; made several memorable LPs and CDs; fought against persecution of the Roma in her native Hungary; and, more secretly, was a quietly spectacular knitter, whose crocheted “baldguy caps” are fetish objects for those lucky enough to own them.

  About assisted suicide, a subject she’s quite passionate about:

  “When my dogs got sick, I made sure they didn’t suffer,” she says. “So why can’t the same thing happen for me?”

• Elizabeth Fischer argues that jazz is the new punk—A piece from last year.
• Elizabeth’s last Facebook status update.

No More Fitting End to This Post Than This

Elizabeth Fischer singing “Learning to Live” with the Animal Slaves.
https://youtu.be/w54pzs-ImG4

Read More

Let’s look at the last few years of New York Times Bestsellers for which Ellora’s Cave is the publisher. So near as I can tell, the only author that’s hit the list with a book published by EC since February 2011 is Laurann Dohner.

NYT List Date	Book Title	E-Book List Rank
1/15/12	Brawn	35
3/25/12	Wrath	7
4/29/12	Tiger	9
5/19/12	Moon	5
9/16/12	Obsidian	8
11/18/12	Shadow	9
12/20/13	True	10
10/12/14	Darkness	8
11/16/14	Smiley	10
9/27/15	Numbers	8

Note: she’s also ranked on the combined print + e-book list multiple times, but the matching print book has not been out at any time she’s made the list, so I haven’t included those numbers. With only the e-books available, the combined ranking is more of an indicator of how well print vs. e-books did that week than about Ms. Dohner’s rankings per se.
“Yeah, well? What’s your point?” I hear you say.
I’m glad you asked.
In short, looking at Ms. Dohner’s NY Times Bestseller list positions, it doesn’t appear that the Dear Author article did any damage to her ability to make the list or her position on the list.
When I thought to look this morning and see how Laurann’s newest book was doing, I’m reminded of something Tor editor Patrick Nielsen Hayden said to me at Clarion.
To paraphrase: what you see at writing conferences and workshops and science fiction conventions is only a small part of your readership, and don’t overinterpret what’s going on in the small groups because they’re rarely reflective of one’s readership as a whole.
Let’s visualize the ranking in a scatter plot, which will make my point clearer. Note that lower numbers are better.

In a nutshell, compared to the e-book market as a whole, Ms. Dohner’s e-books are not faring worse after the EC layoffs and Dear Author’s Curious article than they were before.
For the last table, I’m not a statistician. That disclosure out of the way…here’s what I know.

Before Layoffs/DA Article	After Layoffs/DA Article	Before & After Combined
	E-Book		E-Book		E-Book
Mean	11.9	Mean	8.7	Mean	10.9
Median	9	Median	8	Median	8.5

To translate that into English: on average, Laurann Dohner’s e-books rank 3.2 places higher (11.9 before vs. 8.7 after) on the New York Times Bestseller list after the layoffs and Dear Author article than before. The median of is one place higher (9 before vs. 8 after).
None of which means sales are necessarily higher, just that they’re strong relative to the other contenders in the market.

Ellora’s Cave’s Claims About Reversions

In EC’s filing objecting to Defense’s Motion for Summary Judgment, Ellora’s Cave had the following to say:

In the first eight and a half (8 1/2) months of 2014, prior to Lampe’s bankruptcy scare, Ellora’s Cave had a total of 154 books go out of print for various reasons—mostly sales below threshold for rights reversions. In the twelve days between Lampe’s defamatory blog and the filing of this action, Ellora’s Cave had requests for reversions of 404 titles, an astronomical increase. Since Lampe’s defamatory blog, Ellora’s Cave has reverted over 1250 more titles and still has requests that it is working on. In the one year since the defamatory post, Plaintiff has had almost double the number of rights reversions than it has had in its entire 14-year history.

cough

The Bankruptcy “Scare”

Let’s look at who created that bankruptcy “scare,” shall we?
On August 19th, Dear Author republished the layoff letter Patty Marks had sent to the EC biz list that had previously been published on Absolute Write. It included this choice quotation from Patty Marks:

We are not bankrupt (rumors) and are not in any kind of shape to even file bankruptcy.

Many of us read that as: “we are in too poor a shape to file bankruptcy.”
Many of us also saw that article signal boosted onto The Passive Voice, where the commenting got quite spirited. Many of us read and latched onto antares’s comment, specifically:

I used to do bankruptcy law.
Based on my experience, if I saw my publisher put out that statement, I would immediately sue to get my rights back.
What do I mean by ‘immediately’? I mean today. I want my suit going forward and notice served before they file for bankruptcy. Maybe I can get relief from the stay to litigate in state court. Maybe not and I’ll litigate the suit in bankruptcy court. But I bet when I offer to buy back my rights and put money on the table, the trustee will settle.
‘[N]ot in any kind of shape to even file bankruptcy.’ How do you know unless you have consulted a bankruptcy attorney? And I think this statement is in error (best case) or deliberately misleading (worst case).

Later on, antares clarifies in another comment:

Look, in an earlier comment I wrote that I would file a suit against the publisher immediately. Why?
To get my rights back? No.
Then why?
To improve my position against the other creditors.
Once the publisher files for bankruptcy protection — and the minute a business owner uses the B word I know he’s gonna file, it’s just a question of when — the writers no longer have rights. Yeah, you got the copyrights, but you licensed some of those rights to the publisher. Those licensed rights are now assets of the estate. The court’s duty is to equitably divide the assets among the creditors. If you are due royalties, you are an unsecured creditor. Maybe there is some entity in the bankruptcy food chain lower than an unsecured creditor, but I never saw such.
My suit leaves me still in the unsecured creditor category, but, as Orwell said, some animals are more equal than others.
I know of bankruptcies that paid a hundred cents on the dollar. Never had one myself. I also know of other suits that paid a hundred cents on the dollar to, say, eleven of twelve members of the creditors committee and screwed the twelfth with a 2¢ on the dollar payout.
As for filing bankruptcy only when you are insolvent . . . no. That’s the worst time to file.
Bankruptcy is a tool. You can use it to break contracts. To me, it is the start of negotiations.
If you 1) have a contract with EC, 2) are owed money by EC, 3) know two other writers whom EC owes money, and 4) want to get really nasty with EC, ask a bankruptcy attorney about an involuntary bankruptcy.

And yes, antares is exactly right: you want to jockey position against other creditors if you believe there are not enough resources to pay everyone. I believe this is one underlying concern of Ann Jacobs’s Motion to Intervene and her counterclaim.

