A couple of things on the EC v DA suit (the Ann Jacobs update)

22 Aug

Ellora's Cave sues Dear AuthorAfter a few months of quiet, shit is getting real (h/t to Courtney Milan).

Ellora’s Cave author Ann Jacobs has filed a motion to intervene as a third party in the defamation lawsuit against Dear Author. Ms Jacobs also filed a counterclaim to the suit.

Courtney Milan is hosting both documents (motion to intervene, counterclaim), and she also explains what this means, here. Deirdre Saoirse Moen discusses her own perspective here.

I call your attention to the discussion, in Ms Milan’s blog, of what this motion by Ms Jacobs can mean for all the many–oh so many!–Ellora’s Cave authors, and other subcontractors, who can make the argument that the publisher breached its contracts with them. The fact that a class action against Ellora’s Cave, that would benefit people who have been mistreated–late payments, incorrect royalty statements and checks, derogatory statements by Tina Engler/Jaid Black about the very people who made EC succeed, and more–is legally possible…

“Those words–“other similarly situated authors” sound like a shot across the bow.  The fact that there are other similarly situated authors is not relevant to Jacobs’ claim in and of itself. But those words are the language of class actions. If Jacobs’s allegations are true, and if many multiples of books by many authors are vulnerable to this claim, the potential liability here on the part of Ellora’s Cave is massive.”

“In fact, the beauty of a class action is that author coordination is not necessary. The threat is that it involves all the EC authors who aren’t willing to actively rock the boat because the checks are still somewhat coming, maybe, even if they’re not that much, but who would be delighted to passively allow a class action suit to rock the boat on their behalf.”

I am absolutely delighted to see that several different versions of Ellora’s Cave contract are part of Ms Jacobs’ counterclaim. Finally, after years of rumors about the draconian terms of these contracts, we have some solid facts to discuss.

And while yes, I’m perfectly aware that this does not affect people who signed contracts under the new terms, I’m also positive that there are plenty of authors who have had books with EC from well before the publisher changed the terms–last time I looked, EC listed eight to nine hundred authors under contract.

~ * ~

Off the top of my head I can reel off a number of names of authors who have been trying to get their rights to different books reverted after fulfilling the conditions stated in their contracts, only to be asked to pay rather extortionate sums for the privilege–Cat Grant, Zenobia Renquist, Paige Thomas, Lolita Lopez, Angelia Sparrow.

I am not a lawyer, nor do I play one online or anywhere, but I wonder. Should EC be found in breach of contract in Ms Jacobs case, and/or should a class action happen, would these authors who paid be able to participate and get some money back? Would authors who have been trying to get their rights back for months on end–all conditions met, all communications on time, etc–get some legal redress?

And then, there is the long-ass list of EC authors who have been complaining of late, inaccurate royalty payments for years–I will refer you to this thread on Writer Beware, all 1300+ posts to it, for individual complaints and commentary going back…forever, it seems. For current events, start here.

~ * ~

For those of you who don’t know what I’m talking about, back in late September 2014 Ellora’s Cave sued Dear Author for defamation. The lawsuit cited a long, detailed, and well researched article by Jane Little about shenanigans going on with the publisher, going back years.

You can find all the links in this post, and in the trackbacks, by all manner of interested parties: other bloggers, previous and current EC authors, a couple of lawyers who write on publishing, and so on and so forth. You can find all updates and notes on this blog collected under this tag. I have also posted brief updates and linkage over at Karen Knows Best, under this tag.

In the past few months, as the case is on discovery, there have been very few things to report. Deirdre Saoirse Moen maintains a cheat sheet with updates of, and links to, the different public filings, for those who want to see what’s what.

A few quick highlights:

Shortly after the suit, Courtney Milan started using #notchilled to comment about the allegations, the case, free speech, etc.

Very shortly after that, a twitter account going by PubNt was created. The account constantly flooded the hashtag with vitriol and absurd allegations that indicated a) lack of comprehension of the law, and b) inside knowledge of Ellora’s Cave business.

