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Ellora’s Cave Sues Dear Author Book Blog for Defamation

27 September 2014

From The Digital Reader:

Here’s something crazy.

Romance publisher Ellora’s Cave has been having financial issues for the past year or so, but rather than sit down and fix them this publisher has decided that the best solution was a public and messy defamation lawsuit.

Court documents filed today in Ohio have revealed that Ellora’s Cave has filed suit against Jennifer Gerrish-Lampe, an Iowa lawyer who is better known as Jane Litte, the proprietor of one of the best romance book blogs (I did not know it was a pseudonym).

Ellora’s Cave alleges that a recent blog post on Dear Author defamed them, and in addition to suing the publisher also asks for a temporary restraining order – meaning that Dear Author might not be allowed to report that they are being sued.

. . . .

The lawsuit was only filed today, but Jane has indicated that she will fight this suit. She’s looking for a good attorney in the Akron, OH, area with experience in defamation.

. . . .

The cost of defending against a lawsuit can be onerous, leading some to give in. On the other hand, this type of lawsuit can also result in a Streisand effect, attracting even more attention to the story which Ellora’s Cave is trying to bury.

What’s more, even if this lawsuit doesn’t generate even more negative publicity for Ellora’s Cave, it will result in the public airing of all of that publisher’s dirty laundry during the discovery process. If even half of the rumors going around are true, we could well see many authors suing Ellora’s Cave for unpaid royalties.

Link to the rest at The Digital Reader

PG says truth is a defense in a defamation suit. This means that Jane gets to use the discovery phase of the litigation to force Ellora’s Cave to disclose all sorts of information, including information that shows what Jane wrote is true.

Here are some of the things that Jane has written that EC says are false:

1. That employees of EC are going unpaid.

2. That EC authors have not received their royalties.

3. That unpaid royalties, editors’ fees and artists’ fees amount to several thousand dollars.

Basically, Jane gets to find out if these and other statements about Ellora’s Cave are true or not.

As a general proposition, documents filed in litigation are public. Already, the contents of the original Dear Author post that EC found objectionable are included as an exhibit to the complaint. Everyone who reads the complaint will be able to see what Dear Author published about Ellora’s Cave.

Nate mentioned The Streisand Effect. Here’s a definition:

The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.

Here’s a copy of the Complaint:

 


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91 Comments to “Ellora’s Cave Sues Dear Author Book Blog for Defamation”

  1. Popcorn, anyone?

  2. Whoa. Sh*t just hit the fan.

  3. People in publishing need to stop doing popcorn-worthy stuff like this because man, I need to write sometimes. Sigh.

  4. Saw this yesterday. Final nail in the coffin for EC, anyone?

  5. If Jane is successful in defending against this suit, will EC have to pay her legal fees?

    Or actually that doesn’t matter, does it, because EC is broke, so she’d never see that money anyway, right?

    That makes me really sad for her.

    • According to the post on Dear Author (http://dearauthor.com/misc/elloras-cave-sues-dear-author/), Ohio will not award attorney’s fees to a defendant in this sort of suit even if they prevail. (But, as you say, Jane would be unlikely to see that money anyway even if she could be awarded it.)

      • From that same post: “EC is seeking injunctive relief (which I presume means I stop blogging about them), monetary damages in excess of $25,000 for harming their business, and identity of commenters.”

        Identity of commenters. Presumably so EC can sue them too? Or maybe just to see if any of the people who said mean things about EC are actually EC people, so they can be punished.

        I’m curious as to how EC may be funding all these lawsuits.

        • “I’m curious as to how EC may be funding all these lawsuits.”

          LOL. From all the money they’re not paying writers and staff!

      • I think what she said is Ohio doesn’t have an anti-SLAPP statute. They do, however, have a statute for the award of attorneys fees in defending a frivolous case:

        http://codes.ohio.gov/orc/2323.51

  6. Based on PG’s comments, this can’t end well for EC.

  7. Wow, yeah. The absolute worst thing you can do when breaking multiple high-dollar contracts is to get the justice system interested in the contents of those contracts. This is like a mini Harlequin suit in the making – how long before either EC gets sanctioned into oblivion for not turning over evidence during discovery to hide the fact that Jennifer’s story was completely accurate, or a class action gets started by EC authors using discovery from this case as a basis?

