PG has just learned that the judge hearing Keiler et al v. Harlequin Enterprises Limited et al, a class-action suit brought by a group of Harlequin authors against HQ alleging a massive underpayment of royalties, has formally certified the authors as a class.
This means that the lawsuit, which was previously dismissed then reinstated in part by an appellate court, can move forward.
Here’s the order docket entry:
U.S. District Court
Southern District of New York
Notice of Electronic Filing
The following transaction was entered on 10/23/2014 at 3:00 PM EDT and filed on 10/16/2014
Keiler et al v. Harlequin Enterprises Limited et al
Docket Text: STIPULATION AND ORDER REGARDING CLASS CERTIFICATION:… Pursuant to stipulation of the parties, and based on the allegations in the Fourth Claim for Relief of the First Amended Complaint filed November 5, 2012 (“Complaint”) and submitted by proposed class representatives Barbara Keiler, Mona Gay Thomas, and Linda Barrett, the Court hereby certifies the claims and issues in the Complaint for class treatment under Fed. R. Civ. P. 23, as more fully set out in this Order. When fashioning an order under Rule 23, the Court must satisfy itself that the prerequisites of Fed. R. Civ. P. 23(a) have been satisfied… Once the prerequisites of Fed. R. Civ. P. 23(a) are satisfied, a class action may only be maintained if the action falls within one of the categories enumerated within Fed. R. Civ. P. 23(b)… Accordingly, the Court makes the following findings and conclusions as stated herein. THE COURT HAVING READ AND CONSIDERED the Stipulation of the parties, and finding that the requirements of Rules 23(a) and (b) are satisfied, IT IS HEREBY ORDERED that the class is certified, defined as follows as set forth herein. IT IS FURTHER ORDERED that Barbara Keiler, Mona Gay Thomas, and Linda Barrett are designated as Representative Plaintiffs for the class; IT IS FURTHER ORDERED that DavidWolfLaw PLLC and Boni & Zack LLC are appointed Class Counsel; and IT IS FURTHER ORDERED that Class Counsel are directed to submit within thirty (30) days of the entry date of this Order, a proposed plan concerning Notice of Pendency of Class Action to be given to the members of the class. (Signed by Judge William H. Pauley, III on 10/16/2014) (ja)
It’s not the end of the lawsuit, but, as mentioned, this is a major step forward for the authors.
The class covers authors from the US, Canada, UK, Republic of Ireland, Australia and New Zealand who signed standard HQ publishing contracts between 1990 and 2004 that included the following language in the All Other Rights clause:
On all other rights exercised by Publisher or its Related Licensees
ﬁf typercent (50%) ofthe Net Amount Received by Publisher for
the license or sale of said rights. The Net Amount Received for the
exercise, sale or license of said rights by Publisher from a Related
Licensee shall, in Publisher’s estimate, be equivalent to the amount
reasonably obtainable by Publisher from an Unrelated Licensee for
the license or sale of the said rights;
Which contracts also provide that New York law will apply and include no arbitration clause. The class covers those authors whose works have been published as ebooks.
The full order is set out below (click the four-arrows box in the lower left corner for a larger version):
A brief recap of where we are in the EC/DA litigation.
Jane wrote a post about Ellora’s Cave and whether it continues to be a viable business.
As a result of that post, Ellora’s Cave filed suit against Dear Author, alleging defamation. EC also asked for a temporary restraining order (“TRO”) against Jane. (Note that I use the words “Jane” and “Dear Author” throughout to refer to the defendants.)
There was an initial, brief hearing on the TRO in state court, at which point the state court decided that evidence would need to be presented. That hearing was set for October 27th.
On October 20th, Dear Author removed the case to federal court on diversity jurisdiction grounds. (Diversity jurisdiction basically means that if one party is from one state and the other party is from another state, and there’s a lot of money at stake, parties can choose to go to federal court instead of state court.)
EC again refiled its motion for a TRO in federal court.
The TRO hearing in federal court is set for October 29th at 1:30 PM.
Last night, Marc Randazza, Jane’s lawyer, filed an opposition to the motion, alongside seven exhibits (Exhibit A, from Jane, with a correction regarding the name “Red Rose Publishing”; Exhibit B, from an editor;Exhibit C, from an author; Exhibit D, from an author; Exhibit E, from an editor; Exhibit F, from an editor; Exhibit G is a true copy of tax liens and Workers’ Comp liens against EC.)
This blog post discusses the memos in support and in opposition to the motion for a temporary restraining order.
. . . .
Here’s my take:
On the basis of the exhibits currently available to the court, someone has to be lying.