The Reversions Numbers Game

So there are three reversion numbers given in the EC paragraph I quoted:

• 154 books go out of print in the first 8-1/2 months of 2014, mostly because they were below sales threshholds.
• 404 books had reversion requests between Jane Litte posting TCCoEC and the lawsuit commencing (12 days).
• Since TCCoEC, Ellora’s Cave has reverted more than 1250 books, more than in its entire history before TCCoEC. (Note that this probably includes a significant number of the 404 immediately preceding.)

Those 1250 books were reverted for one of the following reasons:

1. Low sales. Since they weren’t selling, I don’t see how Ellora’s Cave can or should complain about these. I also expect that this is the largest category. These only take people points because they should have been reverted long ago when there wasn’t a stampede.
2. Buyout of contracts, which netted Ellora’s Cave an average of several years of expected royalties—thus they cannot reasonably complain about these.
3. Finesse, by which I mean lawsuit threats, loopholes, and generally being a pain in the ass. I expect this to be the smallest category in number of books, albeit the one that uses the largest amount of people points per book and the highest downside risk.
4. OMGWTFBBQ? Because one always needs an option like that in a discussion like this.

Option 1 is cash they’re not entitled to unless the author leaves it on the table. Given that most of the 154 were in this category, I’m betting most of the 1250+ were, too.
Option 2 is improvement of cash flow.
Option 3 & 4, well that’s just business.
None of the above are Dear Author’s fault. That’s how I see it, anyway.

Ellora’s Cave Should Have Chopped the Long Tail

First, a sanity check on the 1250+ number: as of July 9, 2014 (just over a month before the layoffs), Ellora’s Cave had 4745 titles according to All Romance E-Books and as of today, 3694 titles according to ARe. In the meantime, Ellora’s Cave has published new books, so 1250+ seems perfectly credible to me.
I wrote this piece a year ago about reversion theory, and it included this bit:

As an example, calculate how long it takes to put together all the royalty information, divide by the number of authors. Figure out how much you’re paying the people who do that work, including cutting the checks. Triple that cost. For the authors who aren’t making, on average, that much for the house over the last year, offer to release their titles (for no fee).

When Ellora’s Cave was having difficulty with the new royalty system and (likely) having to do everything twice? Even then was too late for this task. Those books should have been cut long enough before the transition that the work load would have decreased before the royalty system changeover started.
Suppositions for this hypothetical:

1. Let’s say (pulling a random but plausible number out of the air) that cut 50% of the 1400+ books reverted from 2014 onward.
2. We know that there were 928 authors on 7/4/14 (thank you archive.org) and 808 as of 9/29 (looking on EC’s new site). Granted, EC’s added authors in the interim, but let’s handwave that complication away. Let’s say that half the drop in authors (i.e., 60 authors) wrote those 700 books.
3. Let’s say the 154 books were averaged out between Jan and mid-Sep (154 / 8.5 = 18.1), and then since then the other 1246 evenly.
4. Let’s say they added their 349 new books evenly distributed as above.
5. Let’s say that, for books still in EC’s fold, each unreverted book has averaged sales from three outlets per month.
6. Let’s assume the early reversions have 5 book sales per month on average from a single outlet, the average sale price is $4.99, and the author earns 37.5% royalty and is paid on a post-mid-2011 contract.
7. On average, each number entered/uploaded needs to be entered once (into each royalty system) and checked once.
8. Let’s assume the data entry rate (per a GPO estimate) is 5,200 keystrokes an hour, and that each piece of data contains an average of six strokes/digits/letters. So, 1,000 pieces of data x 6 digits / 5,200/hr = 1.15 hours.
9. Assume a random Akron-area rate I found for skilled data entry/bookkeeping at $13.50.
10. Using the number of pieces of data for each book per sales outlet here (i.e., 7)…
11. I’m not assuming any information about those who bought out their contracts, because what I’m looking at is how much it cost to just produce royalty statements, not how much is paid in royalties.

We now have enough information to do this:

The tl;dr version: It would cost an estimated $28,378 (times two for two royalty systems) in bookkeeper/data entry costs to pay royalties to Ellora’s Cave authors since January 2014 to the end of August 2015 (assuming no backlog and assuming all were actually paid).
If EC had instead cut the list early when the accounting system was going in, they would have lost an estimated $1,777 in royalties, but would have saved an estimated $2,839 (times two for two royalty systems) over that period. So, net savings of $3,901.
Like I said, chop the long tail.

While I’m at it, The Kicker

I seriously, seriously underestimated how many pieces of data Ellora’s Cave would need in order to prove substantial truth. Why?
I didn’t know about the mid-2011 contract change and how it could create accumulating debt coming into 2014.
Therefore this needs to change:

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.

Let’s assume an average of 4000 books, and we’re going to have to look from mid-2011 to the end of the lawsuit. So it’s already four years and a quarter.
Let’s assume 3 stores per book.
4,000 x 3 stores x 7 pieces of data = 84,000 pieces of data per month. Times 51 months = 4.28 million pieces of data. (Why 51 months? Damages calculation assuming they’re able to prove things substantially true.)
4.28 million pieces of data x average of 6 chars / 5,200 entered/checked an hour = 4,943 hours at $13.50 is an absolute minimum of $66,731. Just for the data itself, not for the interpretation of it. Not for the double-checking against vendor (e.g., Amazon) records.
Good luck with that.

Read More

Are you an Ellora’s Cave Writer who: asked for your rights back as a response to this Jaid Black post (August 12, 2014)?
For context, that would be the week before the editor (and other) layoffs, before the Curious article by Jane Litte, and before the lawsuit.
If so, Dear Author’s defense would like to hear from you. Please email me (deirdre@deirdre.net) or ping me on Twitter, Facebook, or AbsoluteWrite.
(They may still want to also hear from authors who requested reversions for reasons other than the Dear Author Curious post, too.)

Throwing a Bone to Everyone Else

Jaid Black and Richard Stansbury have a new project: Serial Killers Anonymous. It’s about a bunch of serial killers who meet in a group. You know, like twelve step. It gives a date of June, 2015.
I don’t want to say it’s been done before, but there’s an identical title and similar concept from this 2013 posting by Alexander Williams.
There is an in-development title of the same name listed on IMDB, but whether it’s about Alexander’s script or Jaid and Richard’s (or someone else’s entirely), I could not say. The production company given is Orchard Place Productions which is a Pittsburgh, PA company. Their web site does not list SKA, however.
The movie they released last month, though, featured this song from Supervoid, which is a little hard for my taste. Good though.

