FOULED! Part 4: Suing the Scammy Publisher – the Nuclear Option
You've asked your publisher to edit and format your book correctly, and it hasn't been done. You've asked for the rights to your book, and your publisher has either refused or told you you'd have to pay a fee to get them back. Now you're just sick of the whole thing. You've paid these people a lot of money and you've gotten nothing in return but a lot of aggravation and ruined dreams. What can you do?
You can sue them. Unfortunately, even that may not get you very far.
Your first problem is going to be finding an attorney. Lawyers don't come cheap, and it's by no means assured that you will prevail. Some authors try to find an attorney to represent them on a contingency basis – that is, the lawyer gets paid only if the author wins. But Victoria Strauss with Writer Beware told me lawyers typically won't agree to that unless there's a big payout involved, which is unlikely in the case of a deadbeat publisher.
If you're broke, you might find a lawyer who will agree to represent you for free. Writer Beware has some suggestions for finding a referral to a pro bono attorney. For example, many U.S. states have chapters of Volunteer Lawyers for the Arts, and other countries have similar organizations. Alternatively, if you're a member of a writers' organization, check the list of membership benefits; sometimes, they include legal advice. (You may also find some help on Indies Unlimited's legal resource page.)
One thing that talking to a lawyer can help with is pinpointing the grounds for your suit. Strauss told me, "I often hear from authors who want to sue their deadbeat publishers, but much of their dissatisfaction stems from either a lack of research ahead of time, or the author's own unrealistic expectations. Many deadbeat publishers are deadbeat by design, and carefully craft their contracts and procedures to enable them to do nothing while appearing to promise much. You may be furious that your publisher's promises of promotion amounted to a press release – but your contract will probably be worded to make that completely defensible on the publisher's side."
So maybe a class-action lawsuit would be the answer. After all, vanity publishers are big businesses with deep pockets, and authors are neither. With 180,000 authors signing up with Author Solutions alone over the past few years, you wouldn't think it would be hard to find enough people to band together and make it work – especially now that it's been confirmed that Author Solutions, Inc. (ASI for short) is handling assisted-publishing packages for Nook Press.
In fact, class-action suits have been filed against vanity publishers over the years with varying degrees of success. Vantage Press has been sued by authors left high and dry after it went out of business in 2012; in an earlier lawsuit, Vantage was ordered to pay 2,200 authors punitive damages totaling more than $3.5 million.
Similar suits against PublishAmerica became almost an annual occurrence before the company changed its name to America Star Books in January 2014. A class-action suit was dismissed in 2012; another was subsequently filed in 2013, and was also dismissed.
One of the law firms involved in the 2013 PublishAmerica suit is not giving up. Giskan Solotaroff Anderson & Stewart has also drawn a bead on ASI. This lawsuit, too, was filed in 2013, in the U.S. District Court for the Southern District of New York, and it's still going on. Partner Oren Giskan told me his team filed a motion to certify the class last month. This comes after the judge hearing the matter dismissed Penguin Random House as a defendant on the grounds that the events alleged in the case occurred before Penguin purchased ASI.
Giskan said between 300 and 400 authors are currently part of the class, and his firm is still accepting requests from authors who want to be involved. If you're interested, there's a form to fill out here.
But these cases take years to wend their way through the courts. Gisken told me he expects it will be a couple of months before the judge rules on the class certification. Only after that does the case have a chance of going to trial.
I know how discouraging all this sounds. But just think: today, we don't have to deal with these scammy publishers at all. Today, we can go indie.
Remember our Moldovan author? As the IU minions advised her on what to do, she said, "But why are you helping me? You don't even know me!"
It's because that's what indies do.
So please share this info far and wide, okay? Too many of us have fallen prey to deadbeat publishers, and it needs to stop. Let's all agree right now: Authors don't let other authors get scammed.
And one last thing: please don't forget to fill out our survey, if you haven't already done it. Thank you!
Author: Lynne Cantwell
Lynne Cantwell grew up on the shores of Lake Michigan. She worked as a broadcast journalist for many years; she has written for CNN, the late lamented Mutual/NBC Radio News, and a bunch of radio and TV news outlets you have probably never heard of, including a defunct wire service called Zapnews. But she began as a fantasy writer (in the second grade), and is back at it today. She currently lives near Washington, DC. Learn more about Lynne at her blog and at her Amazon author page.	View all posts by Lynne Cantwell
Author Lynne CantwellPosted on March 26, 2015 March 23, 2015 Categories Staff ArticlesTags #PublishingFoul, lawsuits, legal issues, predatory publishers
26 thoughts on "FOULED! Part 4: Suing the Scammy Publisher – the Nuclear Option"
"It's because that's what indies do." I love that. Because it's true for so many of us. We've learned that collaboration trumps competition. That's what makes Indie publishing viable.
Lynne Cantwell says:
Yup! A rising tide definitely lifts all boats. 🙂
Good points, Lynne. Unfortunately, the legal system is not meant for those who only want small amounts of recompense (filing fees alone could be hundreds of dollars, and that's not even inlcuding the time you take off of work to go to court). Plus, winning a lawsuit (default judgments happen all the time) is a lot easier than actually collecting (especially if your bad actor declares bankruptcy). Just ask single parents waiting for child support. People who don't want to pay, often don't, despite a ruling against them.
Class action lawsuits also tend to be about paying the attorneys filing the suit, rather than the victims. Anytime I've been affected by a class action suit, my reward has been a coupon or something tantamount to a few dollars. Yes, the company suffers, and that's part of the point. But, the victims rarely get much.