In general, I think a judge would be extremely unlikely to squelch speech at this stage when there exists evidence from multiple people stating that the blogpost is substantially truthful.
EC is missing proof of a vital part of their case–namely, that Jane acted with actual malice–and I don’t know how they will ever be able to prove it, but they seem to think that proving that Jane dislikes EC is proof that she acted with actual malice. No.
. . . .
I said on Twitter the other night that there’s a difference between a good lawyer and a merely competent one, and that the lawyer for Ellora’s Cave (I refer to the party and the lawyer as “EC” throughout) has all the hallmarks of being competent, while Marc Randazza is a very good one.
. . . .
This is a perfectly competent motion for a TRO. It is also an exceedingly sloppy motion for a TRO. (In fact, when I first read Randazza’s opposition, I thought there were some sloppy elements in construction—but when I went back and looked at things from start to finish, any sloppiness in his opposition is due to the fact that the underlying motion is fundamentally sloppy to begin with. Slop begets slop.)
What do I mean by sloppy? Well, if you’re going to enjoin someone from engaging in conduct, you should really be very, very specific about what it is that you want them to do. For instance, if you’re seeking a restraining order against a vindictive ex, you want that restraining order to say things like, “Don’t come within 50 feet of me,” and “stop calling me at work.” You don’t want to say, “stop being a bad person” even if you want them to stop being a bad person, because what does that even mean?
On its face, this is a motion for a “stop being a bad person” kind of restraining order.
. . . .
Part of the problem is that the attorney for EC appears to be use the word ‘publish’ in a way that does not track typical usage. The blog post in question was published. It is not currently “being published” as anyone understands that word. The act of publication is not continuous: It was published once, it does not need to be continually republished day after day in order to persist, and so if you want it taken down, you should ask for only that. If you ask for someone to not publish things in the future, you’re actually asking to track everything they might say in the future. Is this what EC really wants?
. . . .
There are other things that a good opposition to a preliminary motion will do.
It will explain the law to the judge and tell him where he can verify that the lawyers are telling the truth.
It will explain the facts (and in so doing, paint a vivid picture of who/what/where/when/why).
It will explain how the facts apply to law, and in doing so tell a story of the litigation at present.
It will immediately sum up the litigation and give the judge a working explanation for what is going on.
In some cases, it will also educate opposing counsel about things they do not appear to understand.
In this instance, there’s a sixth goal. Technically a motion for a TRO is not the same thing as a trial on the merits. You could win on the merits and lose a TRO. You could lose on the merits and win a TRO. But realistically a TRO hearing is kind of a mini-merits trial in the sense that it gives the parties an idea of whether the arguments will sink or swim. If the judge agrees with Randazza and says, “I cannot see how Ellora’s Cave has a prayer of a chance of prevailing on the merits,” that sends a certain message to opposing counsel. So another goal is to win the mini-trial, because that could influence whether the opposing party decides to continue with the lawsuit or dismiss it. Just about any case with a TRO contains a little dance to this effect: “Yes, this isn’t a real trial on the merits, but we all know that this could easily decide the case. We are going to pretend it won’t because reasons, but it usually does. So.”
. . . .
Now, finally, we get to the opposition motion. This is the first chance that Randazza has to introduce the concept of Dear Author and what it means to the romance community. He does. He explains that Dear Author “has become a respected source for news and information for the romance novel community.” He immediately positions Jane as a reporter who investigates facts. He talks about the things she has accomplished in the community–as being someone who provides information to authors without a legal background, and who lets them know what will happen in scary situations, and simultaneously as someone who provides a springboard for discussion of those issues.
(I’m glad that this was included as background, because up until this point, there has been little discussion in the case itself of what the DA community is and does–and there’s no way a federal judge will understand that unless it’s explained up front. Like it or hate it, there is a DA community, and it provides a place where authors and readers can discuss the changing publishing industry and what that means at large. The remedy that EC asks for would have a huge effect on that community.)
. . . .
Randazza sums up the litigation—including showing that he’s aware that EC has a motion on its face and a shadow motion that it might be trying to make instead—with this: “Ellora’s Cave is understandably concerned about any negative view of its business, but it has no right to ask this Honorable Court to use its equitable powers to suppress the truth, to suppress fair comment, and to suppress future unknown statements. The First Amendment protects [Jane's] right to publish on matters of public concern, and her mission mandates that she share her findings with the author community. Given that her writing is a matter of public concern, about a public figure, [Jane]’s First Amendment rights are given an exalted position – one which makes sustaining a defamation claim against her in this context a virtually impossible task.”
Courtney does an excellent job of discussing both sides of this litigation and the underlying law. PG will add that sometimes good attorneys are made to look not so good because they have problem clients.
