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A note about confidentiality clauses

1 October 2014

From author Courtney Milan:

A brief update of what is going on:

1. Jane Litte of Dear Author was sued for defamation by Ellora’s Cave, after she signal-boosted news from Ellora’s Cave authors, editors, and cover artists saying that they were not getting paid, along with other warning signs of impending company failure.

. . . .

3. Jane has asked for people–specifically editors, cover-artists, and authors–to come forward who are willing to testify that they have not been paid.

I have seen multiple times (in emails and on the web) the statement that many people who would like to come forward feel that they are bound by the confidentiality clause in their contracts, and so cannot speak on this issue.

. . . .

(A) If you think you know something that can help, e-mail Jane (jane@dearauthor.com). If you are afraid you can’t testify because of the confidentiality clause, tell her that.

(B) I feel that with (A) you need to know that your interests and Jane’s interests do not align perfectly, and I’m sure some of you know that. So here’s an option B. If you are an author, an editor, or a cover-artist who would testify as to the truth of the statements Jane made, but for the confidentiality clause, contact me. If there is enough interest from those who would testify but are afraid for confidentiality reasons, I will look into finding a lawyer to accompany you to the hearing–someone whose job it is to represent your interests, and to make sure that you’re speaking up to the maximum allowed without putting yourselves at risk. But in order to do that, I need to know who you are. E-mail me at contact@courtneymilan.com. You do not have to tell me anything except that you would be willing to testify as to the truth of the statements Jane made, but feel that you cannot except for the confidentiality clause.

Link to the rest at Courtney Milan and thanks to Lily for the tip.

Here’s a link to Courtney Milan’s books

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70 Comments to “A note about confidentiality clauses”

  1. OK, Courtney is pretty much a superhero.

  2. Thank you, Courtney, for stepping up to help the (former?) EC folks and let their voices be heard.

  3. I voted with my credit card and bought one of her books. I want to give her and Dear Author financial help, but since they don’t have any DONATE buttons set up anywhere, this is the next best thing.

  4. Courtney is amazing. She’s a former law professor, so she really knows what she’s talking about and has the contacts to help authors who want to stand up to EC.

  5. That is a hugely generous offer and I’m impressed and gratified to see another author putting herself out there to do the right thing.

    And she is so right. Silence breeds fear. And how much more fear when that silence is forced on one and leaving everyone else to fear something nebulous.

  6. I won’t speak for the absent PG. He would probably say something erudite. For myself, watching this situation unfold, I’ll say this– these are contractual matters, legal matters for the courts to decide. No one held a gun to any author’s head and made her sign a contract containing some sort of confidentiality clause. As an author I would check the depth of the water before diving headfirst into this quagmire. Were I an EC author, I would definitely pay for legal advice before participating in anything, regardless of how generous and supportive. In fact, I would already have hired an attorney.
    What’s that saying? The road to hell is paved with good intentions.

  7. Great offer on her part, and I couldn’t help but imagine Mike Shatzkin trying desperately to find a “rational” i.e. monetary reason for such an altruistic action on Courtney’s part.

  8. I’m surprised some EC employees haven’t filed complaints with their state’s wage and hours division and/or federal Dept of Labor.

    Then there are various state and federal taxes that are supposed to be witheld.

    • I believe that the majority of people staying that they went unpaid were contacted. I have learned that hard way that when you client stiffs you on a payment in that situation, all you can really do is sue them. Labor dept will rarely have anything to do with it, and contact employees usually do not have taxes withheld.

  9. Three cheers for Courtney Milan!

  10. Hmm. There appears to be a little confusion here about confidentiality clauses. Nondisclosure agreements are another particular specialty of mine – I’ve drafted hundreds of ’em – so I will make a few observations. Note that I am NOT saying that any of the lawyers involved don’t know this, and this is not legal advice or comment on any PARTICULAR situation. This is just some useful contextual information.

    1) First and foremost, confidentiality clauses are not like the Fifth Amendment. They are not an affirmative defense to any subpoena or other requirement of testimony from a court. If a judge says you have to answer, you have to answer. And no confidentiality clause which allegedly makes it a breach of contract to respond to a court’s lawful inquiry is enforceable, as a matter of public policy. If there is a legit subpoena, and you testify, you cannot be successfully sued for responding as required by law.