Read More

Some more action on the Ellora’s Cave vs. Dear Author case filed in court over the last couple of weeks:

1. Motion to add RWA Executive Director’s Statement to Defense’s Summary Judgment Motion
2. Ann Jacobs as Counterclaimant—additional documents filed by, well, everyone
3. Motion for Further Discovery filed by Dear Author
4. Court hearing scheduled for October 8 on discovery dispute (note: there have been requests to reschedule on Oct 22 or 23)
5. Julie Naughton’s Declaration (will cover in a later post because this is 2800 words and I hadn’t started on it yet…)
6. Plaintiff’s Opposition to Defense’s Motion for Summary Judgment (will cover in a later post)
7. In non-legal news, Ellora’s Cave books have disappeared from Amazon Australia and Amazon Netherlands, and many books have disappeared from the Amazon India site
8. Jaid Black facebook timeline blips in and out of existence again

For those of you hanging out on #notchilled, some of this will be very old to you, but I’ve had the post half-written for a while.

Motion to add RWA Executive Director’s Statement to Defense’s Summary Judgment Motion

This motion was filed on September 15th as document #54. The interesting part for the onlookers isn’t the procedural part in the motion itself, but the newly revealed information in RWA Executive Director Alison Kelley’s declaration:

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.”

As a reminder of the timeline in this case:

1. On August 18, 2014, Ellora’s Cave laid off many of its staff. This was reported by Dear Author’s Janet the following day.
2. On September 14, 2014, Dear Author published The Curious Case of Ellora’s Cave (sometimes abbreviated TCCoEC on Twitter) by Jane Litte.
3. On September 27, 2014, Ellora’s Cave and Jasmine Jade filed suit against Dear Author and Jane Litte.

In short, it seems…hmm, how does one phrase this?…stretching credulity that Ellora’s Cave did not know there were issues in royalty payments prior to filing the lawsuit.

Getting Behindier

Let’s take a new look at Ann Jacobs’s counterclaim, specifically bottom of p. 4-top of p. 5 (note substitution of her pseudonym for her legal name):

Multiplying the cover price ($5.95) times the contractual royalty rate (37.5%) times
the number of Kindle books sold (257), [Jacobs] was entitled to receive a total
royalty of $573.43 for March 2012 Kindle sales of In His Own Defense.
However, Ellora’s Cave paid [Jacobs] a royalty of only $77.49. The reason for the discrepancy is that in March 2012 Kindle copies of In His Own Defense were sold at a substantial discount from the cover price, and Ellora’s Cave improperly calculated the royalty based on the sale price rather than cover price.

In other words, with the receipt of the check for March 2012, Jacobs claims that she didn’t receive the full royalties she was due.
Now, had that been, say, a car or mortgage payment with certain banks, the monies received would have been put aside into an escrow account until the full payment is received and then the monthly payment’s applied when it’s received in full.
Something like this:

So you see, over time, even with a simple $63 transposition error, someone can seriously fall behind over time, and one month behind slips to two and three as time goes on.
It seems likely, with the $193,000 claimed as due Ann Jacobs, that there have been a number of months with shortfalls that, taken cumulatively, may well mean that as of September 2014, payments had slipped six months or more behind.
By which I mean to say that this statement by Jane Litte in the Curious post would be actually true, not just substantively true, that, as of September 2014:

There is a set of authors who have not received royalty payments in over six months.

Possibly because even checks received in, say, January through early September were paying royalties owing for more than six months, and not received for months January through early September of the current year.
In other words: if, because of a publisher’s underpayment of royalties, an author is only fully paid through (example) March 2013, receiving royalty checks in Jan-Sep 2014 does not mean those checks were for the periods Jan-Sep 2014 even if the accompanying royalty statement claims that is the case.
The check should be applied to the oldest amount outstanding due the author. That’s how a bank would do it, after all.
In other words, I believe Jane Litte’s statement is actually true in a way the defense has not yet shown. It doesn’t even matter if Jane knew about it at the time of writing. Substantial truth is a defense, and that would still be substantially—if not fully—true.

Ann Jacobs as Counterclaimant

1. Completely unsurprisingly, Ellora’s Cave objected to Ann Jacobs becoming an intervenor.
2. Completely unsurprisingly, Dear Author and Jane Litte disagreed.
3. Ann followed up with her own response to Plaintiffs.

Ellora’s Cave’s opposition claims are, essentially:

1. Motion is Untimely. As Courtney Milan has pointed out, this is the weakest aspect of Ann’s motion.
2. Ann’s motion doesn’t have sufficient common question of law. In other words, it’s off point.

Nowhere does Ellora’s Cave (or Jasmine Jade for that matter) claim Ann Jacobs’s filing was untrue.
So here’s how I feel about that. I believe the fact of the lawsuit revolves around the “set of authors” phrase I quoted above. That, were it not for that one phrase, the case probably wouldn’t exist.
Digression paragraph, bear with me: Except perhaps for Tina’s desire to see “that the offending site be shut down”, perhaps, and her statement that “one of my cases was in the UK” (leading one to wonder how many there had been, exactly). And yes, I’m 99% sure that’s Tina we’re talking about: See the email address at the top of p.22 of this Brashear v. Ellora’s Cave case and then this page giving the same email address on the same site (not to mention the purpose of the site, one of Tina’s interests). And, if not Tina, it’s someone at EC who was also involved in the Brashear litigation. End digression.
Given that EC isn’t opposing the substance of what Ann is claiming, that makes it look even more likely that Ann’s claims are correct than if EC had filed nothing.
Ultimately, Ann Jacobs’s case is about the heart of the truth of Dear Author’s statements. As I pointed out above, questions about royalties paid to Ann in 2013 (or even earlier) are crucial to understanding whether any checks issued to her in the first 9 months of 2014 were in fact covering payments due in 2014—no matter how much Ellora’s Cave wants to flail madly in their filings and say prior years are not relevant.
As I’ve pointed out in an earlier post, “A set of authors” could be a set of one, in which case Ann’s factual situation could settle the truth of the underlying claim all by her lonesome.
If so, then fighting Ann’s joining the case means committing to massively higher expert and legal expenses to prove that all 900+ EC authors in September 2014 had been paid for not just all months in 2014, but that they were not in arrears to any author causing 2014 payments to be applied to earlier months and even years. Your call, EC.

EC Filing WTFery

Most WTF moment in the EC brief was this little gem at the bottom of p. 1:

Permissive intervention by a nonparty to a pending case is governed by Fed.R.Civ.P. 24(b). A denial of permissive intervention should not be reversed except for clear abuse of discretion by the trial judge. Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 161 (6th Cir.1987)).

