Ellora's Cave Publishing, Inc.

First, I got word today that Susan Edwards, the COO, is no longer with Ellora's Cave.

http://deirdre.net/elloras-cave-no-coo-selling-reverted-books-lawsuit-update/

Captcha said:

Do we know/have theories about the interest in etawitten at gmail?

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I assume it's related to the person who sent harassing emails to Jane Litte's workplace, emphasis added, and Jane's real surname replaced with her pseudonym:

On 7 October, an email was sent to at least one of Ms. Litte's supervisors. On 14 October that same email was forwarded to the entire department within which Ms. Litte works. This is consistent with prior actions by directors of Ellora’s Cave. Ellora’s Cave has also engaged in acts to try and intimidate witnesses in this case. Therefore, sending this subpoena on short notice was of great importance. Since the Defense addressed this with Plaintiff’s counsel, these actions have waned.

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In other words, after these emails happened, Randazza (DA's attorney) spoke with EC's attorney, and these events either ceased or happened less frequently.

Captcha said:

Are we assuming it's about the Twitter egg account? What would the legal implications be if that Twitter account actually were traceable to someone at EC?

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1. I'm not assuming that.
2. If it's not the person who sent the emails, none. If so, harassing another party to a lawsuit (or harassing a witness) is Very Bad. Sanctions all the way up to a criminal case, depending.

In terms of the "if EC goes bankrupt all their contracts will be sold to god-knows-who" panic...

Is this accurate? My contract seems to give me my rights back if they go bankrupt (as long as I request it within 60 days of the filing).

Does that not match what other people's contracts say? Or am I misreading somehow? (I don't seem to be able to cut and paste the clause, but it seems pretty straightforward...)

Captcha said:

In terms of the "if EC goes bankrupt all their contracts will be sold to god-knows-who" panic...

Is this accurate? My contract seems to give me my rights back if they go bankrupt (as long as I request it within 60 days of the filing).

Does that not match what other people's contracts say? Or am I misreading somehow? (I don't seem to be able to cut and paste the clause, but it seems pretty straightforward...)

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My understanding is that the clauses in our contracts on that point are basically unenforceable. Contracts are assets of a company, and if they are forced into bankruptcy, assets are sold off to try and meet debts.

Someone at some point was talking about how reversals as old as a year may not actually be valid, and could be revoked by the court, but I have no idea if that's true.

EvolvingK said:

My understanding is that the clauses in our contracts on that point are basically unenforceable. Contracts are assets of a company, and if they are forced into bankruptcy, assets are sold off to try and meet debts.

Someone at some point was talking about how reversals as old as a year may not actually be valid, and could be revoked by the court, but I have no idea if that's true.

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It doesn't really make sense to me that the terms of the contract could be voided - I mean, the contracts are assets of the company, sure, but they're only valuable according to what they say. If they say people can get out in case of bankruptcy... I don't know. It seems weird that all the rest of the contract would be enforceable and transferable except for that one clause that would help the authors...

That's correct. I was in touch with quite a number of authors embroiled in the Triskelion meltdown. No matter what your contract says about reversion in case of bankruptcy, the bankruptcy courts basically ignore that language and treat author rights as "assets" to be dealt with however they see fit to pay the bankrupt's (non-author) creditors.

EvolvingK said:

My understanding is that the clauses in our contracts on that point are basically unenforceable. Contracts are assets of a company, and if they are forced into bankruptcy, assets are sold off to try and meet debts.

Someone at some point was talking about how reversals as old as a year may not actually be valid, and could be revoked by the court, but I have no idea if that's true.

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There is an excellent post on DA about this.

Basically, the minute EC files paperwork, the contracts are assets and the court takes possession of them for dispersal. If my rights aren't returned by EC prior to that, buh-bye books. I could get lucky and end up somewhere great, but as things stand, even though I requested before the DA article, I'm just planning on those books being history.

Here's the DA post on bankruptcy clauses. I agree with Voirey Linger--it's excellent.

http://dearauthor.com/features/letters-of-opinion/authors-rights-when-a-publisher-files-bankruptcy/

Deb Kinnard said:

That's correct. I was in touch with quite a number of authors embroiled in the Triskelion meltdown. No matter what your contract says about reversion in case of bankruptcy, the bankruptcy courts basically ignore that language and treat author rights as "assets" to be dealt with however they see fit to pay the bankrupt's (non-author) creditors.

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That's because those BK provisions in contracts are, per a retired BK lawyer who posts over on The Passive Voice, void as a matter of law and public policy.

I agree with the DA post, but it leaves off one important right/obligation of the Trustee--the right to "unwind" transactions. One bit I see frequently is the belief by authors that so long as the publisher gives back the rights BEFORE they file for bankruptcy, it's all good and the author can walk away.

Sorry, but no.

In most cases, if there are not enough assets to pay creditors, the Trustee has the duty to the creditors to dig into the past to reverse any asset sales or transfers for a period of time (usually 90 days, but I've seen cases where the Trustee unwound sales as far back as a year before filing when fraud is suspected.) A lot of that came about because debtors would shuffle assets to family members for little or no money, who would then hold the assets until the debtor was discharged and then give it back.

This is important in publisher/author situations because oftentimes, a small publisher will get an attack of remorse and offer back the books to the authors before they go belly up. Authors in that situation should hang on until after the discharge before trying to place it with a new house, or the author could wind up with major legal problems with the new publisher, who was assured they had the right to publish.

