Class Action Lawsuit Against PA

[Llogan65]

Unfortunately, I am one of the many writers who signed with PA before realizing that they were not a "conventional" publisher, which I mentioned in an earlier post. After killing myself to get my book into bookstores (frequently working 10-18 hour days to do so, exclusively on marketing as I've been a full-time writer since 2004) and constantly working to get radio and TV interviews as well as interviews with newspapers and such, the royalty check that I received today in no way reflected my efforts as I've seen my ranking on Amazon rise every time I'm on the radio or do a reading at a local school, etc.! Not to mention the fact that I've advertised my book on quite a few online sites as well! Plus, I was college instructor for many years, and the number of emails I received from former students alone who bought my book during this royalty period exceeds the number of books sold according to PA.

And I'm sure many of you reading this post feel just as cheated if you've gotten your pitiful checks as well.


Or if you were happy with the proceeds you received, DEFINITELY let me know. I'd love to hear from ANYONE who received a substantial royalty check from PA before launching into an expensive legal battle that might be fruitless because we all know that PA does not do any marketing for their authors at all, and maybe my efforts just weren't enough. Afterall, does anyone really have a clue as to how Amazon rankings work? I have no idea how many books I sold when my book's ranking goes from 339,000 to 42,000 in one day or from 546,000 to 5,600-something as it did in July. And I know that I won't get paid for the books that I sold in July, assuming Amazon has not paid for those invoices. But I've seen my rankings soar at other times during this last sales period covered by my insanely small check, and the numbers just don't reflect my presumed sales, but again, I have no idea how my ranking on Amazon and other sites translates from theoretical numbers to cold hard cash. I could be right, and PA is juggling their books hoping no one will ever challenge them, or I could be wrong, and my sales were not as high I thought they were. However, until I get a lawyer to subpoena the records from Amazon and Barnes & Noble and all the other retailers who carry my book, I have no way of knowing the truth.


Therefore, I am considering filing a class-action lawsuit against PA, and if anyone is interested in joining me, please email me at lynnelogan@columbus.rr.com. Having worked as a paralegal for five years, I don't believe that it will cost that much to just file the lawsuit and get records from vendors, but I don't know. It could be that none of us can afford the legal costs, so I'm not making any promises here. I'm just considering my options at this point (other than obviously looking for another publisher for my second book, which I've already been doing for months).

And emailing me about a possible lawsuit, of course, doesn't obligate you or any of us to do anything. I just want to know how many people might be with me once all the logistics are known. And I'm going to contact the newspapers and TV stations in Maryland once I have contacted a lawyer. Who knows, maybe just the buzz alone about a possible lawsuit, might get PA to "adjust" their royalty payments.


I have no idea what is involved in undertaking this type of endeavor as I only worked on the fringe of one or two lawsuits like this myself, and I may not be able to find an attorney who is willing to represent PA authors as I'm not sure what proof we'll be able to provide to convince an attorney there is a legal leg to stand on, but having other writers on the bandwagon before proceeding will go a long way in persuading a lawyer that there is a case here.


I have already sent out a mass email to every single person on my friends/family database as well as those on my newsletter list asking for everyone who bought my book during this royalty period to provide me with their date of purchase and name of the vendor if they can recall.


I'm also going to the Offices of PublishAmerica sometime this month to inspect their sales records pertaining to my book since they won't email or fax them. I requested their address some time ago in preparation that today's royalty check might be the same small pittance as the last.


So--whoever is with me or even slightly interested, email me at lynnelogan@columbus.rr.com. And anyone who knows an attorney who works in this area, PLEASE BY ALL MEANS--forward his/her name and contact information. I've made such inquiries in this regard but haven't talked to anyone yet.


THANKS!

Lynne Logan
Novelist/Award-Winning Screenwriter
Columbus, Ohio
www.deckerzane.com (http://www.deckerzane.com)

[Cathy C]

Therefore, I am considering filing a class-action lawsuit against PA

While I admire your motives and wish you well, Lynne--I fear you're not going to have standing to file suit. I'm also a paralegal and have worked in some class-action cases. The trouble is there's no SINGLE class to draw from. While lots of people are dissatisfied, it's for different reasons. Most of the lies PA spews are BEFORE the contract is signed. The contract itself doesn't promise things they don't deliver. They don't promise distribution. They don't promise marketing. It's all very carefully weasel-worded to avoid liability.

Now, you MIGHT succeed with failure to pay royalties and, if so--if you can find that there's a disparity between the records of PA and Lightning Source, then awesome! I'm not certain what it would take to open up LS's records to make the comparison, though . . . probably a subpoena. But WITHOUT the records, getting a subpoena will be difficult because the suit will be dismissed for lack of standing. :Shrug:

But please do continue and I wish you the best. If you can manage to bring them down this way, you'll be a true heroine! :Hug2:

[Llogan65]

Thanks, Cathy. I appreciate your comments. And for anyone who thought about contacting me regarding a class action lawsuit, don't waste your time. It's not a legally viable way to fight them.