Not that I'm trying to sound like a big ball of unpleasantness, but dealing with scammers is just unpleasant. It's one of the reasons they get away with so much. Trying to get them to do what's right is an uphill battle, and they know most people won't fight it. However, I think telling your story is important, as are the class action suits. If enough people fight back, maybe we'll turn the tables and the scammers will start to feel it's an uphill battle for them, and finally stop.
Good points all, RJ. I think the only way the scammers will stop is if we make it unprofitable for them. That involves a two-pronged attack: dissuading newbies from doing business with them by telling real stories of victims' results, which is what we've been doing here all month; and hassling them, so that they have to spend time and money defending themselves. That's the real usefulness of a class-action suit — which, as you point out, often means a payday for the lawyers and peanuts for the plaintiffs.
I meant to include in this piece that getting a class certified is no cakewalk. Different authors will have different non-performance issues — that is, some will be upset with the editing, some with the marketing, some with the constant barrage of ads for their own books. But everybody in the class needs to have the same issue for a judge to approve the certification.
marc twine says:
…Luv it !! "Payday…&…peanuts"…
Until the legal system is reformed, namely disallowing contingency fees & lawyer opportunism, we're destined for never-ending litigation.
Hey lawyers…I pay for your work. You are not entitled to a percentage of mine.
My mechanic isn't entitled to drive my Mercedes.
And, I ain't a lawyer. And don't got no Mercedes.
The legal system is a big "B" word to take on. Stressful, expensive and often not satisfying for most of us. Especially in this case.
I was involved in a class action law suit but I got no compensation. It was a waste of my time and energy. Still, it did feel good to share my story. Sadly, only the lawyers heard it.
What you have been sharing this past month has been very valuable and educational and I have been heard! That is the best feeling. If it helps others then it is worth us all having to think about all the unpleasant things we have had to go through.
Cheers to you and Indies Unlimited!!!
You're welcome, Brenda! Glad to have been able to give you a podium. 🙂
Linda Lee Williams says:
I have shared this entire series "far and wide." Authors need to be educated in order to make informed choices and not be taken advantage of. It would be wonderful to compile all of this information in a book. I bet it would be a bestseller!
Not a bad idea! Maybe that should be our next IU title. Hey, EM and Kat — what do you think? 🙂
Sound interesting. Unfortunately, this information is timeless.
Yeah, no kidding. 🙁
I just saw at Writer Beware (via David Gaughran's Facebook page) that the law firm that filed the class-action suit I mentioned above has filed a second one against Author Solutions this week. More info here:
http://accrispin.blogspot.com/2015/03/second-class-action-lawsuit-filed.html
Malcolm Campbell says:
Why can't the writer sue the publisher in small claims court?
Depends on the amount of money we're talking about, as well as the way the contract is written. The contract may include language indicating that any legal actions must be filed in a certain jurisdiction — usually one inconvenient to the author.
Tui Allen says:
Woops I made a mistake on your survey. When you said, Have you ever PLACED a book with a bad publisher, I responded yes but should not have. I took "placed" to mean just sent it to them. I did send it to them and they sent me a contract. I got so excited and jumped around the room and thought I had arrived. But when I showed it to people at the New Zealand Society of Authors, and also my friend who is a contracts lawyer, both parties warned me off. I did not sign.
It was not true vanity publishing. It was something I see as being more dangerous because it is less obvious. I call them the "borderliners."
You can recognise true vanity easily because they ask for money, but these people did not ask for money. Nor did they offer it. However, I was informed by my helpers mentioned above, that there was much in the contract of great value to the publisher but little in the contract of any benefit to me.
I've never regretted not signing. I self-published and made some money from it. I chose to donate most of the book's earnings to the Whale and Dolphin Conservation Society. If I'd signed I would have nothing to donate. Worse I would have lost my rights. I'm now very very glad I still own them as it is turning out.
Sounds like PublishAmerica's schtick, Tui. They too didn't ask for any money upfront, but they would pile on the costs once they got you under contract. Good for you for not signing up. 🙂
Rather depressing but still very useful information. It's amazing how much grief and heartache these jerks can cause with very little accountability. Obviously the big lesson is: stay away. I hope our series has saved other authors from the pain. Good on you, Tui, for checking it out before you signed!
I hope our series has saved some authors, too, Melissa, and I also hope it will be a resource for years to come. 🙂
A.C. Flory says:
Great roundup of the available options, Lynne. Part of me is disgusted that our legal system[s] are skewed so neatly in favour of the scammers, but the thing that resonated with me the most was that the best hope for many authors are other authors, and sites like Indies Unlimited, Writer Beware etc.
Now we just have to keep telling others until every author knows where to find help.
I know I'm going to keep shouting, Meeks. 🙂 Thanks!
Jackie Weger says:
Melissa! I love this series. Every single indie author or aspiring author needs to read it and hold it dear. I was raised that integrity counts. Businesses used to guard their integrity. It is scary that name brand publishers, long trusted, and B&N Nook are willing to put their own brands along side Author Solutions as partners. I don't want to do business with either of them. I hate to see this series end.
Best, Jackie Weger
Thanks, Jackie. 🙂
I expect we'll be revisiting the topic here at IU for quite some time. 🙁
Carolyn Steele says:
Occasionally you can get lucky by pretending to sue. 😉 When I told AuthorHouse I'd been in communication with the lawyers preparing the class action lawsuit against them, it was true. I'd been in communication! And they had thanked me for my story, it helped establish a pattern, then advised that they couldn't represent Canadians. However, the implicit threat was enough to *finally* get them to take their old version of my book off Amazon after many, many fruitless hours on the phone.
Yup, sometimes just the threat of legal action is all it takes. Good for you, Carolyn, but sorry you had to go through all of it.
T.D.McKinnon says:
Terrific round up, Lynne, to an excellent initiative.
Thanks, TD. 🙂
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