I just can’t even with that cite. This might be relevant if Judge Adams had already ruled and the motion were being appealed, but it’s not relevant at this point in time.
The ruling is about May Company’s (this is an old case) attempts to unseal records from a case that was already closed so it could have them for discovery on the same issue. It wasn’t about a party intervening as a claimant. However, it was a 6th Circuit ruling that reversed the district court’s ruling anyway. Like, dude, I don’t know why you picked it, but that case ruling is the exact opposite of the part you cite.
So, Mastrantonio’s chosen case is cited by a Larry Flynt (yes, as in Penthouse) ruling from the 8th circuit. Let’s look at an excerpt of that:

The appellees assert that the district court did not err in denying Flynt’s motion to intervene under Rule 24(b), and seem to suggest that since Flynt admits he could file a separate lawsuit to address the merits of unsealing the judicial records in question, his rights of access are not harmed. We disagree and find Rule 24(b) intervention an appropriate procedural vehicle for parties seeking to intervene for the purpose of obtaining judicial records.
Given the district court’s terse orders denying Flynt’s motions, we are left to some degree to speculate what the district court meant when it said “[a] generalized interest in a subject of litigation does not justify intervention.” To the extent the district court denied Flynt’s motions because it believed Rule 24(b) intervention was the incorrect procedural mechanism, the district court applied the incorrect legal standard in holding that Flynt’s generalized interest in the subjects of the Zink and Ringo cases did not justify intervention under Rule 24(b). Normally, parties seeking permissive intervention pursuant to Rule 24(b) must show: (1) an independent ground for jurisdiction, (2) timeliness2 of the motion, and (3) that the applicant’s claim or defense and the main action have a question of law or fact in common. United States v. Union Elec. Co., 64 F.3d 1152, 1170 n.9 (8th Cir. 1995).

As a background, the cases Flynt tried to intervene on were those of his shooter.

In his motions to unseal, Flynt stated he had an interest in the sealed records as a publisher and as an advocate against the death penalty. Flynt also said he had a heightened interest in these cases because Joseph Franklin, a man who had confessed to shooting Flynt, was an inmate on Missouri’s death row and a plaintiff in both cases. Franklin was executed on November 20, 2013, and on that same day the district court denied Flynt’s motion to intervene in the Zink case as moot.

Yet, in the Flynt case, the appeals court reversed and allowed Flynt to intervene.
Which still isn’t relevant to the Ellora’s Cave v. Dear Author case, because the motion to intervene was only about access to discovery and/or records. It was also granted after the dude had been executed and that was considered sufficiently timely.
Maybe I’m expecting too much. 😉

The Timeliness Dig

Mastrantonio has a snarky little footnote:

The timing of the filing is curious. Intervenor acknowledges that the discovery deadline has passed and apparently seeks to use this intervention as a way to reopen discovery. Motion to Intervene, Doc 40, p. 2.

Which says (emphasis added):

The intervenor additionally notes that while the preliminary discovery deadline has recently passed, it would appear from the defendants’ recent status reports (such as dkt. 38 and dkt. 39) that no representative of the plaintiff has yet been deposed and that relatively minimal paper discovery has been produced by the plaintiff.

That word. Preliminary. It does not mean what you think it means.

Motion for Further Discovery filed by Dear Author

So, there’s a discovery dispute. Are you as unsurprised as I am? It’s over the word—I know, I know, I’d never sell a story with foreshadowing this heavy handed—preliminary.
I agree with Courtney Milan that it doesn’t seem like the whole story is in the filings, so we’ll just have to see what happens with the upcoming hearing.

Ellora’s Cave Books Disappeared from Three Amazon Regional Sites

1. Go to amazon.com.au.
2. Search on Ellora’s Cave.
3. How many search results do you get?

Repeat for amazon.nl and amazon.in. Compare with the same search on amazon.com (or .ca, .co.uk, etc.).
Note that .au, .nl, and .in are the three most recent country sites for Amazon: Australia, Netherlands, and India. (Amazon has separate retail websites for United States, United Kingdom & Ireland, France, Canada, Germany, Italy, Spain, the Netherlands, Australia, Brazil, Japan, China, India, and Mexico.)
What does this mean?
I’m not sure. I held off posting to see if something else would come up.
Knowing that Laurann Dohner had recently had a new Ellora’s Cave release, I checked out her FB page and found this:

But it’s not just affecting Laurann’s books, but those of all current Ellora’s Cave authors.
Nevertheless, the promise of some canned statement tempted me, so I wrote to Amazon PR:

Dear Amazon PR,
For almost a year, I’ve been reporting on the lawsuit filed by Ellora’s Cave against romance industry blog Dear Author and its founder Jane Litte (pseudonym for Jennifer Garrish-Lampe). https://deirdre.net/tag/ecda/
It came to my attention today that Amazon.com.au is no longer offering Ellora’s Cave titles except for three published very recently: Myra Leigh (Maddening Desire), JL Taft (Burning for the Fireman), and Tina Donahue (Wicked Times Too).
It’s my understanding that Amazon.com.au customers who’ve written in have received a prepared statement about why books from some of their favorite Ellora’s Cave authors aren’t available from your Australian store.
Does Amazon have an official statement on the matter?
Thank you in advance,
Deirdre Saoirse Moen

I received no response, however those three titles disappeared from Amazon AU within two days.
Then I decided to do a customer service chat on Amazon AU (emphasis added on key line):

You are now connected to CS from Amazon.com.au
Me: Can you tell me why Ellora’s Cave (publisher) books aren’t on Amazon.com.au right now? Laurann Doehner just released a new book and none of her books are showing.
CS: Hello, my name is (CS). I’m sorry to hear about this. I’ll be glad to help you.
Me: Thank you.
CS: Please allow me a moment while I check this for you
Thank you for being on hold
I am sorry to inform you that the titles of these books are not available due [to] publisher restrictions.
Me: Thank you for your help, (CS).
CS: I regret to inform you that we’re only the online retailer and the availability for Kindle content mostly influence the publisher decision who are the owner of the Kindle content. I hope you’ll understand our restrictions.
I will immediately forward this to the publisher to let them know you are interested in the availability of their titles.
Me: Thank you.
CS: I would request you to give us sometime while we work with publishers actively on this issue.