I received an email from Phil Dolan who suggested I check out this website: http://p105.ezboard.com/bedandsootswritersguild (http://p105.ezboard.com/bedandsootswritersguild), which verifies that you can't sue PA via a Class Action Lawsuit because their contracts state you can only pursue litigation through Arbitration, which may or may not be a good thing.

The bad part about going through Arbitration, of course, is that your case could be dismissed by a judge before you even step foot in a courtroom. However, arbitration is cheaper, and I may only be able to proceed by myself. I don't know at this point. And, yes, my beef with them is nonpayment of Royalties Due. I've already gotten emails from friends and former students who bought my book during this past royalty period, and the number of people who bought my novel between February 1 and July 31 does exceed PA's records. I was also never paid for any online sales between November 2005 and January 31, 2006 because my last royalty check only covered the books sold through PA's website, according to the sales report I received at the time.

After contracting with PA, I soon realized that they were not going to do anything in terms of marketing my work, so I was not considering pursuing any litigation in terms of breach of contract in that respect.

Hopefully, I will be able to find an attorney who will pursue some type of legal action, so that I can subpoena Amazon's and B&N's records where most of my sales seem to lie.

Thanks again for your comments!

Take care.

Lynne

[Llogan65]

Cathy, you mentioned Lightning Source? What is that?

Sorry, I'm new to all this as prior to now, I only wrote short stories and screenplays. This is my first published novel and my first experience with a publishing house. You don't have to deal with all this crap when you sell a short story. The magazine buys it, and then they pay you when your story runs...and screenwriting, of course, is a whole different different animal!

??? So, help me out here?

Lynne

[JanDarby]

Standing for one person shouldn't be a problem; the allegation is either breach of contract (cheating on the royalties) or some sort of unfair and deceptive trade practices (the details of that kind of law vary from state to state). Putting together a whole class action, however, might be problematic, but it's a field of law that's very specialized and not one I have any experience with.

For a single plaintiff, the biggest hurdle will be in getting a lawyer to take on the case. It's not the sort of case (like auto accidents or worker's compensation) that many lawyers would handle on a contingency basis (where they only get paid if you win). So, you'd need to come up with a retainer, and I couldn't begin to tell you how much that would be. Well, okay, I could give you a starting point: Figure that many lawyers charge in the vicinity of $200 an hour, and they're going to want AT LEAST ten hours of their time covered up front (probably more), plus some additional monies for filing fees and related legal expenses (a deposition might be necessary, and thhose can easily cost hundres of dollars, not even counting the lawyer's time), and you're looking at somewhere in the vicinity of $5K to $10K as an absolute minimum retainer. With more monies due when that's used up. You might, possibly, get several authors to sue jointly (not officially a class action, but it might be possible to connect them somehow into a single lawsuit in the interest of judicial efficiency), and thus share some of the expenses. But the cost is still substantial. And what's the best-case scenario for your damages (the amount of royalties they owe you)? And under the American system of legal fees, the "winner" still pays her own legal fees, in most circumstances.

I don't want to discourage you unduly -- your best bet is to consult with a trial attorney who has experience litigating contract and consumer fraud types of cases, possibly one with federal court experience (depending on where you live, it might be heard in federal court, rather than state court), and see what he or she thinks and what would be needed as a retainer. That said, it's a tough case to win, and the defendant would have a huge motivation to spend whatever is necessary on legal fees in response, to prevent others from following your path.

Like Cathy, I do wish you the best. That might, however, involve cutting your losses and moving on with your life and your next book now, so keep that option in mind when/if you consult with a lawyer.

JD, not giving a legal opinion, just general legal information

[janetbellinger]

Thanks Lynne. I'm not sure that a class action lawsuit wouldn't stand though. Just because people agree to something in a contract does not mean that the coporation, individual, etc who offered the contract is not liable. For instance, there is no way of getting out of personal liability. Let's say a tavern draws up a contract holding themselves not responsible for injuries which might occur to patrons on the way home, perhaps while inebriated. People can sign that contract all they want but the law, at least in Canada says that the tavern owner is legally responsible for ensuring the patrons arrive home safely, if under the influence of alcohol. Wouldn't the same principle be applied to Publish America? It's not okay to scam people, regardless of what it says in the contract.

[Scribhneoir]

Lightning Source? What is that?


Lightning Source is the printer PA uses. They certainly know exactly how many books were printed, and since PA is POD, printed ought to equal sold. However, since their contract is with PA, not you, you'd most likely need a subpoena to get a look at their records.