Just my .02 on an ugly and sad situation.

Cathy C said:

I agree with the DA post, but it leaves off one important right/obligation of the Trustee--the right to "unwind" transactions. One bit I see frequently is the belief by authors that so long as the publisher gives back the rights BEFORE they file for bankruptcy, it's all good and the author can walk away.

Sorry, but no.

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Agreed. And even though Victoria Strauss thinks it's abusive (and I agree with her), this may be one case where paying for that rights reversion may be a good thing -- if the price is later deemed fair. After all, they'll have to unwind both sides of the transaction.

That said, I think EC's put their foot down on more reversions, at least I've heard as much. So I'm not sure it'll be an issue.

Cathy C said:

In most cases, if there are not enough assets to pay creditors, the Trustee has the duty to the creditors to dig into the past to reverse any asset sales or transfers for a period of time (usually 90 days, but I've seen cases where the Trustee unwound sales as far back as a year before filing when fraud is suspected.)

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And this is why I'm glad that I'm not counting on getting my books back. I've decided it's simpler on my sanity to chalk them up as gone and move on. If they come home, hallelujah, but I refuse to lose any sleep over them.

This, however, would seriously suck for the authors who are coughing up the cash to buy the contracts back.

http://absolutewrite.com//www.pinterest.com/pin/create/extension/

VoireyLinger said:

And this is why I'm glad that I'm not counting on getting my books back. I've decided it's simpler on my sanity to chalk them up as gone and move on. If they come home, hallelujah, but I refuse to lose any sleep over them.

This, however, would seriously suck for the authors who are coughing up the cash to buy the contracts back.

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Yup. If I see one red cent for the three stories that I owe EC in total (two sent, one due at the end of the year), then I shall count the whole thing as a win. And even if I don't, well, have I ever learned a hell of a lot this year?

EvolvingK said:

Yup. If I see one red cent for the three stories that I owe EC in total (two sent, one due at the end of the year), then I shall count the whole thing as a win. And even if I don't, well, have I ever learned a hell of a lot this year?

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Do you have a time frame that you have to give them the third book? Mine has no time frame in the contract. Is it necessary that you send them the third book, at least until you have an opportunity to see what is happening with EC?

S.C. Wynne said:

Do you have a time frame that you have to give them the third book? Mine has no time frame in the contract. Is it necessary that you send them the third book, at least until you have an opportunity to see what is happening with EC?

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It is due on 12/31. Although that's not in the contract, my editor has it somewhere, and the people who've looked at my contract say that EC could absolutely make an attempt to lay claim on any genre piece that I write because of the phrasing.

As much as it frustrates me, I'd rather fling 7000 words at them and call it a day.

Deirdre said:

Agreed. And even though Victoria Strauss thinks it's abusive (and I agree with her), this may be one case where paying for that rights reversion may be a good thing -- if the price is later deemed fair.

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In general, I'm seriously opposed to paying for rights reversion (mostly because this is so often abused). But I think a case could be made for doing so in some circumstances--as long as the fee reflected reasonable real-life calculations. In a situation like this, though, that's exactly the problem--given everything else that's happened, you can't be sure that the price is fair.

I can see why distraught and exhausted EC authors might come to see paying as their best option. But they just don't have any way of knowing whether or not they're being rooked.

- Victoria

Courtney Milan has an interesting post about Dear Author's and Jane Litte's answers to the EC lawsuit.

http://www.courtneymilan.com/rambli...nterclaims-now-with-100-more-dork-notchilled/

Ellora's Cave seems to have brought a new managing editor and publishing production coordinator.

The managing editor's bio is on the website.

Maybe now we'll see something on the EC Facebook page other than random shots of the cavemen.

Is there any update on the lawsuit or the next court date?

EvolvingK said:

Ellora's Cave seems to have brought a new managing editor and publishing production coordinator.

The managing editor's bio is on the website.

Maybe now we'll see something on the EC Facebook page other than random shots of the cavemen.

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And the loyal followers talking about how great every photo looks, instead of talking about, you know, the books the company publishes. (Reminder to companies: If you are publishing books, it would help to talk about the books now and then...)

Alexandra Little said:

Is there any update on the lawsuit or the next court date?

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Courtney Milan was tweeting about documents about an hour ago; I don't know if she's putting together a blog post or not, because it seemed like a lot of "stuff isn't decided but we should hear about this soon."

Also, I received interesting information that my TBD contracts with EC seem to not...actually exist in any meaningful way. I'd encourage other writers who had sort of vaguely contracted books to check into this.

In theory I owe them one. But since there is zero time frame on it and I don't have a story for them anyway I'm not hugely concerned. I know the email I just received from them the other day said I no longer would send stuff to my editor.

Would anyone even notice if people weren't fulfilling contracts with them? Ya gotta wonder.

You do have to wonder. But to keep yourself safe, you must honour your legal obligations or find good legal reasons for not doing so. Take advice, please.

No. Of course I will fulfill my obligation to them. But I'm simply saying the way things are going over there I wonder if they would notice if anyone is or isn't doing that.

Alexandra Little said:

Is there any update on the lawsuit or the next court date?

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There's a case management conference scheduled for the end of January.

We're still waiting for the word on the remand motion, which is due around the end of the year but will probably occur sooner.

I keep the docket copy up to date (except I was out of the country for early November and had no Dropbox access then):

https://dl.dropboxusercontent.com/u/11698292/ecda/index.html

Deirdre, you're a saint for organizing this.