On September 8th, Tina Engler emailed the biz loop:

Sent: Tuesday, September 8, 2015 4:58 PM
Subject: [ec_biz] Amazon AU
We are aware of the situation and are handling it. Our rep at Amazon has her team investigating this; we’ll report back to you when we hear from her.
Tina

On September 9th, Raelene sent a longer email to the biz loop:

Sent: Wednesday, September 9, 2015 2:50 PM
Subject: [ec_biz] Update: EC books on Amazon AU
Amazon informed us this afternoon that they have found a glitch in the payment system for publishers who are participating in the new program EC moved to in mid-July. (See ec_biz announcement of June 29, 2015.) They say this affects only the newer Amazon territories — Australia, Netherlands and India; all other territories are fine. Because Amazon’s software isn’t able to correctly generate payment information for this publishing program in those territories, the territories temporarily removed books from sale.
Amazon’s development team is investigating a workaround until they can make the needed software changes. Obviously everyone – Amazon and the publishers in this program and all authors – want to get the books available for sale again as quickly as possible in the affected territories. I feel confident Amazon is working hard on the problem. They will be giving us an update end of day tomorrow. We will let you know when the problem is resolved. In the meantime, you can certainly suggest readers purchase from the EC webstore (it’s then easy for them to convert the file onto their Kindle).

See what I mean about promoting buying from their own web store? When they’ve burned customers before by not restoring their books (like mine) after migrations? Where there’s no external audit information available for authors to discover in the case of hinky royalties? Yeah, no.
As far as Raelene’s statement goes, yes, Netherlands, Australia, and India are the three most recent Amazon stores. The next-most-recent is Mexico. However, I find it difficult to believe that Amazon would put a publisher contract in place if they didn’t have the means to use it with certain stores yet.
I’m not aware of any later statements on this topic by Ellora’s Cave, and it’s been going on for more than three weeks at this point.

Jaid Black’s Facebook Is Back…and then it’s not.

Jaid Black’s facebook page was back for a few days, then blipped back out, quite possibly to screencap posts for plaintiff’s filings.

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This was an interesting Google find that you can locate by searching on: USDOT Ellora’s Cave and clicking on the fmcsa.dot.gov link on the first page.


The “OOS” (Out of Service) category column has an entry which states: New Entrant Revoked – Refusal of Audit/No Contact and the “OOS Date” (Out of Service Date) is November 17, 2008.
Per the MSCIP Step Chart, which explains the various possible explanations that appear in the “OOS” category column. While there is no perfect match, this appears to most closely match the description for Step #63.
But what does it mean?
I believe it may be about the Ellora’s Cave bus.

Per the USDOT website: > Apart from federal regulations, some states require commercial motor vehicle registrants to obtain a USDOT Number. These states include:

[…]
• Ohio

Per that, it appears that any commercial registration in Ohio requires a valid USDOT number.
Note that this isn’t a USDOT number for the vehicle, but rather for the carrier. So if Ellora’s Cave had, oh, any commercial vehicle registered to the company, they’d need to have a current, valid USDOT number with no Out of Service Orders.
Like, say, if they owned a bus.
It does seem odd, given that the description for Step 63 says that yes, the carrier’s vehicles would be targeted at roadside, and yes, deny registration, that this situation appears to be unaddressed after almost seven years.
There’s a formal process for issuing an out of service order, detailed here. It just strikes me that it’d be the kind of thing that’d be hard to miss.
It’s not unheard of for government sites to be incorrect, though, so I don’t want to read too much into it.

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Dear FDA,
Sadly, I can’t attend the meeting in College Park, Maryland today regarding public comments in preparation for the International Cooperation on Cosmetics Regulation conference in November, but I’m emailing my input.

Issue 1: Sunscreen Approval

My first issue: the United States treats new sunscreen UV filtering agents as though they are new drugs, where the industry leaders (meaning: EU, Japan, Australia, and Korea) in sunscreen research and development treat them as cosmetics. Therefore, there is a huge burden in bringing new UV filtering agents to market.
Thus, the United States lags almost two decades behind these other countries in sunscreen agents. In the last ~18 years, we’ve had one UV filtering agent approved for one single SPF 15 (!) sunscreen.
While I can certainly see reason for caution, we’re far more permissive in other things that go directly on a consumer’s skin which may not provide the results alluded to by the marketing hype.
If a UV agent’s already approved in the EU and Japan, how about we allow it to be used in the US?

Issue 2: Allergens

I know the cosmetic industry will never agree to this, but I have to bring it up: it’s easy to label cosmetics for things like hydrolyzed wheat protein and hydrolyzed wheat gluten—because they’re used in almost zero cosmetics. Though, as a celiac, I do appreciate the labeling even though it’s not the limiting factor for me.
What would be hard to do is to label cosmetics for tree nuts, because that would include coconut.
Coconut derivatives are in almost all facets of cosmetic formulations: from the stearic acid that thickens mascara, the sodium laurel and laureth sulfate that comprises one of the first two ingredients of almost all commercial shampoos, and the surfactants, emollients, and emulsifiers that make commercial products look and feel like they do (and stay in solution through several coconut-derived versions of PEG, as well as many that are not coconut-derived).
However, it really would be nice to actually not have to look up ingredients to see if they’re likely to be coconut derived. Then I won’t have to wonder why I suddenly reacted to this one product, as I might actually know if they changed from a palm source to a coconut one.
A surprisingly large number of people react to coconut-derived sulfates and coconut-derived fatty acids, among other things, and that’s not even getting into the palm sources of, say, glycerin.
But please, given how prevalent coconut is, could we possibly consider it an allergen some day? I was married to a soap chemist and had 34 new-to-me brands of shampoo to try (driven in from Canada) to determine what my allergy was. Most people just have the mystery acne, and are given dermatology formulas that, no joke, contain more of the exact same allergens.
Thank you for listening. I’m really looking forward to hearing more of the conference’s progress.
Signed,
Deirdre

Why I Wrote In….

Two years ago, I ran out of sunscreen before arriving in the Maldives. I went to the gift shop, where the only thing they had was something they described as a “total block.” Which, short of a space suit, seemed rather optimistic and improbable.
I didn’t know how to evaluate the ingredients on the label, but I did notice that the two physical sunscreen blocking agents I knew about—zinc dioxide and titanium oxide—were nowhere to be found.
Fortunately, the hotel had another gift shop. I strolled over there, only to find that they had a very reasonable SPF 50 sunscreen.
What I didn’t know at that time was how incomplete my understanding of sunscreen was, nor why my lack of knowledge was so important.