[James D. Macdonald]

Lightning Source is one of PublishAmerica's printers. (We've found at least one other -- check out the back posts in the Old NEPAT for more on this.)

So far, every time PA has been taken to arbitration, PA has had to pay up. (If you wanted to make money off your PA book, it looks like this is the way.) In at least one case the arbitrator found that the contract was so defective that no contract ever existed.

I'm also told that PA's bookkeeping is in such disarray that they don't have a clue how many books they've sold or what they actually owe anyone.

Anyone who has proof that they sold more books than PA paid them for should pursue this. Drop a note to the IRS while you're at it.

[Bubastes]

Would a group like Volunteer Lawyers for the Arts be interested in taking on this kind of case? I know nothing about class action lawsuits, but I thought I'd throw the suggestion out there.

[allenparker]

PA's books are, from what I have seen in my audit, worse than a shamble. At this point, any author wanting out should just ask for an audit. They will refuse. Keep pushing and you will be released.

Of course, if you want money, a well placed phone call to any tax agency might offer some compensation if you can provide proof of their dealings.

Lightning Source is slow to give authors information. They will refer you to PA.

Persistence is a virtue. Grumpy persistence is a weapon.

Weapons beat virtue everytime.

[Bo Sullivan]

I know my royalties payments should have been higher than the pittance I received. One case in point is a book bought in May by a friend, who paid cash in a bookshop in London and 90 days went by and I got Zero! and another book I have with them earned me $2.00 when I know I sold at least 20 books.

Duped

[Deborah L. Reeves]

Lynne,

I'd be interested in taking legal action agaisnt PA. I know books sold this past 6 months, but I didn't receive a royalty check. Maybe it's because I demanded my rights back (and I did get them back). I also told PA to remove my book from all on-line bookstores. They still haven't done it. That should be fraud.

If I can't sue PA, I'm going to at least continue to blab my mouth to anyone who'll listen on how they've cheated me. I've already emailed Amazon and told them PA doesn't have any right to sell my book.

I hope others will join us in fighting PA!:D

[Mac H.]

I also told PA to remove my book from all on-line bookstores. They still haven't done it. That should be fraud.Afraid not. PA don't have control over all online bookstores.

PA can update their database, and be sure to tell anyone who asks them if your book is still available. But that won't stop people from having out-of-date information on their bookstores.

Wish you well, though.

Mac

[ByGrace]

Does anyone know what happened with the class action suit that Tim Steely was going to form?

Lynne,
Are you still working on this?

[CatSlave]

What about this attorney? Looks like he know PA inside-out. Maybe he could comment on the best way to deal with PA. Has he ever represented a plaintiff against them? Does he have a handle on Victor Cretella (PA's attorney)?

http://www.authorslawyer.com/l-publishers.shtml

[James D. Macdonald]

Does anyone know what happened with the class action suit that Tim Steely was going to form?

I'm told that PA authors don't form a "class" for the purposes of the law.

[DaveKuzminski]

But RICO might certainly apply.

[nomosolo]

I'm another one that could not get my royalties from PA.I signed the contract in 2003.I think in the year that followed I recieved about $5.00 and after that ,nothing.After constant complaining to them and I even sent them documentation of my book sales as per amazon.I filed a complaint with the Frederick,MD BBB and about a week later I recieved a certified letter advising me that they would no longer sell my books,were going to destroy the printing plates,any left over books and that I would not recieve any royalties from any left over sales.They claimed that there reason for this action was because my book had not had enough sales.But any idiot would surmise that it was retaliation for me trying to collect my royalties.So if anybody knows of a class action suit,please let me know as I would like to get my 2 cents worth in too.

nomosolo

[DaveKuzminski]

nomosolo, what you need to do is put together your documentation and then show it to a lawyer. Even if they terminated your contract, they don't have the right to withhold any royalties you were entitled to by that contract. In other words, certain provisions live on even after termination. Since they terminated the contract, you can very likely sue them in court. But talk to a lawyer first. If you can show any sales of your book after that termination by way of a receipt showing it was ordered and paid for, then you just might have a case. Heck, you might even have enough for a prosecutor to use to try them for fraud.

[James D. Macdonald]

Destroyed the printing plates? Hear them lie! These books are digitally printed. There aren't any printing plates and never were.

[nomosolo]

Thanks for the encouragement.I have checked with several lawyers here in Florida and they won't take the case on consignment and advise me that it would be quite costly to bring a suit from down here.They advised me to get a lawyer in Frederik,VA.Can you imagine the expense trying to carry on a law suit that far away at about $100.00 per hr. attorney expense.So,PA knows how hard it is to bring any legal action against them .I also complained to the states attorney in Frederick VA.They were of no help at all. They kept saying it is a civil problem.I think they were too damn stupid to understand what I was trying to explain to them.Unless someone initiates a class action suit,I'm afraid we might as well tuck our tails between our legs and go on home.
nomosolo

[James D. Macdonald]

Have you considered arbitration? That may be far less expensive.

