A note from the editor of Royal Love

The editor of Royal Love contacted me and asked me to put this statement up:

To everyone affected by Cristiana Serruya,

I would like to personally apologize for my role in this situation. I edited Royal Love, Book 1. If I had any knowledge this book was plagiarized in any way, shape, or form, I would have sent her packing.

I do not condone plagiarism. It’s as bad as pirating an author’s book in my opinion. As a fellow author, I would never engage in such unethical behavior.

When I was handed this book to edit, it was a mess. I was told that it needed a fast turn-around because the last editor had messed it up. It was one of my first paid editing gigs. I was excited. I edited 120,00 words in a twenty-hour period. It was a pain in the ass, but I did it. When I looked over Royal Love’s sample pages on Amazon, I noticed she didn’t keep most of my edits, but that’s her problem.

This book helped launch my editing career when I needed to take a break from writing. If I had known that it was going to turn into this, I would have never edited this manuscript.

I am so sorry that she stole work from all these amazing authors. She even stole work from a romance author I’ve admired since I started reading romance novels.

I am sorry I let her steal from you. I didn’t know, so I couldn’t stop her from doing this.
I promise to try harder.

~Deliaria Davis (@deliariadavis)

What to do about #CopyPasteCris

Hi everyone,

I thought the list of authors plagiarized by Cristiane Serruya would be larger than just me, but it’s sadly turned out to be pretty massive. It’s gotten a little unwieldy at this point. Kresley Cole, Gena Showalter, Michelle Pillows, Tessa Dare, Loretta Chase, Michelle St. James, Victoria Alexander, Bella Andre, Lynne Graham… And the sad thing is that I know I’m missing people who have been uncovered already, and that we haven’t started to understand the full extent of this yet.

In lieu of contacting people individually with instructions, here’s a massive blogpost for what I suggest authors plagiarized should do:

  1. File an ethics claim with RWA. The procedure for how to do this is here. A basic email saying “Member Cristiane Serruya copied portions of my book without permission or attribution. My book is ___. Her book is ___. Here are screenshots showing the word-for-word plagiarism in her work.” Sign this. Send it to RWA staff. (Those who are vigilant about reading RWA’s minutes will realize that I am–very unfortunately for the current matter–RWA’s Ethics committee chair. I informed the President as soon as I realized this was an issue, and have recused myself entirely, and RWA staff are setting up a separate forum to discuss this without my presence.)
  2. File takedown notifications with vendors.
    1. For Amazon, go to the book in question, scroll down to the end, and look for this link. Click, and report.Screen Shot 2019-02-19 at 1.57.53 PM
    2. For Apple, fill out this form.
    3. Barnes and Noble provides this specific procedure, which requires you to send them an email.
    4. More to come; if someone has the procedures easily to hand, please add them in comments, and thank you!
  3. I have sent an email to the RWA president asking them, upon review of the ethics complaints, to consider advocating with all vendors to disable Cristiane Serruya’s accounts in their entirety. This is required for repeat copyright offenders, and given the blatant plagiarism over quite a few books, her account should be disabled.
  4. We need to discuss taking further action. At this point, the people are too numerous for me to email individually, so I have started a Yahoo Group. If you want to join, visit https://groups.yahoo.com/copypastecris. I am limiting membership to this group to authors she has plagiarized (provide proof) and with very few exceptions to people I trust who have helped reveal the sources of her plagiarism. For obvious reasons, since we’ll be discussing strategy, we don’t want to broadcast our intentions to the internet.

Cristiane Serruya is a copyright infringer, a plagiarist, and an idiot.

If you know me, you know I do not make accusations lightly–especially accusations about plagiarism and copyright infringement. Earlier today, a fan sent me an email claiming that portions of my book that had been copied by another author. After investigation, I have concluded that Christiane Serruya has copied, word-for-word, multiple passages from my book The Duchess War.

There are more passages copied than what I list below, and history suggests that if you delve deeper into this book, and other books, there will be even more plagiarism. I have not listed all of the similarities because, quite frankly, it is stomach-churning to read what someone else has done to butcher a story that I wrote with my whole heart.

But the passages I will show you will be enough. They’re quite convincing.

The first five comparisons are lifted from the same 4 pages in my book, starting at Kindle Location 1885. They’re scattered throughout hers, but it’s all from the same scene in mine.

The Duchess War:

As always, she had not a single hair out of place. She dressed in what he supposed was the height of fashion, if he’d bothered to follow it. Her gown was a dark blue, the hems embroidered in a white-and-gold pattern two inches thick. Her waist was slim, but not too tightly laced; a shawl of black lace looped over her shoulders.

She had always seemed imposing, like some faraway castle tower looming on the horizon. Even when she’d visited him when he was a child, she had been distant.

Now, the two yards between them could have been a furlong. In the years since he’d gained his majority, they’d come to a comfortable accommodation. When they were both in town, they had dinner together—no more than once—and talked of nothing. Her charitable work, his work in Parliament. Everything they said at those meals, they might have found out about one another through the society pages. He had no expectations of her and she no longer disappointed him.