A Quick Primer on UVA and UVB

UVB (think “burning”) penetrates the epidermis with rays between 290 and 320 nm.
UVA (think “aging”) was initially thought not to cause skin cancer. Unfortunately, it’s highly associated with cancer. It penetrates down to the bottom of the dermis. Tanning also happens with UVA, so for a long time it was thought that if you blocked UVB, you’d encourage a nice healthy tan while preventing burning and skin cancer. UVA is broken into two wavelength bands: UVA1 (340-400 nm) and UVA2 (320-340 nm).
SPF ratings are only for UVB. There is no rating system, nor any requirement to even mention UVA in American cosmetics. Sure, a product can use the “broad spectrum” phrasing, but there’s still no requirement that it be world-class UVA protection.
Japanese and Korean skin care uses a PA rating system with pluses to rank effectiveness of UVA blocking up to a maximum of four pluses. There are also other methods in use outside the US. Some are better than the Japanese/Korean system ## Why US Sunscreen Is So Awful

In the US, sunscreen is considered a drug, thus new blocking agents have to be approved by the FDA. That means a company needs to sponsor the research (which costs millions) and lead the blocking agent through the whole approval process.
Which is fine if you’re a company that is patenting a drug where the exclusivity will, one hopes, pay for the approval process.
In the case of sunscreen blocking agents, however, they aren’t patentable (they’ve been in use too long), so one company would be spending a ton of money to allow other companies to profit equally, but without having spent the cost for approval.
So if a sunscreen agent is past the useful life
Hence, there is zero corporate incentive to get new blocking agents through the approval process, and we all suffer as a result. Yay, capitalism.
Worse, there had been at least eight new (to the US) sunscreen ingredients waiting for approval for more than five years. The ironically named Sunscreen Innovation Act, passed in 2014, was supposed to help us catch up with the rest of the world.

Speaking of Capitalism…

Thus, Americans respond to signs of aging after the fact rather than with prevention. This is a big part of the reason the US share of the global botox market is predicted to reach $2 billion annually by 2018.
While botox is used in non-cosmetic procedures such as stroke rehab and migraine prevention, much of the US market is about wanting to reverse aging signs in skin—aging that could have been prevented, in part, by better sunscreens.

Chemistry: Which Agents Are Approved Where

I’m only going to show US ??, Australia ??, EU ??, Japan ??, and Korea ?? since that will cover most of my readers as well as the products I’m talking about. Heavily borrowed from the Wikipedia Sunscreen page and this skincancer.org page; where they disagree, I’ve used the Skin Cancer site’s answer. Note: I’ll use the French flag ?? instead of EU flag ?? as there is no emoji support in Mac/iOS yet for this emoji.
Korea ?? information is currently incomplete as I’m only listing agents I’ve looked up that are included in Korean sunscreens or which were on a 2008 chart. Also, as there are almost a dozen sunscreen agents on that chart approved only in Japan, I’ve omitted those.

Ingredient	Other Names	Approved In	Protects Against
4-Methylbenzylidene camphor	Enzacamene, Parsol 5000, Eusolex 6300, MBC	?? ?? ?? ?? (may be endocrine disruptor)	UVB
Amiloxate	Isopentyl-4-methoxycinnamate, Isoamyl p-Methoxycinnamate, IMC, Neo Heliopan E1000	?? ?? ?? ??	UVB
Avobenzone	1-(4-methoxyphenyl)-3-(4-tert-butyl phenyl)propane-1,3-dione, Butyl methoxy dibenzoylmethane, BMDBM, Parsol 1789, Eusolex 9020	?? ?? ?? ?? ??	UVA1, UVA2 (some sources say UVA1 only)
Cinoxate	2-Ethoxyethyl p-methoxycinnamate	?? ?? ?? ??	UVB
DEA Methoxycinnamate		?? ??	UVB
Dihydroxybenzophenone	Benzophenone-1	?? ??	UVA2, UVB
Dioxybenzone	Benzophenone-8	?? ??	UVA2, UVB
Ecamsule	Mexoryl SX, Terephthalylidene Dicamphor Sulfonic Acid	?? ?? (limited ?? use via new drug approval, L’Oréal exclusive)	UVA2 only
Homosalate	Homomethyl salicylate, HMS	?? ?? ?? ?? ??	UVB
Menthyl anthranilate	Meradimate	?? ??	UVA2 only
Mexoryl XL	Drometrizole Trisiloxane	?? ??	UVA2
Neo Heliopan AP	Bisdisulizole Disodium, Disodium phenyl dibenzimidazole tetrasulfonate, bisimidazylate, DPDT	?? ?? ??	UVA1
Octocrylene	Eusolex OCR, 2-Cyano-3,3-diphenyl acrylic acid, 2-ethylhexylester	?? ?? ?? ?? ?? (increases ROS)	UVB
Octyl methoxycinnamate	Octinoxate, EMC, OMC, Ethylhexyl methoxycinnamate, Escalol 557, 2-Ethylhexyl-paramethoxycinnamate, Parsol MCX	?? ?? ?? ?? ??	UVB
Octyl salicylate	Octisalate, 2-Ethylhexyl salicylate, Escalol 587	?? ?? ?? ?? ??	UVB
Oxybenzone	Benzophenone-3, Eusolex 4360, Escalol 567	?? ?? ?? ?? ??	UVA2, UVB
p-Aminobenzoic acid	PABA	?? ?? ?? ?? (banned in ?? because of DNA damage)	UVB
Phenylbenzimidazole sulfonic acid	Ensulizole, Eusolex 232, PBSA, Parsol HS	?? ?? ?? ?? ?? (genotoxic in bacteria)	UVB
Padimate A	Pentyl-dimethyl PABA, Amyl p-Dimetyamino PABA	?? ?? (withdrawn from ?? in 1989; never approved in ??)	UVB
Padimate O	OD-PABA, octyldimethyl-PABA, σ-PABA	?? ?? ?? ?? (not currently supported in ?? and may be delisted)	UVB
Parsol SLX	Dimethico-diethylbenzalmalonate, Polysilicone-15	?? ?? ??	UVB
PEG-25 PABA	Uvinul P-25, Ethoxylated ethyl-4-aminobenzoate	?? ??	UVA2, UVB
Sulisobenzone	2-Hydroxy-4-Methoxybenzophenone-5-sulfonic acid, 3-Benzoyl-4-hydroxy-6-methoxybenzenesulfonic acid, Benzophenone-4, Escalol 577	?? ?? ?? ??	UVA2, UVB
Tinosorb A2B	Tris-Biphenyl Triazine	?? (very new)	UVA2, UVB, limited UVA1
Tinosorb M	Bisoctrizole, Methylene Bis-Benzotriazolyl Tetramethylbutylphenol, MBBT	?? ?? ??	UVA1, UVA2, UVB
Tinosorb S	Bemotrizinol, Bis-ethylhexyloxyphenol methoxyphenol triazine, Bemotrizinol, BEMT, anisotriazine	?? ?? ?? ??	UVA1, UVA2, UVB
Titanium dioxide	CI77891	?? ?? ?? ?? (not approved in ?? as a UV filter, but permitted as a colorant)	UVA2, UVB
Trolamine salicylate	Triethanolamine salicylate	?? ??	UVB
Uvasorb HEB	Iscotrizinol, Diethylhexyl butamido triazone, DBT	?? ??	UVA1, UVB
Uvinul A Plus	Diethylamino Hydroxybenzoyl Hexyl Benzoate	?? ??	UVA2
Uvinul T 150	Octyl triazone, ethylhexyl triazone, EHT	?? ?? ?? ??	UVB
Zinc Oxide		?? ?? ?? ?? ??	UVA1, UVA2, UVB

Even excluding Japan-only sunscreen agents, there are about as many approved only outside the US as approved for the US.

