A few not-so-brief thoughts (EC v DA)

So DA and EC settled. Well. Huh. #notchilled

— Courtney Milan (@courtneymilan) October 22, 2015

So.

That happened.

And #notchilled basically exploded.

For any of my readers who are not aware, erotic romance/erotica publisher Ellora’s Cave filed a defamation suit against the blog Dear Author, and the blog’s founder and owner, Jane Litte aka Jen Frederick.

The basis for the lawsuit is the publication, back in September of 2014, of The Curious Case of Ellora’s Cave. If you have a few days to spare, there are a number of interesting posts written about the case in the intervening thirteen (ye gads!) months. You can find links to quite a few of those at the bottom of this post. (Please note that I have continued to add new links at the end, particularly to Courtney Milan’s and Deirdre Saoirse Moen’s posts explaining some of the legal stuff in layman terms.)

Yesterday, there was a hearing in the case, regarding the cut off deadline for discovery for the defense.

Apparently, the plaintiffs and their lawyers don’t see the word ‘preliminary’ as meaningful–but then, as seen previously in the Brashear v Ellora’s Cave case, this publisher’s principals have never been particularly keen on producing evidence through discovery.

Delaying, evading, and spoliation of evidence seem to be standard operating procedure for Tina Engler/Jaid Black, founder, and Patti Marks, her mother and Ellora’s Cave CEO.

At any rate, it appears that the meeting lasted all of twenty minutes, and a settlement was reached.

Like most–all?–settlements, the terms are probably confidential.

I doubt that any of the actual facts of the settlement will ever be made public. Remember the Brashear case? Yeah, it dragged for years, and to this day, we don’t know if Ms Brashear ever saw one red penny from them.

Which means not only that we interested kibitzers will never know whether the subpoena for the identity of TiNut actually produced names; it means that not one of Ellora’s Cave authors, editors, cover artists, and any other interested parties who suspect their checks do not reflect actual reality, will learn anything about the state of Ellora’s Cave’s books.

~ * ~

What follows is pure speculation–which, in case Jaid Black/Tina Engler, Patti Marks and/or any other people associated with Ellora’s Cave read this post, is opinion and therefore protected by the First Amendment.

As I said, so far nothing has been said publicly about the terms of the settlement. However…

As I type this, The Curious Case of Ellora’s Cave is still up at Dear Author, so it would seem taking it down was not part of the conditions to settle.

There is also the fact that Marc Randazza is famous for, among other things, employing ‘scorched earth’ tactics in litigation. The whole murum aries attigit thing.

And let’s not even discuss just how appallingly outclassed Ellora’s Cave lawyer was, when compared to Randazza. Just take a look at the at the docket (posted here in its entirety, courtesy of DSM). Randazza’s filings are well written, have a boatload of citations, and are backed by multiple exhibits–many of which are depositions from former Ellora’s Cave authors, editors, the freaking executive director of Romance Writers of America, to list but a few. Mastrantonio’s filings are badly written, have little to no citations of law, and basically no actual, verifiable evidence to support the claims therein.

From those two things, I would speculate that the terms of the settlement are more favorable to Dear Author than they are to Ellora’s Cave.

Will Jane ever see a penny back for her own lawyer and travel expenses? I doubt it–even if that happens to be a condition of the settlement.

Why would I think that, you ask?

Well, I keep going back to previous history with JB/EC, PM and Ellora’s Cave. The whole reason behind Brashear v Ellora’s Cave was that EC and company would not pay her what she was owed, and when she, as a minority shareholder, asked to see the books to see whether she was right in her suspicions, two years of “malingering, malfeasance, sabotage and delay” (in the words of Judge Lynne S. Callahan–see full epic smackdown here, courtesy of Deirdre Saoirse Moen) ensued.

There’s also the fact that many authors have posted in social media–notably, to #notchilled–that they had not received royalty checks since February. Keep in mind, it’s October–we are not talking two or three months, we are talking eight months between royalty checks.

There’s the fact that Marc Randazza actually filed a motion with the following footnote:

“Further, Ellora’s may be planning for bankruptcy even at this time – but have refrained from doing so in the hopes that this SLAPP suit will bear fruit. In fact, Ellora’s counsel has reported to the undersigned on numerous occasions that Ellora’s has failed to pay his bills.”¹

Furthermore, it appears that the main partner of the law firm that Ellora’s Cave chose to represent them in a defamation case…just happens to be a bankruptcy lawyer.²

Whaddayaknow?