So you have everything in the same place, PG has inserted Dear Author’s Opposition Motion and all of the Declarations below. A Declaration is a written statement summarizing what the person making the declaration would say if called to testify in court.
If you click on the box with four arrows in the lower left corner of each embedded document, it will open to a larger size.
PG has previously posted about the lawsuit that Ellora’s Cave filed against Dear Author and its proprietor, alleging that Dear Author had defamed Ellora’s Cave in a blog post describing EC’s financial problems.
Dear Author has just removed the case from the Ohio state court where it was originally filed to the relevant U.S. District Court in Ohio claiming diversity jurisdiction is present in the case.
PG will not discuss diversity jurisdiction in detail because it’s pretty boring, but, in a nutshell, if a party (individual, corporation, etc.) sues a party that is a citizen of another state and the amount in controversy is more than $75,000, the defendant has the right to remove the lawsuit to federal court. Wikipedia has a mostly-correct discussion of diversity jurisdiction in layperson’s terms if you want more.
There are a wide range of reasons that a defendant might want to remove a lawsuit to federal court, but, as a general proposition, many attorneys feel that the quality of federal judges and magistrates may be higher than that of state judges (although PG will attest to exactly the opposite being the case on many occasions) and that some state court judges may tend to give the benefit of the doubt to a local litigant (ditto for exactly the opposite).
At a minimum, this indicates to PG that Ellora’s Cave will have a real fight on its hands. He is not familiar with Ohio laws and practices, but many federal courts have the reputation for not putting up with a lot of smoke and mirrors on the part of parties or their attorneys. In prior litigation in state court, EC reportedly was extremely dilatory in responding to requests for financial documents, etc. PG would not have wanted to try to defend such behavior in most of the federal courts where he appeared in past years.
An upset federal judge sitting in his/her court can be an intimidating presence.
A major erotica publisher is suing a beloved one-woman blog site, and everyone from the blog’s readers to the publisher’s authors are rallying in support of the blogger.
The publishing community has done everything but hold a bake sale to help blog owner Jennifer Gerrish-Lampe, better known as Jane Litte of Dear Author, raise the money for her legal defense fund against Ellora’s Cave, the erotica publisher suing her for defamation.
Ellora’s Cave, whose storehouse of popular romance titles raked in $15 million last year, is demanding $25,000 in damages from Gerrish-Lampe after she blogged about the company’s allegedly questionable business practices.
But Gerrish-Lampe won’t be fighting the suit alone: A crowdfunding campaign to defray her legal costs created by well-known book blogger Sarah Wendell of Smart Bitches, Trashy Books has raised more than $50,000 in five days. It’s also given rise to a hashtag, spawned a charity erotica anthology, and created a strange backlash for the long list of authors who have supported the blog.
. . . .
Enter Dear Author. Dear Author is a popular publishing industry blog that has built its reputation on analyzing industry news, debunking rumors, and serving as an information resource for authors and readers. Following Ellora’s sales drop, Gerrish-Lampe, who is a lawyer by day, dug deeper into Ellora’s Cave and its financial records.
On Sept. 14, she compiled a long litany of alleged evidence that Elllora’s is on its last financial leg, including claims from authors that they had not received royalties, financial records showing years of unpaid taxes, and erratic behavior from Engler who was taken to task by a judge for “systematic delays and flagrant disrespect for the court” in a 2008 civil court case.
. . . .
Dear Author’s Attorney Marc John Randazza told the Daily Dot via email that the lawsuit was an intimidation tactic:
Clearly the plaintiff has never read Near v. Minnesota [a legal precedent in favor of allowing negative press to be published] or seen The Big Lebowski. As Walter Sobchak taught us, “the Supreme Court has roundly rejected prior restraint.”
This is clearly a SLAPP suit. Ellora’s has filed a lawsuit without any possible damages. The only thing they seem to want to accomplish is inflicting attorney’s fees on the defendant.
Speaking to the Dot by phone, Ellora’s lawyer Steven Mastrantonio insisted that it isn’t a SLAPP, or strategic lawsuit against public participation, suit, and said that although they “would love to resolve the lawsuit,” it was important to clear the air about the false claims made against the company. A SLAPP suit is intended to essentially silence critics by burying them with legal threats and fees, but that’s not what’s happening here according to Mastrantonio:
We have paid the authors, we have paid the editors. The case is not a SLAPP suit by any means. It’s not an anti-first Amendment lawsuit. It’s simply a case where Dear Author has made a malicious and false statement about my client which has caused real damage to them. It’s a defamation case. We want to set the record straight.