  8. I’ll admit, it sounds too good to be true for Jane. Which is kind of why I worry that it is too good to be true. Can EC drop the suit, no harm no foul, if it comes to its senses? Is there any reason Jane might not be able to look through EC’s books for discovery?

    • If EC dismisses the case before it gets to discovery Jane will still have to pay her lawyers for the work they’ve started on. Hopefully her lawyers will be able to come up with a reasonable countersuit beforehand, possibly summary judgment on the fact that all of her comments are backed up with documented sources and therefore cannot fall under defamation, her commenters are protected by DMCA section 512, or with all of the prima facie evidence perhaps they can argue that EC is a vexatious litigant and bringing a suit they know they can’t win just to harass her.

      P.S. IANAL

      • I am a legal assistant in Texas and we just plowed through with a case with a vexatious litigant. The victory was sweet, and swift as our judge was not pleased at all with, in this case, the defendant (we filed before he could). It was smart of DA to have backed up the blog posting with documentable facts. I am wondering though – here in Texas, we don’t file discovery, just proof that discovery was delivered timely. But, of course, results of discovery will be attached as exhibits to motions. So we will see eventually.

  9. If EC has money in the bank, shouldn’t they use it for paying royalties rather than filing lawsuits?

    This is also a poor decision from a marketing standpoint. Dear Author is hugely popular among romance readers. I can imagine those readers turning away from EC in droves because of this. The lawsuit could prove to be the final nail in EC’s coffin — and EC is holding the hammer.

  10. I wonder how tired the Summit County judges are getting of EC’s stunts. Yes, they do talk to each other about cases, and this isn’t EC’s first.

  11. Great JOB, P.G.
    You gotta believe the Ellora atty has got his fee up front.
    LOL

    • +1 LOL. If he hasn’t he’d better get some $$ pronto, or else he’ll be in line with all the other bankruptcy creditors!

      Q for the legal eagles here on TPV: How would a lawyer stand in the pay-out line in such an instance? My IMWTK.

      • If the case is ongoing, the lawyer is entitled to priority for fees incurred after the filing, because the suit is an asset of the debtor and needs to be maintained.

        As for the rest, that’s what retainers are for. At most, they’d be out a month’s fees.

  12. I had to deal with one of these suits dealing with the intellectual property in my family business (not just an owner, also the family lawyer!)

    1. Everything that Jane said in her post comes from public sources (previous litigation and public filings.)

    2. Yes, substantial truth is a defense.

    3. Jane still needs to challenge jurisdiction via the long-arm statute. Ohio has ruled in favor of out-of-state plaintiffs, but those were against people leaving false and nasty reviews of a company on various commercial websites. I would challenge that a single post on a private blog that relied on public records is not sufficient to rise to the level of “irreparable harm.” (Commenters, don’t get personal, keep it to the public docs. Don’t drag yourselves or PG into this. A few years ago a forum got really out of hand and a mod is now paying monthly garnishments because of his statements.)

    4. You can ask for all the injunctions you want. The burden of proof is very high. Jane needs to ask for a hearing. And the transcripts of that hearing will be public record.

    5. Legal fees are difficult to recover. I fought like a demon for 6 years in 3 courts in 3 states against stuff that was just insane by an incompetent lawyer and lost my legal fees petition.

    6. And EC just made all of its books discoverable. Discovery isn’t usually made public unless used as an attachment to a motion. But the information will seep out.

    7. How awesome is it that this complaint unnecessarily attached the original posts so that a gazillion people who have never heard of Jane will now read them and a public document contains explicit erotica language?

    8. I now want to go read all the Brashear docs, including the judges order for EC to pay up.

    9. Too damn frigging bad that Ohio doesn’t have an anti-SLAPP statute. This is what those laws are intended to prevent.

    Make plenty of popcorn, this has fun written all over it.

    Terri

  13. Dear EC,

    I am not posting anything related to you or your business.

    Sincerely,
    Patty Cake

    P.S. Please don’t sue me.