Two Sunscreen Videos

The first video is from British beauty blogger Lisa Eldridge. I mention this because some of what she says is from a very EU-centric viewpoint, specifically when she’s talking about approved sunscreen agents.
YouTuber Lisa Eldridge has a rundown on sunscreens, focusing on European brands.

YouTuber faceturtle has a review of 9 Asian sunscreens.
https://youtu.be/JKAXnwoankU

Random Interesting Things I Found While Writing This

1. L’Oréal is the top nanotechnology patent holder in the United States.
2. Rick brought the Jessica Alba Honest Company Sunscreen backlash to my attention. After looking at the ingredients, I agree with much of this Forbes piece. The real problem is one of user psychology: people don’t want to be white all over from their sunscreen. By using only a single physical filter (zinc oxide, famous for lifeguards’ white noses), they aren’t offering protection to people who spread it too thinly. So, an admirable goal that has issues in the real world.
   Also, apparently there was a reformulation, then the reformulation led to unexpected drops in effective SPF due to the product settling out of emulsion (it sounds like from my reading of the article, anyway). How many people obey labels to shake the bottle?
3. My current sunscreen, The Face Shop Natural Eco Sun Sebum Control Moisture Sun SPF 40 PA+++ uses only chemical sunscreen agents, four of which are UVB (it does have good UVA coverage through the fifth agent). Huh.

What Sunscreens Do I Use?

I have three.
The Face Shop Natural Sun Eco Sebum Control Moisture Sun SPF40 PA+++ is a Korean Sunscreen also available in US Face Shop stores. It only uses chemical filters.
La Roche-Posay Anthelios XL has some of the L’Oreal patent goodness (and nanotechnology research goodness) in it. Not for sale in the US, but you can import it from overseas; it’s cheaper to import from Europe, IME.
Bioré UV Aqua Rich Watery Essence SPF 50+ PA++++ is also really awesome.

Questions? Comments? Errors?

What sunscreen do you like?

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I’ll post Tina’s email first, then respond to her points.

From: (Tina Engler)
Sent: Thursday, September 3, 2015 2:39 PM
Subject: [ec_biz] legal update
We will not be responding in a public venue to the “trial by social media” smear campaign being staged by the defendant and her counsel and will instead keep this in the court and on our private business loop. While we cannot respond to most of this, period, we can respond to some of it.

1. Stating that I destroyed evidence is a complete and total LIE. There was no evidence to destroy. Had the defendant and her counsel truly believed that, they could have subpoenaed Facebook’s records just as they did Twitter’s records.
2. I have not refused attempts at discovery. On the contrary, defendant’s counsel failed to request discovery in the timeframe set forth by Judge Adams. It is my understanding the defendant’s counsel is filing a motion to extend the discovery period; whether or not the motion is granted is up to the court.
3. Depositions are never fun and are by their very nature highly intrusive. That said, WE did not release the deposition transcript. I’m assuming the defendant released it to garner sympathy, but that is my conjecture.
   I have only read bits and pieces of the deposition so I’m unaware of most questions and accompanying answers, but one of our authors brought to my attention that our lawyer asked the defendant her daughter’s name. Asking her such a question is not a “low blow” as I was asked the same question the last time I was deposed. It’s not as if we’re putting any of this out there on social media anyway; the defendant is the one doing that. As far as “low blows” and children go, my kids have been smeared on social media by your peers, and a couple of you, so don’t go there with me. The defendant herself published my home address on her website for any weirdo to see when my youngest daughter was 11 or 12 years old. (It’s still on her website last I looked.)
4. The 6-page motion we filed was NOT for summary judgment on our case against the defense, but rather for summary judgment on the defense’s counterclaim. It was short because, per my understanding, the counterclaim was short.
5. The defense counsel’s most recent legal track record involving ethics violations and breach of fiduciary duty:

http://fightcopyrighttrolls.com/2015/07/09/marc-randazza-must-pay-600k-for-clear-and-serious-breaches-of-fiduciary-duty-against-his-former-client/comment-page-1/
In closing, we will provide you with a bit of our side of the situation within the 30-day time frame provided by the court for response. The bulk of our evidence will be presented at trial in March.
Tina

My Responses

1. Tina’s statement about subpoenaing facebook assumes that facebook actively keeps old deleted posts and accounts. I’m sure a company as large as facebook does have a retention policy, but it’s not infinite. However, if EC/JJ hadn’t sued about the shopping trip allegation (and I fail to see how the company has standing to do so given that the alleged activities did not take place in Ohio and did not involve a corporate officer acting in her official capacity), then Tina’s facebook postings would not be relevant at all.
   Added this paragraph: Commenter Not Really Anonymouse commented with this facebook link that covers their retention and subpoena policy.
   Added this paragraph 9/23: Apparently, Tina’s facebook page is back.
   I had decided against posting something Tina posted on her FB because it was more about Tina the person than about Tina in her capacity within EC, but it’s relevant tho this point, so I’ve added it in its own section below, and I’ll let you draw your own conclusions.
2. The timeframe was actually agreed upon by both parties (not set by the judge), and discovery is not over per that timeframe. Here’s the actual document. Note that there is no final date for non-preliminary discovery.
   (added Sep 11) Also note that per plaintiff’s own filings, what Tina says about discovery is untrue. Note that Randazza asked for a deposition of EC, presumably Tina, on February 26th. Note: PMK = “person most knowledgeable.”
3. I agree that depositions are intrusive. As I said the other day on Twitter, depositions are the real horror show. Attorneys have wide latitude to uncover discoverable information.
   It’s also possible, given how small family-owned businesses work, that a minor child could be involved in operating a small business. For example, in my teens, I worked for my family business making fighter aircraft cable tension regulator bushings. Had there been a lawsuit related to my work, it’d absolutely have been relevant to depose my parents about me.
   That said, I do believe that asking specifically name and age is douchebaggery. “Is your child a minor?” “Are they involved in operations of Dear Author?” Those questions would have been fine, and relevant. If the answer to the second question had been yes, then maybe asking a name would be relevant, but it’d still have been possible to use “your child” instead when asking questions.
4. Tina’s correct. I had intended to get the actual full document title phrasing from the docket, but I apparently didn’t, so my apologies for that accidental omission. I’ve also made a correction in this post.
   That said, if discovery’s genuinely over (as EC claims), why didn’t they file for a Motion for Summary Judgment on the entire case?

