Some more action on the Ellora’s Cave vs. Dear Author case filed in court over the last couple of weeks:
- Motion to add RWA Executive Director’s Statement to Defense’s Summary Judgment Motion
- Ann Jacobs as Counterclaimant—additional documents filed by, well, everyone
- Motion for Further Discovery filed by Dear Author
- Court hearing scheduled for October 8 on discovery dispute (note: there have been requests to reschedule on Oct 22 or 23)
- Julie Naughton’s Declaration (will cover in a later post because this is 2800 words and I hadn’t started on it yet…)
- Plaintiff’s Opposition to Defense’s Motion for Summary Judgment (will cover in a later post)
- 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
- 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:
- On August 18, 2014, Ellora’s Cave laid off many of its staff. This was reported by Dear Author’s Janet the following day.
On September 14, 2014, Dear Author published The Curious Case of Ellora’s Cave (sometimes abbreviated TCCoEC on Twitter) by Jane Litte.
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.
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
- Completely unsurprisingly, Ellora’s Cave objected to Ann Jacobs becoming an intervenor.
- Completely unsurprisingly, Dear Author and Jane Litte disagreed.
- Ann followed up with her own response to Plaintiffs.
Ellora’s Cave’s opposition claims are, essentially:
- Motion is Untimely. As Courtney Milan has pointed out, this is the weakest aspect of Ann’s motion.
- 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
- Go to amazon.com.au.
- Search on Ellora’s Cave.
- 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). http://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.
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.