    • Dear EC,

      I hope every little EC mismanagement and fib comes out, no matter how tiny. I hope you lose. Big. I hope you get counter-sued by Jane. Big. I hope a bunch of authors get together and make a big, big ruckus in public or maybe sue you, too, and embarrass you, big.

      And should I cc Interpol?

      Signed,
      Me

  14. Is it possible to do class action for rights? Could EC’s authors band together and strip them of all content?

    • I wish they would do that. They deserve to get out of the EC insanity with their rights and their heads held high.

      • I suppose it would trigger a bankruptcy. Would it be backdated, handing the rights back to EC?
        Come to think of it, I suppose an individual author could sue for reversion, citing non payment. EC might not contest, if they really do want to keep the bookkeeping under wraps.

  15. Unfortunately it looks like neither Ohio nor Iowa have an anti-SLAPP statute. Perhaps Dear Author can argue a common law right exists? I wonder if she can get the case removed to Iowa?

    EC authors that haven’t been paid should think about suing now–there are few things more onerous than having to prosecute two or more lawsuits simultaneously.

  16. http://ht.ly/C1npI

    Smart Bitches Trashy Books has a nice post with GIFs on this.

    • Yep, Barbra’s in the house, and the word is spreading.

    • Larissa and Bree’s tweets in that post underscores what Laura Resnick, Kris Rusch et al has said before — that it’s NOT reasonable to ask them to name names when talking about publishers’ misbehavior. Ellora has demonstrated that they’re wise to be so cautious.

      I’m glad that Jane and “SB Sarah” have offered their readers a way to protect their identities; Ellora doesn’t need more targets.

  17. Unfortunately it looks like neither Ohio nor Iowa have an anti-SLAPP statute. Perhaps Dear Author could argue a common law claim? I would explore the possibility of suing EC in Iowa on some basis. Perhaps she can also get the Ohio case removed to Iowa as well because that is where she lives and made the statements EC is complaining about.

    EC authors that haven’t been paid might think about suing now too. There are few things more onerous than having to prosecute two lawsuits, never mind one. The additional pressure might persuade EC to release rights.

    • We need a Federal anti-Slapp statute. Wonder why they picked on Jane when there is a lot of low hanging fruit they could have gone after instead of a smart, aggressive lawyer.

      • Agreed. I don’t know any of these people, but I would have thought a lawyer would not be a good victim for a situation like this. I’m picturing the crusader knight in Indiana Jones and the Last Crusade: “You have chosen … poorly.”

        • But part of the problem is this:

          1. Jane incorporated her blog as an LLC.

          2. Despite what SCOTUS has said, corporations are not people in that they cannot go to court without a lawyer as a pro se litigant.

          3. Jane is not licensed in Ohio, so she can’t represent her LLC as in-house counsel.

          4. Therefore, Jane must have an Ohio lawyer, even to file a motion to change venue to Iowa.

          I *cough* have some experience in this matter and dissolved the family corporation for one reason, so I could go anywhere, to any court, anytime, to defend it at minimal cost. It brings up an interesting question on the pros and cons of incorporating blogs.

          Terri

        • HAHAHAH..I totally saw and heard the knight saying that to Jaid Black holding the wrong goblet (and then she gives him the notorious finger)….hahahhaha.

      • “Wonder why they picked on Jane when there is a lot of low hanging fruit they could have gone after instead of a smart, aggressive lawyer.”

        Easy answer: EC — or the principal who owns/runs it — is STUPID!

  18. Stories like this just remind me why it’s so much riskier to be with a publisher these days. If they screw you over, you can’t even talk about it without worrying about getting sued.

    • My thoughts too, Liz. You never know whether a publisher is solvent, or not. Or when they’ll be acquired — and usually it’s when, rather than if.

      When there’s trouble, it leaves an author and his rights in limbo, and there’s not a thing he can do.

      Publishers have always treated authors (except for brand name authors) as delivery boys and girls for manuscripts. Once they get their hands on your work, and you sign a contract, it becomes theirs.

      Authors have little say, no control, and are completely at the mercy of publishers who may, or may not, know what they’re doing.

      Of course authors are scared of being sued. Even if they win, a lawsuit takes time and energy you could be spending writing, or blogging, in Jane’s case.