5. There are definitely some troubling things mentioned in the interim arbitration award, and an alleged version of that 26-page document can be found here, but it’s also fairly obvious that there was some serious WTFery going on at that job. Here’s an article that mentions some of Randazza’s claims and a few excerpts:

   • Those activities, according to the arbitrator’s decision that was widely disseminated just recently through the adult entertainment B2B community, included testimony by Randazza that his office at the studio was used for a porn shoot and that he was upset after he drove two studio officials in the backseat of his car while they proceeded to give blow jobs to each other.
     I’ve worked for a legal department (more than once, most recently as a DBA contractor for Honda North America) and, uh, lawyers don’t like it when you use their offices for anything, let alone a porn shoot.
   • Judge Stephen Haberfeld, the arbitrator, however determined that, contrary to Randazza’s central contention in arbitration, the termination of his employment had nothing to do with a sexually charged work environment.
   • In response to the lawsuit and a press release distributed to the adult entertainment community by Corbin Fisher last week, Randazza’s publicist, who submitted a press release on behalf of the attorney, noted that Haberfeld’s award is not a “final result.”

   There have apparently been over ten thousand hours of work on this, and it’s a big mess. While it looks bad for Mr. Randazza, I’m sure he wouldn’t have filed the suit if he didn’t think he had a better than even chance at getting a resolution in his favor. Interim award is not a final award, so it’s a little early to crow about it, and especially early to troll the #notchilled hashtag with. (Though, in fairness, that may not have been Tina.)

Tina’s Last(?) Facebook Post

I’d previously commented that I didn’t feel right posting this because of the content. However, it’s directly relevant to Tina’s (and my) point #1 above, so I’m posting it.
I received this on August 21st, but it may have been posted on the 20th. Somewhere around there.
Emphasis added.

It’s unfortunate that only hindsight is 20/20. Why can’t foresight work that way? I regret the day I read my first romance novel, but I especially regret the day I published my first book. It was genuinely the biggest mistake of my life.
I should have taken that full scholarship into the phd program I applied to because my life might have turned out so differently. I might never have developed panic disorder. I definitely never would have had to deal with a horde of self-entitled, paranoid, liars… At least not outside of a lab setting. My word, honor, & integrity wouldn’t have been questioned, let alone assaulted, on a daily basis, because I wouldn’t be in a profession that is glutted with conspiracy theorist women who thrive on conflict, gossip, drama, & inflicting pain on others.
Growing up, my biggest fear was living a normal life because it felt like mediocrity; today I would give anything to have that. I used to feel sorry for women who chose unpaid professions like being a housewife; now I envy them.
Point blank: I’ve made countless mistakes in life, but I’ve never cheated anyone. I don’t have a poker face or a filter; people always know where they stand with me and they always know where I stand on every issue that matters to me. I’ve never kept skeletons in the closet because I have no filter and because I never understood the utility in pretending. I might be a handshake kind of bumpkin, but I’m not a swindler.
The past 11 years have been… Not worth this. I realized tonight that I’m constantly throwing good energy after bad by giving a shit about my completely annihilated reputation. The chips are going to have to fall where they may… I just do not care anymore. Even if I wanted to care, I’m too tired to.
Some of you will view me as depressed; some of you will view me as a sympathy seeker. Truthfully? I’m too numb to feel anything at all so view me as you will.
I’m leaving this post up until I wake up and then I’m closing all my social media accounts. That should give plenty of time for friends, family, & gossips alike to read this. I’ll miss the interaction with friends and family, but you know how to find me. To my readers…
I’m sorry I let you down by not finishing the Trek, Viking, & Death Row series. All I ever wanted to do is write, but for the past 11 years it’s been nothing but one thing after the next. (I’m not the type of person who can write while constantly feeling anxious.)
It is for this reason that I am pulling my Trek story out of the “Alien” anthology. I don’t want to hold up Laura, Amy, and Tara by forcing them to wait on me to finish edits that could take me who knows how long. Plus, as I’ve already told my mom, I decided not to chance poisoning the success of these 3 talented authors by having their names tainted by mine.
Laura can & will carry the anthology solo. I wish I had her strength & resilience. A stroke doesn’t stop her, nor do the endless unchilled who threaten her on a daily basis and email her things like “I wish you had died when you had that stroke so EC would go under and I can get my rights back.” (All that just for being a professional who doesn’t trash talk on social media or hatch plots to get out of her contracts.)
At any rate, this post is turning into a biopic dissertation so I’ll end here. I will miss all of you I regularly interact with… And I genuinely mean that. It’s just time for me to do a Kenny Rogers and “know when to walk away, know when to run.”
Take care of yourselves. Hopefully we’ll meet again. xx

Now, did Tina delete the account and/or posts? I don’t know, but people said they could no longer reach her account, and neither could I.
What I do know: generally, deleting (or hiding) anything possibly relevant once one is in litigation isn’t a great idea.
Draw your own conclusions.

One Last Thing: A Pro-EC Twitter Account Trolling #notchilled

I hadn’t realized the @Retireme15 account had posted to #notchilled previously in April, but I don’t catch everything.
I’ll just note two things: this tweet was posted about ten minutes before Tina’s email to the biz loop was posted; it was posted at a time when another pro-EC and pro-STGRB tweeter was purportedly active.

(Click image for full size; troller’s at the bottom.)
And a response from the blogger who posted the article Tina links to in the first place:

@Retireme15 @courtneymilan To be clear, while I have a low opinion on Randazza’s ethics, I think as an attorney he is…

— Fight © Trolls (@fightcopytrolls) September 3, 2015

@Retireme15 @courtneymilan …very capable of handling this frivolous case (and @ellorascave deserves to lose miserably). #notchilled

— Fight © Trolls (@fightcopytrolls) September 3, 2015

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