Allegations like they made in a public forum, and causing panic among the authors and fans, that has the unintended consequences of affecting sales of the books and actually affecting the authors who want to get paid. So if people aren’t buying the books, the royalties go down.
The line above is the last line from the movie, Gone with the Wind, based upon the literary classic, Gone with the Wind, by Margaret Mitchell.
But look! Look what’s happened to Scarlett’s beloved Tara~
With only a few volunteers and money out of his own pocket, Lovejoy resident Peter Bonner is carefully restoring the facade of Gone With the Wind‘s famous plantation using pieces from the original set. Wood, windows and fixtures from the classic 1939 film sat on the back lot of Selznick Studios until 1959 when the set was dismantled and returned to Atlanta under a banner saying, “Tara has come home.” The intention was to turn it into a tourist attraction, but that never happened. Later, in 1979, the pieces were purchased by Betty Talmadge, the ex-wife of Georgia Senator Herman Talmadge. Betty cared for the facade and attempted to work with municipalities to put it into a museum. She paid for the front door to be restored and it is currently on display at the Margaret Mitchell House. Unfortunately, Talmadge passed away in 2005 before anything could be done with the facade, and poor Tara remained in storage.
Now that’s dedication. Read the rest and view the photos here.
Harlequin has signed a deal to provide exclusive subscription access to 15,000 backlist titles to Scribd subscribers
Monthly subscribers to Scribd can now find titles from a variety of Harlequin imprints: • Harlequin Series Romance (including Harlequin Presents, Harlequin Desire, Harlequin Superromance, etc.) • HQN Books • MIRA • Carina Press
I read a lot and always have. But it is a testimony to the excellence of this book that I can remember when I first bought it, and where in the now defunct bookstore I bought it. Furthermore, I remember going back there again and again waiting for the next book in the series.
I always thought I remembered a lot from my first reading. But, even reading through the last couple of books in the series, I realized I had forgotten an awful lot of the details, had some out of order, and thought different characters did different things. So about a week and a half ago I began rereading the story.
There has been a lot of contention since the series came out about whether it would stick to the book in plot and character. And, I have to say that it has really kept to the book, the last couple of episodes in this first season took some not unwelcome liberties, but all in all it has.
There is a lot less Jamie in the first few parts of the novel. He doesn’t appear nearly as much as I seemed to recall. I’ve chalked it up to wishful thinking on my p[art as who wouldn’t rather Jamie than his gnarly uncle? And the paradox of marriage to someone who has not yet been born is still really, really interesting.
This is a long book but really worth the time and money. It is in all likelihood at your local library in a couple of formats. I think it is well-written, engaging, gripping and un-put-down-able — even after the second read. And, I enjoyed reading it even as I watched the series.
I admit to having read Outlander when it was first released. In fact I’ve read the entire series. The characters are so real to me that I’ve had mixed feelings about any translation to either the big or small screen. The Starz series has managed to win me over, despite some lingering trepidation. Dear Ms. Gabaldon, it’s been 23 years, yet Claire and Jamie still have the power to enchant.
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 (firstname.lastname@example.org). 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 email@example.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.
Today there was a temporary injunction hearing. During the hearing the judge did not grant the injunction, but did request that we come back for a more thorough hearing, where we would be able to provide evidence in our defense.
Truth is an absolute defense to defamation.
Therefore, If you are willing, I need help with the following:
Individual authors, editors, cover artists willing to testify, either in person, via telephone or in an affidavit to payments made/not made.
It would be best if you could testify in person, but a sworn written statement will be adequate.
Additionally, if you have any Screenshots of any public statements regarding Ellora’s Cave, those would be helpful too.
To those who follow the digital romance publishing world, it’s not exactly a secret that digital publisher Ellora’s Cave is struggling. But now the company is suing a leading romance blogger who wrote about the problems it was having.
Ellora’s Cave, launched in 2000, was a very early player in romance ebook sales and for a time was highly successful, selling romance and erotica titles that mainstream publishers had ignored to a passionate audience of female readers. Then things began falling apart, sales decreased and authors started going unpaid.
Dear Author, a romance blog that also covers a variety of digital publishing issues,reported thoroughly on Ellora’s Cave’s troubles earlier this month, citing tax violations by Tina Engler, the company’s founder, and reporting further on delayed or missing author payments. Dear Author also published an email that Ellora’s Cave sent to its authors in which it described a “quick, sharp decline of ebook sales via Amazon in recent months.”
. . . .
Litte, who is also a lawyer, plans to fight the lawsuit and tweeted Monday that she’s hired Marc Randazza, an attorney who specializes in the First Amendment and also played a key role in bringing down patent troll Righthaven.