    2) That being said, the first caveat is that telling somebody you would be a good witness may in and of itself be a breach of the disclosure agreement. So I agree that yes, it is a good idea for any (former) EC author or (former) employee to seek legal counsel before offering anything to the defendant in this or similar case, even just advising them that they might have potentially helpful or relevant information. If they come to you, you answer questions – even the question of whether you know anything which might be relevant – at your own risk. I could not even tell you how many times I have said to someone, “It’s not that I’m unwilling to answer your question, it’s that there are privacy/nondisclosure issues here. Get a subpoena, nudge nudge wink wink, and I will cooperate fully.”

    3) The second caveat is that it is very common for disclosure agreements to include a clause which basically says, “If you get subpoenaed, you have to tell us RIGHT AWAY, and if we think your potential testimony would hurt us, we reserve the right to get involved and argue as to why you shouldn’t have to answer.” Again, this requirement is not going to be an affirmative defense that will get you out of answering. But since it is rare that subpoenas for either personal testimony or response to written interrogatory don’t have a window of days to weeks for response, failing to so notify might be a breach of agreement that WILL be enforced, as it doesn’t directly infringe on the court’s right to make lawful inquiry.

    • Marc, this is purely theoretical, law exam type question:

      Party A has already breached the contract between her and Party B. Generally speaking (if your contracts professors were like mine), Party B is on higher moral and legal ground by not herself breaching the contract and suing to enforce the terms of the contract.

      However, Party B, thanks to Party A’s breach, literally has no assets other than her elderly cat. Her credit history is in the toilet because she can’t her bills due to Party A’s breach. Any other assets are under Party A’s control, so Party B cannot afford the filing fee, much less the attorney’s fees to pursue a case against Party A. Even if Party A sues Party B for breach of contract, there’s nothing to collect for a judgment (default or otherwise), other than the ashes of the cat who passed away while Party B waited for the case to go to trial. What else does Party B have to lose if she goes ahead and breaches the contract?

    • like marc said
      said well marc

  11. Seems to me (and IANAL) that since EC already may be in breach, I wouldn’t sweat any particular clause in a contract that may soon be toast anyway.

    I really feel for these authors. It sounds as though what happened and is happening was a matter completely out of their control.

  12. Tina Engler From Ellora's Cave

    For the record, I’d like to state that Ellora’s Cave has never sued an author, yet to read everything out there on the internet you’d think we spend our days sacrificing them to Beelzebub instead of publishing their books. At any rate, Courtney Milano is doing us a huge favor with this because the authors who keep saying they aren’t getting paid ARE getting paid. We cannot legally or ethically post copies of their signed and cashed checks to prove we’re telling the truth, but we can in court if the judge orders it.

    What motive would authors have to spread lies? Many actually, but the most prevalent reason we’re seeing (and screenshotting) is they want their rights back to an edited book so they can self-pub it & not have to share the profit with the house that published them. This is also the reason those same authors are telling ppl not to buy their books… Bc if their sales fall below a certain number of copies sold, they get the rights to their books back free of charge. Again, they can then self-pub them.

    My question to all of you is this: if the evidence provided in court doesn’t uphold your speculative predictions will you apologize to us as publicly & aggressively as you have with jumping to conclusions & spreading the rumors? I don’t believe for a second that any of you will. I’d love for somebody… Anybody… To prove me a liar, but history shows me it’ll just be spin-doctored and swept under the rug by the Courtney Milanos of the world.

    And lastly, as to us trying to suppress freedom of speech… That is the most ludicrous thing I’ve ever heard. I have been a passionate civil rights activist for the most marginalized ppl in the US for 20+ years. I may not like what a person has to say, but you can bet your last buck I’m the first one to defend their right to say it.

    It would be inappropriate for me to speak about a current lawsuit so I will not get into details. This case, however, is about libel… Not freedom of speech. In a libel suit, malice has to be established, which we were very aware of when filing it. Glean from that statement what you will because I won’t comment further on this case.

    On another subject, I have previously emailed PG because I was upset he posted a proprietary email from EC (sent to our authors on a closed, private business loop) & highlighted parts of it without understanding the context of the letter. In said letter, it’s important to understand that it was written for our authors to combat rumors that were already out there with truthful responses. Without that context… Context our authors were well aware of bc they pointed them out to us… The letter does seem like a wtf moment. But then, it was only meant for our authors’ eyes. One of the authors illegally & unprofessionally leaked it… With the context missing of course… To some Internet forum or another.

    To those who read this with an open, fair mind, thank you.