[CatSlave]

Thanks for the encouragement.I have checked with several lawyers here in Florida and they won't take the case on consignment and advise me that it would be quite costly to bring a suit from down here.They advised me to get a lawyer in Frederik,VA.Can you imagine the expense trying to carry on a law suit that far away at about $100.00 per hr. attorney expense.So,PA knows how hard it is to bring any legal action against them .I also complained to the states attorney in Frederick VA.They were of no help at all. They kept saying it is a civil problem.I think they were too damn stupid to understand what I was trying to explain to them.Unless someone initiates a class action suit,I'm afraid we might as well tuck our tails between our legs and go on home.
nomosolo
PA is in Frederick, Maryland, not VA. Check out the threads here that discuss arbitration. Other people have taken them to arbitration and won.

[James D. Macdonald]

For that matter, if you can prove non-payment of royalties, you might consider small claims court in your home jurisdiction.

[Marie Pacha]

Llogan65 my name is; well my name is the same as my screen name here and I am also a PA author. I received my Arbitration case number last week, and although I live in Iowa I will be making the trek to Maryland to plead my case before the Arbitrator. Currently I am working on my witness list and getting the documents I intend to present in order.

I'm not an attorney and I cannot offer legal advice. I can only tell you the process I am going through, and share with you information I receive as I go. I also have some information that is probably applicable to any PA author, and I would be willing to share that with you.

You can send me an email from this site if you would like to talk further.

Marie

[Marie Pacha]

oops, if my post is no longer applicable (and it probably isn't) to Llogan's post I apologize. I didn't realize an older thread had been resumed.

Marie

[icerose]

My contract cancelled book is still selling...

So don't expect them to even remove it fully from the market.

[CatSlave]

My contract cancelled book is still selling...

So don't expect them to even remove it fully from the market.
Do you have receipts and documentation to back up this claim?
Can you obtain them?
ARBITRATION, my dear.

[DaveKuzminski]

Do you have receipts and documentation to back up this claim?
Can you obtain them?
ARBITRATION, my dear.

No, not arbitration! The contract's been canceled. Now it can go to COURT and we get to watch Willem, Larry, and Miranda, and any of their employees and former employees who happen to be called as witnesses do the witness seat squirm. At the conclusion, we might even get to see them do the perp shuffle. :)

Now's your chance. Stick it to them. They violated your copyright. Take them to court and get the maximum possible.

[Marie Pacha]

Arrange it for the right time and I can sit in on your court appearance while I am at my Arbitration hearing!

Oh but wait, if your contract is cancelled do you have to go through the Maryland court system? PA may have to come to you.

Marie

[ccomer]

Boy am I glad I got out when I did.

[icerose]

Contract is cancelled, I do have receipts, I just don't have the kind of money needed to file a for a lawsuit.

And ccomer, now you see why we are so passionately against them.

[DaveKuzminski]

Contract is cancelled, I do have receipts, I just don't have the kind of money needed to file a for a lawsuit.

And ccomer, now you see why we are so passionately against them.

You need to talk to a particular lawyer with experience in intellectual property. If you're interested, I'll give you his name and point you to him. I think the results of a discussion might turn out to be better than you expect.

Heck, we might even come up with some funding to get the process started if it's needed. :)

[ccomer]

The main reason why I left them was because of what I read on here. I want to thank you all for your help and input. I now am signing with a good publisher. And getting a better web page.



www.freewebs.com/ccomer

[CatSlave]

It may be a good move for all PA authors who have rescinded contracts to check if PA is still selling your books, both in the US and Great Britain. If so, buy them yourself and keep receipts for everything, packing slips, mailing packages, everything you can get your hands on, including all your saved PA correspondence (see Dave Kuzminski's posts here and on the other threads).
Then see a lawyer pronto.

[Marie Pacha]

There is only one contract that I know of with PA that has been rescinded. There is a difference between that and termination and because of that your options are also different. And that's why those of you who are still having your work sold while you are not under contract need to speak to an attorney like the one Dave recommends.

Some attorneys will do a free consultation, and some will work on a contingency fee.

Marie

[CatSlave]

There is only one contract that I know of with PA that has been rescinded. There is a difference between that and termination and because of that your options are also different. And that's why those of you who are still having your work sold while you are not under contract need to speak to an attorney like the one Dave recommends.

Some attorneys will do a free consultation, and some will work on a contingency fee.

Marie
I used the wrong terminology. I meant PA authors who had their contracts terminated. But you get my drift. :)

[Marie Pacha]

I do, but I think some people may believe that the terms are interchangeable and they aren't.

And you are correct; they needed paper copies to verify everything.