Eventually, Dear Author submitted a list of witness to depose. You’ll see that the twitter account was listed, and twitter subpoenad. TiNut, as I call it,¹ fought the quash the subpoena, and lost (rather spectacularly, too–read John Adams’ order here).

After that, it seems that the plaintiffs (aka EC) have missed to post status updates with the court, while the defendants have done so in a timely manner.

~ * ~

Through all the happenings, Jaid Black has continued to maintain a fairly defiant social media presence, punctuated by occasional flounces. In the last few months, she deleted her twitter account, posted passive aggressive rants on how media is always slanted against her (woe is her, poor little victim that she is), with the occasional ill-advised rant and rail against those ‘bad apples’ who are trying to smear her *snort* pristine *snort* reputation, and so on and so for. Until, apparently, some time yesterday, when her facebook page poofed out of existence.²

I have not seen screencaps to the last rant posted before the account went dark, though I’ve seen a few references to it in a couple of places. I know there are those who feel that it would be wrong to share it, but dammit, I’m curious.

~ * ~

¹ I am not the only one who thinks that PubNt was actually Tina Engler/Jaid Black, at least 95% of the time.

² Not really. Not only are there plenty of people with screen shots of these whiny rants, but I’m pretty sure facebook keeps records for a good long while. Else, how can it restore accounts when individuals challenge it and win?

13 Responses to “A couple of things on the EC v DA suit (the Ann Jacobs update)”

  1. willaful 22/08/2015 at 2:52 PM #

    I’ve heard tell of people returning to facebook after deleting their accounts and finding everything still there. Which completely fits in with everything we know about Facebook.

  2. Kate Sherwood 22/08/2015 at 3:52 PM #

    Do you have confirmation/clarification of the “all conditions met” aspect of the authors trying to get their rights back and being refused? It was my impression that these authors weren’t meeting the “annual sales below 100 copies” requirements. (That’s what’s been getting in the way of me getting my rights back).

    I’ve heard some stories about the 100 copies being manipulated by including FREE copies in the number, which certainly sounds like an abuse, but I don’t think I’ve heard of refusal to revert when the sales were below the threshold.

    And it sucks for authors to be stuck in this contract more-or-less forever, but it IS according to the terms of the contract we signed. Of course, the contract also specified that we be paid on time, so it’s a bit frustrating for EC to freely breach the payment term but not be flexible on the rights reversion term. (And when I say “a bit frustrating” please magnify that by roughly a million).

    But if I’m wrong about the authors meeting the low-sales threshold, then EC is being even more outrageous than I thought they were…

    • azteclady 22/08/2015 at 4:06 PM #

      I don’t have evidence myself, but I know Angelia Sparrow had to resort to a public notice, because EC kept selling books that had met the sales threshold and for which she had followed the steps to have the rights reverted. Then there’s this anon comment at Deirdre Saoirse Moen’s blog.

      I have no way of knowing, of course, whether the anon commenter was/is an EC author, but I think it’s a reasonable assumption.

      • Kate Sherwood 22/08/2015 at 4:15 PM #

        No, fair enough – I hadn’t seen those links.


      • azteclady 22/08/2015 at 4:21 PM #

        You’ll note that Ms Sparrow’s note is from last October–and that she mentions having requested right reversion in Augusts 2013.

        Outrageous, indeed.

  3. Lori 23/08/2015 at 3:58 PM #

    I don’t understand why JB didn’t just sell the company ages ago and walk away with a tidy profit. She obviously stopped caring ages ago and she could have sold it for a brilliant profit (I imagine).

    • azteclady 23/08/2015 at 4:11 PM #

      This is pure speculation, but I think JB’s ego is closely tied to the success-whether real or fabricated for public consumption–of EC.

  4. Kat 24/08/2015 at 3:22 AM #

    I think I only understand about half of these updates (and only because Courtney Milan is so good at explaining them). Did they ever find out who PubNT was? Or is that still pending?

    • azteclady 24/08/2015 at 6:07 AM #

      As far as I know, twitter had to provide information as to the identity of PubNt. After that, if I understand correctly, that person (or persons) had to be subpoenaed directly–and I have no idea whether that has happened or not, or the results of that/those subpoenas.


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