    Tina

    • Tina, I don’t know you or Ellora’s Cave, but I do know the Internet, and you’re about to get a really short, sharp lesson in the Streisand Effect. Google it if you’re curious.

    • Tina,
      since there’s such a high number of people claiming, publicly, that they didn’t get paid, and after reading the court documents about when you were sued by the ex-EC-co-owner, and seeing your past behavior, your comment here reads as a crap of lies.

      But if you can prove that you paid those people and the court, after seeing your books, announces that all the authors and editors have clearly been paid and that EC accounting is transparent, then I’ll be first to admit my mistake in judgement and apologize to you.

    • But if you can prove that you paid those people and the court, after seeing your books, announces that all the authors and editors have clearly been paid and that EC accounting is transparent, then I’ll be first to admit my mistake in judgement and apologize to you.

      Emphasis mine.

      Just out of curiosity, Tina, since you have a conspiracy theory for why at least 19 different writers are all lying about you, what is the motive of the editors? And the cover artists? Where do they fit into your conspiracy? How does an editor win if no one buys the author’s books? How is “not buying the author’s book” a victory condition for the cover artists, enough to get them to lie about you not paying them? Let’s hear it.

      Your claim is extraordinary. How does it happen to be convenient for at least 30 different people — editors and cover artists included — to lie about you? How does it happen that you were unlucky enough to do business with about 30 different people who are all dishonorable enough to lie about you? That is a remarkable claim, I hope you have a smoking gun on that.

      We can add in Jane of Dear Author, what is her motive? She posted an excerpt of your lawsuit with Chrissy Brashears, in which a judge publicly impugned your integrity. Did Jane Ratherize the court documents she links to? You could easily prove that by posting your own links to those documents. That is a quick and easy way to discredit Jane right now in the court of public opinion. Did Jane Ratherize the other court documents as well? Or, if those documents are true, then are the judges lying, too?

    • Dear Tina Englero,

      I’m delighted to hear that you’ve been a passionate civil rights advocate for the most marginalized for the last 20 years. That being said, perhaps you should be aware that most people don’t view cultural appropriation as civil rights work.

      Sincerely yours,
      Courtney Milan

    • My other question to you is this, Tina.

      You claim to be a “passionate” advocate for free speech. If the evidence in court doesn’t go in your favor, and the speech in question is found to not be libelous, will you pay the legal bills that Jane incurred?

      Because we all know that if the speech in question isn’t libelous, you’ll be the first person in line to defend it.

    • So are authors only requesting reversion of rights for books that have already been edited? Sure about that?

    • Tina Engler, you are either a pathological liar or your mother is lying to you about what’s happening with your business.

      Fact: Your “cashed” checks prove nothing since you’ve been BACKDATING THEM. Oh, and mailing them with NO DATE on the postmark. The royalties are also missing vendor information half the time. So maybe the author got paid something, but did they get paid what they should have? Hell no. Did they get paid on time? Probably not, and your fraudulent backdated b******* proves nothing.

      Fact: Authors are asking for rights back to UNEDITED books that have gone past the date in the editing clause in your own contract. Instead of reverting those rights, you are telling authors you’ll publish them without any author input into edits at all. Don’t you dare lie about it. Or how about this–you agree that authors can post those emails. If you’re not lying, you have no problem with that, right? No one should have anything to post if it’s all a lie.

      Fact: Authors are asking for rights back because you FIRED ALL YOUR EDITORS AND COVER ARTISTS and plan to edit hundreds of books with three or four people! We have no confidence in you or your business judgment if you think that is possible. We think you’re going bankrupt because YOU CAN’T AFFORD TO PAY YOUR EDITORS AND COVER ARTISTS. And we don’t want the books we lovingly slaved over to be caught up in bankruptcy b*******.

      Fact: Authors are asking for their rights back because the managing editor quit and no one has even bothered to tell us who’s replacing her!

      Fact: Authors are requesting their rights back because their books are being delayed without warning.

      Fact: If you’re passionate about First Amendment rights and “civil rights activism,” amend your lawsuit to REMOVE THE REQUEST FOR COMMENTERS’ IDENTITIES. If you’re serious about “civil rights activism,” then that shouldn’t be a problem, right?

      This lawsuit has done more to damage Ellora’s Cave than any blog post ever could. I was proud to be an EC author and now that’s a friggin’ joke because you couldn’t take anyone holding up a mirror to your own incompetence.

