Ellora's Cave Publishing, Inc.

Deirdre said:

Dismissal order in the Ellora's Cave v. Dear Author case filed today. Interesting is that the settlement apparently specified "without prejudice" (meaning parties can refile). Doc (and rest of docket) here.

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You mean they might have to go through all this again?!

So, does that pretty much make this a successful SLAPP suit?

ShaunHorton said:

So, does that pretty much make this a successful SLAPP suit?

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The original post is still up, right?

Let me just check.

Yes, here it is. http://dearauthor.com/ebooks/the-curious-case-of-elloras-cave/

Let's not forget it... in fact, let's remember to link to it frequently! http://dearauthor.com/ebooks/the-curious-case-of-elloras-cave/ http://dearauthor.com/ebooks/the-curious-case-of-elloras-cave/ http://dearauthor.com/ebooks/the-curious-case-of-elloras-cave/

So, no, I don't think this was a successful SLAPP suit. I think it was just a colossal waste of time, energy, and money. As Courtney Milan pointed out, the only winners in this case were the lawyers.

Deirdre, does the judge's approval/dismissal mean that Ann Jacobs' motion to intervene is dead in the water? Or still active because of the "without prejudice" bit?

Deb Kinnard said:

Dierdre, does the judge's approval/dismissal mean that Ann Jacobs' motion to intervene is dead in the water? Or still active because of the "without prejudice" bit?

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The "without prejudice" has no direct effect on Ann's motion. I'm kind of surprised the judge didn't also rule on the motion at the same time. I expect that will happen in the next week or two?

Many of the authors gave evidence in the case, and some were waiting for the case to conclude, not wanting to muddy the waters.

black13 said:

Many of the authors gave evidence in the case, and some were waiting for the case to conclude, not wanting to muddy the waters.

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I have to wonder how EC's suit got any purchase in the first place. For a post about them to amount to libel/slander/defamation, doesn't it have to be false? If the authors were willing to provide evidence of what the post was about in the first place (not getting paid, etc), how did EC not get laughed out of court?

Because the US court system is a strange and wonderful place, and SLAPP lawsuits occupy even weirder territory. Also, the judge may not have had a strong understanding of the ins and outs of publishing, and have allowed the case to proceed thinking it was a more standard situation.

To my mind, the case should have been shut down the moment the RWA/Marks exchange became public. Because that admission of late payments (and the date of the exchange) invalidated EC's previous claims against DA. But I'm no lawyer.

Huh, just got a check from EC for March through June 2015. Postmarked 12/30/15

Yeah, I got one of those too. Maybe it means they're going to catch up...

Maybe it means sometime soon I'll have all the royalty statements I need to prove lack of sales of my remaining books there so I can request reversions.

Glad to hear some people are getting some more $.

Just got my rights reversion request (my third one? fourth?) refused because my sales are still too high. I responded with a new reversion request, saying:

Please revert my rights to Home Ice based on the fact that I haven't been PAID for more than 100 copies in the past year and can therefore only assume that I haven't SOLD more than 100 copies in the past year.

If you reply to state that I have, in fact, sold more than 100 copies, please explain why I haven't been paid for those sales.

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I doubt it will work, mostly because they've shown no evidence of being persuaded by reason or facts when they could resort to blind refusal instead. And, really, their "request and then wait six months" policy is fairly useful to them, since it gives them a six month cushion to get caught up on royalties before the reversion request is considered. So the request I've just made won't be considered until August 2016, at which point, if they're still in business, they may conceivably have paid royalties for the 12-month period ending today, which is the 12-month period that will be considered when looking at rights reversions.

It's like they PLANNED for irresponsible royalty payments when they wrote their contracts!

Oh well. This is just a low-selling little novella. Maybe it's an important part of a novelist's growth to see at least one project swirl around through bankruptcy proceedings; I should start thinking of this as a learning opportunity rather than an annoyance!

AnneMarble said:

You mean they might have to go through all this again?!