~ * ~

So, what now?

Well, once again, seeing that The Curious Case of Ellora’s Cave is still up, I’m calling that at least a win for free speech.

If we see any more posts on Dear Author talking about further shenanigans involving Ellora’s Cave, TE/JB, Patti Marks, etc., that would be further indication of just how bad things were looking for TE/JB and company, and if so, I would call that a further win for free speech.

For the many people, particularly authors, who are yet to see the monies due them? Yeah, not so much. Vindication doesn’t pay the mortgage.

Then again, regardless of how the case ended–even if it went to trial and Dear Author won–this case itself was not about the authors and the money owed them. With the possible exception of Ann Jacobs, if the judge ruled to allow her to join, none of the many authors who are owed money by EC would have seen any money from this lawsuit.

At best, they would have seen some evidence of the company’s financial status from whatever Dear Author filed with the court, as exhibits, after discovery. That might have been useful in further litigation brought against EC.³

The question remains: what now?

For the many authors who have not been paid the money owed them by Ellora’s Cave, I believe there are some alternatives still open to them.

For example, Ann Jacobs has stated that her lawyer has talked to other Ellora’s Cave authors (former? current?) who are in similar situations to hers–to wit, where they are not satisfied that the royalties they’ve been paid correspond to what they should have been paid under the contracts they signed.

Then, there was talk in #notchilled that several authors acting together could force Ellora’s Cave into involuntary bankruptcy–which would force EC to open the books.

Whether that would result on any authors or other creditors seeing any money from EC, is another matter entirely. (I vote, “no,” by the way–see this, and this, and this, and this.)

~ * ~

There is some speculation floating about that TE/JB et al have money stashed offshore, and plan to abscond to parts unknown to enjoy their ill-gotten gains. Personally, I think that gives these people way too much credit–it presumes they were planning ahead.

I sincerely doubt that there’s any money, anywhere.

From where I sit on the sidelines, it seems clear that TE/JB et al have been spending money, for the last few years, at the same rate as they were back when they could legitimately claim to be the largest, most profitable digital publisher of erotic romance–back when Forbes actually wrote about them.

Those days have long been over, but–going by fairly recent press–TE/JB hasn’t read that memo. Or perhaps it’s more accurate to say, whether or not she got the memo, she refuses to accept it as the reality it is.

After all, in TE/JB’s world, she’s both a civil rights activist and a victim of “social justice warriors.”

~ * ~

Finally, a word of caution: whether the terms of the settlement were more favorable to Dear Author than to Ellora’s Cave or not, I doubt that there are any conditions there that would deter EC and company from suing other people for defamation. In that sense, I believe the settlement is definitely more a loss than a win for free speech–unless EC is forced to pay Dear Author and Jane Litte/Jen Frederick a substantial amount, and in short order, I doubt settling with them would be a significant deterrent to sue other people, regardless of the actual merits (or lack thereof) of the case.

It probably costs EC relatively little to file suits (and even less if they don’t, you know, pay their lawyer), but a suit like this could easily bankrupt their target. Very few people can count on raising well over $50K in four days for a legal defense fund, and most everyone commenting on this issue are nowhere near as well off as Jane Litte/Jen Frederick is (not only is she a lawyer, she’s also a fairly successful author).

This settlement is not a shield against a defamation suit. If you choose to speak out, do so while aware of the risk.

Me, I have no money to speak of, but I’ll be damned if I’ll refrain from publishing my constitutionally protected opinions based on legal filings, public records, and TE/JB’s and Patti Marks’ own words and actions. Your mileage may vary, and so on, and so forth.

~ * ~

¹ It’s worth noting that, as Courtney Milan said, even writing that down was a dick move, whether Randazza actually intended the motion to be filed without the footnote or not. Further, the dick moves continued as both lawyers filed motions calling each other liars at best, lacking in ethics at worst.

² Though, frankly, I doubt TE/JB’s ego would let her actually file for bankruptcy. Her attitude seems to be, “better to go down in flames while blaming everyone else, than to act like a sensible, rational adult.”

³ I am not a lawyer, I don’t pretend to be a lawyer, this is not legal advice, etc.