    • Authors pull books from publishers all the time so they can strike out on their own and self-publish. And in each case, the works have been edited and polished by that original publisher. Does it suck for the publisher to know that material on which they’ve expended their precious resources is now out of their hands and all the benefit is going to the author? You bet. It’s reality, Tina. Get used to it.

    • Don’t ask if someone “leaked” it. Ask instead whether it’s true.

      And the next time you diss an author unaffiliated with your house, do her the courtesy of spelling her name correctly.

  13. Head hurts so much, yet must continue reading.

    One bit of advice – Making fun of someone’s name is so 1st grade. If you want to been seen as professional I’d avoid it. And avoid posting pictures on Facebook flipping off people.

  14. Yey for Courtney!

  15. Tina,

    I thought there were EC editors and cover artists claiming they haven’t been paid as well. What would be their reason for saying that? They have no ‘rights’ to get back.

    • I asked her the same thing. Right now it just looks like an attempt to confuse the issue: Focus on the authors and put them on the defensive, and hope that no one remembers the editors and the cover artists. I would love to see the theory behind what the editors and cover artists “win” by going along with the writers, if the writers are lying.

      And let’s not forget judges’ comments in previous court cases.

  16. *facepalm* I’m sooooo glad I’m not Tina Engler’s attorney. The first rule of lawsuits is you don’t talk about lawsuits.

  17. Jane has been talking about it too and now Tina. I wonder about these lawyers advising these two people.

    • Jane is a lawyer and is perfectly able to decide what she should and shouldn’t disclose. And since she’s being sued and the lawsuit is a matter of public record, she’s also well within her rights to post updates about how it is proceeding. Sunshine being the best remedy and all that.

  18. One last thing: I appreciate the link to my books, but I’m doing just fine. Here’s a link to books written by Ellora’s Cave authors that are not published by Ellora’s Cave.

    These are the people who are speaking out despite threats and confidentiality clauses. Support them!

    http://smbookobsessions.com/the-cave-chronicles-or-deplorable-ellora/

  19. Haven’t been paid.

  20. I received a check on 9/28 dated 8/29 for May royalties that I should’ve received in July. Pay on time indeed. Explain that one, Tina..:/

  21. How much simpler my life is since I sold my soul to Beezelbezos.

  22. All the following is my opinion only.
    All this legal stuff makes my head ache, and I can’t see how it’s going to benefit the EC authors. If anything, it’s creating a smokescreen, so the authors, editors and cover artists can be pushed to one side while people deal with the Important Stuff. I’ve seen politicians do that.
    I asked for the rights to my unpublished but contracted work back because of the change in editorial policy.
    I’ve also asked for the rights back to all my EC books. Some, though not all, are eligible under the low sales clause in my contract, and I will hear about them by February at the latest, or so the form letter I received told me.
    The Ellora’s Cave contract is the harshest I’ve ever signed, but I knew that when I signed it. However, I ensured that I was free to write whatever I wanted and sell it elsewhere, except for specific series and characters. I earned decent money, so I considered the books more of an outright sale than the lease that an author contract is supposed to be.
    I’m not an employee, I’m a subcontractor. So were the editors and cover artists, some of whom are owed money further back than I am. I’ve been paid up to the end of May. The amounts are low. Considering what I used to earn, those numbers alone indicate the parlous state of affairs at the Cave.
    When sales plummeted I decided to ask for my rights back.
    I’m not bemoaning my fate. I’m a big girl and I knew what I was signing. I was relying on the goodwill, sense of ethics and perhaps the commonsense of the owners by asking them to give me the rights back on what has become an unprofitable partnership for both sides when I sent my request for reversion letters.

  23. Fun that Ms. Engler snuck that comment of hers in, one day before she entered into a gag order pending the hearing later this month.

  24. Tina Engler wrote,

    “What motive would authors have to spread lies? Many actually, but the most prevalent reason we’re seeing (and screenshotting) is they want their rights back to an edited book so they can self-pub it & not have to share the profit with the house that published them.”

    Why should writers not regain rights to a book just because it has been edited? They still wrote it, they still own copyright, the text is still theirs.

    On Writer Beware!,

    “I’ve also seen publishers claim copyright on editing (which means they’d revert rights only to the originally-submitted manuscript). This is ridiculous and unprofessional. For one thing, it provides no benefit to the publisher–what difference does it make if an author re-publishes the final version of a book from which the publisher has already received the first-rights benefit? For another, if edits are eligible for copyright at all, copyright would belong to the editor, not the publisher. If you find a copyright claim on editing in a publishing contract, consider it a red flag. If the publisher makes this claim without a contractual basis–as some publishers do–feel free to ignore it.”