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If they do have to go through it again, I hope it's with lawyers and judges that are better versed in not only publishing law and the freedom of speech latitude afforded to blogs as being opinions rather than news outlets, but slander/defamation/libel laws as well. For a post by Dear Author about EC to be any of the three, it has to be false. If Dear Author has authors that are willing to present proof of the statements made, then EC has no case. It should never have gotten this far.

Lepplady said:

If they do have to go through it again, I hope it's with lawyers and judges that are better versed in not only publishing law and the freedom of speech latitude afforded to blogs as being opinions rather than news outlets, but slander/defamation/libel laws as well. For a post by Dear Author about EC to be any of the three, it has to be false. If Dear Author has authors that are willing to present proof of the statements made, then EC has no case. It should never have gotten this far.

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In a state with anti-SLAPP legislation, it wouldn't have. Unfortunately, Ohio does not have that, which means it doesn't matter who the lawyers and judges were. Also worth noting--DA's lawyer is extremely experienced in dealing with these types of issues. I question a lot of his decisions regarding this case, but it'd be difficult to find a better-versed lawyer than him. https://popehat.com/2012/03/15/marc-randazza-first-amendment-badass/

caromora said:

In a state with anti-SLAPP legislation, it wouldn't have. Unfortunately, Ohio does not have that, which means it doesn't matter who the lawyers and judges were. Also worth noting--DA's lawyer is extremely experienced in dealing with these types of issues. I question a lot of his decisions regarding this case, but it'd be difficult to find a better-versed lawyer than him. https://popehat.com/2012/03/15/marc-randazza-first-amendment-badass/

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It's always good to remember that legal strategy is determined by not just the lawyer, but the lawyer in partnership with their client. Jane's an administrative law judge, so she's got significant court experience of her own. We don't know why some of the decisions were made the way they were, only the result.

Deirdre said:

It's always good to remember that legal strategy is determined by not just the lawyer, but the lawyer in partnership with their client. Jane's an administrative law judge, so she's got significant court experience of her own. We don't know why some of the decisions were made the way they were, only the result.

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I'm thinking money had a lot to do with it. EC has lots. DA doesn't.

Lepplady said:

I'm thinking money had a lot to do with it. EC has lots. DA doesn't.

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If that's true it would be nice if they'd pay on time.

Eh, if they had lots of money, they could have gotten a lawyer with actual experience in defamation cases. And paid their authors, editors and cover artists.

If they'd paid their authors, editors and cover artists, they'd have saved the cost of the lawyer.

I suspect they didn't have the money in the first place, and just kicked the legal debt down the road along with all previous debts.

The DA suit is not over, I think - in the sense that it can be revisited anytime the parties feel especially wronged. Jane knows more about law than I do, and Randazza is very, very good. I can only wonder that in this case they were hampered by the judge's inexperience with publishing. For most purposes, it's on to a new chapter for everybody. I wonder what the authors are going to do now, as a group or solo.

And now authors are reporting that the 1099 forms they receive are inaccurate.

Doesn't really matter to me, because I'm Canadian and have to figure out my own income anyway (b/c of currency exchange). But for Americans? Another pain in the ass.

On the plus side, maybe it'll trigger an IRS audit?

If enough people call the IRS to complain, then maybe.

The IRS will only tell the EC authors to contact EC with any errors to get a new 1099 issued. I work in a bank and we get dozens of calls and letters daily from customers disputing transactions and incorrect amounts on their 1099s ("Yeah, I called the IRS and they told me I had to call you guys" is a common start to myriad phone calls I got when I was in the call center) so I doubt the IRS would do anything based on the number of calls or letters they might get.

The professional behaviour from Ellora's Cave continues, with Jaid Black making two aggressive Facebook posts: https://www.facebook.com/jaidblack

Not really new enough to be worth commenting on, except I think it's interesting that Jaid now seems to be admitting that they're behind on royalties b/c they can't afford to pay them. In the e-mail response to an author asking for rights back, Jaid says, "falling being [in payments] one year post-defamation is a RESULT of defamation," which only makes sense if they're behind because they have no money, rather than being behind because they're having trouble with accounting systems or whatever.

Which, again, isn't really news to anyone paying attention - but it's nice to see them telling the truth, even if it's only accidentally.