    • Man, that is a good point. The risk is lower with a bigger publisher, but I bet one of the Big X will have a sudden spectacular problem in the next decade. Nowhere is safe.

      • With the bigger publishers, writers used to fear being blacklisted, which I think is also terrible. And obviously there are still many writers who refuse to speak out against their publisher even now. I’m mouthy, I could never do that. It’s just one more reason why I’m SO glad I never got serious about finding a publisher. I possibly dodged a bullet there.

  19. I hope Jane sets up a legal defense fund and get scads so she can hire the sharpest lawyer in town. And I hope the Streisand Effect is spectacular and authors and artists and editors come out of the woodwork and say, “Here’s proof that what she said is true.”

    Go, Jane! (although I”m really sorry it came to this. No one wants a lawsuit)

  20. Haven’t we already seen a handful of authors going public about EC not paying them? That kinda makes me think that this suit is more about spite than defamation.

    • Jane has a large readership and she aggregates the complaints in that blog post and makes it look pretty damning. I think EC might see the authors blogs as whining that will carry little weight. Dear Author’s blog post is strong, cogent, and NOT from an EC author (ie objective), and with a large readership of book buyers. She presents a case there, actually.

      I can see why she chose DA.

      I don’t know how this will work out, but Jane has my best wishes for victory of a stunning sort. Like Jane gets bucks. 😀

    • It’s always about spite. Without anger these sorts of suits don’t happen. That’s my working theory and have yet to see it disproved.

    • It seems to me that the suit is a (misguided and ill-considered) attempt to silence Ellora’s Cave’s critics. And lookit, it hasn’t worked already.

  21. Hoooooowwwww interesting… Maybe if she doesn’t have to shut up, neither do I. I can’t wait for the outcome of this misguided, ill-informed, poorly considered, yet utterly typical lawsuit.
    Watch your back, PG. You’re probably in the cross hairs.

  22. Pretty much this thread sums up the reason that I haven’t commented on the EC debacle; because being a UK citizen the last thing I want is to end up before the High Court on a libel case.

    In the UK, even if you win a libel case you lose.

  23. I know the court documents are public, but do you think you could redact Jane’s address from the post? It doesn’t need to be here does it?

  24. Am I the only one completely SHOCKED that her lawyer included a screenshot of her insane ramblings about Interpol as evidence FOR HER?

    I used to be a legal secretary. I cannot imagine a lawyer I worked for giving the judge photographic (because it’s a jpg/screenshot) of my client acting loony tunes.

    Yeah, not a good strategy. What floors me further is that they claim the allegations of the West Hollywood purchase are false when…that came straight from the horse’s mouth.

    This time truth is truly stranger than fiction. The fuse is lit, let’s see where this dirty bomb goes.

  25. I’m not a lawyer, but after reading this and DA, I’m thinking the whole point of this suit is to get the names of the people who posted anonymously about the problems at Elora’s Cave. I’d be willing to bet once that information was received, the suit would be dropped (however that would happen, remember, IANAL).

    I remember looking into EC way back when I was researching small presses, prior to deciding to self-pub. Looks like I dodged a bullet there.

  26. Dear PG,

    thanks for posting this, however (!!) Can you take Jane’s home addy out of the insert? Let’s not do collateral damage.

  27. Here’s a link to the defense fund.

    http://www.gofundme.com/DA-DefenseFund

  28. I’m not too familiar with American law, but this looks like a badly drafted document. Awkward language and such. Also, could you get a trial by jury for a case that’s seeking only $25,000? Up here, that would be a small claims court matter with simplified procedures.

    • You are not mistaken, Moira. It is badly written.

      In the U.S., a citizen can almost always get a trial by jury thanks to the Sixth and Fourteenth Amendments of the U.S. Constitution. There are exceptions, but those are rare. A party can waive their right to a jury and have the judge hear the case.

      In Ohio, small claims courts hear cases where damages are $3,000 or less, which is why EC had to file with the next court up the chain. (And every state has their own rules. In Texas, the maximum for small claims damages is $5,000.)

      • That you for explaining that, Suzan. I have to admit, my mind boggles at the idea of having a jury trial for $25,000. When you think of the costs of lawyers on both sides and the court resources used to hold a jury trial, it just seems nuts.

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