    Here’s a link:

    http://accrispin.blogspot.co.uk/2014/10/how-to-request-rights-reversion-from.html

  25. If you’d like to see the kind of crap EC pulls with their royalty statements, c’mon over to my blog – I’ve even got pictures:

    http://catgrant.com/2014/10/just-for-you-know-whats-and-giggles-ellorascave-problems-royalties-rights/

  26. If Tina Engler is so sure that everyone is lying then she should have no problem releasing everyone from the confidentuality clause in their contracts. She could even limit that release to non-proprietary information only. After all, she says everyone has been paid correctly and on time so proving it should be easy. Just order an outside impartial audit of their financial records. That might even shed so light on the sudden drop in Amazon payments EC announced in August. That would turn up if there was any outstanding payments due to any of the editors and cover artists that were let go or released from their contracts. Something I noticed Ms. Engler was careful to avoid in her comments about payments.

  27. Tina Engler From Ellora's Cave

    I was going to reply, but you’ve already shown it’s pointless.

    Courtney, I did not mean to misspell your name anymore than Jamie meant to misspell Brashear. I was unfamiliar with you until this started. I’ve been publishing, editing, & writing romance for 14 years so I don’t read it in my spare time. Now, making fun of my hair & multicultural family while trivializing all my civil rights work? Wow. This place can enjoy you because it only exemplifies the mindset of its participants.

    Have fun mocking me & making bigoted statements because I’m too busy working to lurk.

  28. Wow. This is what’s going on behind the scenes among romance novel writers?

    Ugh.

    If there’s a lawsuit, best to leave it to the lawyers and the court. This kind of public display shows exceedingly bad judgment and really poor taste. I’m shocked that the respective attorneys of the parties involved are allowing this kind of stuff.

    Also, the drama and bitching and accusations are spilling over into communities frequented primarily by readers of romance. It’s a big turn-off. I know I’ve unliked a few FB pages and unfollowed a bunch of twitter accounts as a result.

    Conduct unbecoming, ladies. Not cool.

    • If professional, well-reasoned, and passionate advocacy on behalf of the rights of authors, editors, artists, and journalists is considered “conduct unbecoming”, I guess I can live without the title of “lady”.

    • +1

    • I’m an avid reader of romance and I welcome the updates about this lawsuit as it affects authors I interact with on social media. I buy their books knowing that a part of that money goes to them. If I’m buying EC titles and they’re not getting paid, I want to know.

      I’m paying to enjoy a story and, in a roundabout way, buy that author a cup of coffee. Or pay a part of their electricity bill that they use to power their laptop where they write all those wonderful stories I love. I want to know if they will be able to still keep their stories theirs.

      I’m not paying for Tina Engler’s move from Ohio to California and a house in Los Angeles county. I’m not paying so she can finance a high maintenance lifestyle in one of the most expensive cities/counties/states in the world. I’m not paying so that she can sue a blogger when she should be paying her debts. I want to know the truth behind all the accusations against her and Ellora’s Cave.

      There is a trust bond between author and publisher. And, in turn, the reader. Have contracts that affect the lively hood of authors been fulfilled? I want to know if this trust has been broken.

      Writers don’t need this stress. Their job is to write. They make their own stress. Part of going to a publisher is to lessen their burdens. I just want to know when their next book is coming out and where/when I can get my hands on it.

      As a reader, I WANT TO KNOW.

  29. Everyone,

    I just had to trash a comment in the queue for the first time ever.

    I really hated doing that, so please keep this thread civil or we’ll have to lock it.

    Thanks.

    • Randall, I’ve never said this before, even to PG privately, but I think y’all lock this thread down.

      • Randall and I both deleted posts with a similar theme, Suzan.

        Listen up. Attack the issue, not the person. Sometimes we slip up (everyone knows that I have from time to time), but it’s still not cool. And there’s no reason whatsoever why a community this intelligent has to drag a family member into anything.

        First, last, only warning.

        Looks like I picked the wrong week to stop sniffing glue.

  30. As a fellow guest host I’m ready to pull the plug. Personal is very very unprofessional. And yes, this does not reflect well on the romance community as a whole.
    The Passive Voice is not the site for a cat fight.

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