Royal Love, Kindle Location 3286:

As always, her hair was combed in a striking, fashionable stormy way around her face and she was dressed in what he supposed was the height of fashion—if he bothered to follow it. Her black leather suit emphasized her slim waist and fit body.

When he was a child, she had seemed imposing, like some faraway forbidden castle, looming over the horizon. When he came home for holidays, she had kept her distance and coldness. Every word they exchanged since Angus had been crowned king, had been polite, affable, and so unexceptionable. She might have read his school reports; he might have read about her in the tabloids. When he was a child, all he wanted was for her to notice him. Now, he had no more expectations of her. She could no longer disappoint him.

 

The Duchess War:

She had drawn herself up stiffly. Little blooms of pink touched her cheeks. No doubt she’d realized that once he married, she’d become the dowager Duchess of Clermont, and she was loath to give up her place in society to some chit who didn’t respect her as she wanted.

“No offense, Mama,” Robert drawled, “but I do not consider you an expert on marriage. Expertise, I think, would require you to actually stay in one.”

Her lips pinched together. “Insults.” She sniffed. “You become more like your father every day.

 

RL, Kindle Location 3315:

Little blooms of pink touched her cheeks and she drew herself up straighter.“It’ll be a disaster.”

A more honorable son would have taken mercy. But he’d long been without it where his mother was concerned. For all that the woman sitting before him was his mother, she was a stranger. “Well, it’s unfortunate for you then that she is already carrying.”

A shriek strangled itself in Catriona’s throat. “You become more like your father every day.

(Snarky aside: “A shriek strangled itself in Catriona’s throat”? No wonder you’re copying other authors, girl.)

The Duchess War:

Her nostrils flared; he almost thought she might stamp her foot and paw the ground, like an angry bull.

Royal Love, Kindle Location 5170:

Her nostrils flared; he almost thought she might stamp her foot and paw the ground, like the bull that had attacked Siobhan.

The Duchess War:

There was a reason they’d kept their conversations to inane niceties up until this point. There was no way to talk about anything else without bitterness. They had no common past to draw on, almost no shared acquaintances. His mother had spent more time visiting Sebastian’s mother—her husband’s sister—than she had lived in Robert’s household as a child.

And she’d chosen to do it. He might have forgiven her at one time. At one time, he would have forgiven her anything.

Royal Love, Kindle Location 5173:

There was a reason they’d kept their conversations to inane niceties up until this point. There was no way to talk about anything else without bitterness. They had no common past to draw on, almost no shared acquaintances. His mother had spent more time visiting her lovers and friends than she had stayed with him when, as a child, he came to spend the holidays in Lektenstaten. And she’d chosen to do it. He might have forgiven her at one time. At one time, he would have forgiven her anything.

The Duchess War:

Robert nearly sprang to his feet, his temper rising at that. But shouting had never got him anywhere. Slowly, he exhaled his anger, letting it flow from him until the serenity of ice returned.

“Ah,” he finally said. “Insults.”

Royal Love, Kindle Location 5185:

Angus nearly sprang to his feet, his temper rising at that. But shouting had never gotten him anywhere. Slowly, he exhaled his anger, letting it flow from him until the serenity of ice returned.

“Get out.”

Here are some things that are pretty blatantly outright copied:

The Duchess War, Kindle Location 3360

If you’re any good in bed, I might fall in love with you. If that is going to be anathema…”

“No,” he said swiftly. He looked away from her, and when he spoke again, there was a slight rasp to his words. “No. That would be perfectly…unobjectionable.”

From his words, she might have thought him uncaring. But that catch in his voice and the way he tilted his head toward her again, gave the lie to his indifference. He looked at her like a thirsty man gazing on an oasis, trying to decide if it were an illusion brought on by the heat.

It made a sudden, impossible sense of everything. He doesn’t want a loveless marriage. He’s just resigned himself to one.

Royal Love, Kindle Location 4062

She stared back, both fascinated and appalled. “And if I fall in love with you? Is it going to be anathema?”

“No,” he said swiftly, and looked away from her. There was a slight rasp to his words, when he faced her again. “No. That would be perfectly…unobjectionable.”

From his words, she might have thought him uncaring. But that catch in his voice and the way he tilted his head toward her again, gave the lie to his indifference. He looked at her like a thirsty man gazing on an oasis, trying to decide if it were an illusion brought on by the heat. It made a sudden, impossible sense of everything.

He doesn’t want a loveless marriage. He’s just resigned himself to one.

The Duchess War, Kindle Location p. 2321

Robert had always hoped for a family of his own—first imagining his father more caring than he was, then hoping that his mother would love him. When he’d realized how futile his daydreams were, his wants had shifted outward. It had started so subtly that he couldn’t pinpoint the moment.

He’d had daydreams in which he accompanied Oliver home during the summer holidays. He’d imagined spending entire days together, talking and playing and boxing and fishing and doing whatever it was that brothers did.

Mr. and Mrs. Marshall had to have been the most beautiful sight that he had seen. So utterly normal. They’d rushed forward, arms outstretched, and grabbed up Oliver. Who had scowled and made noises of complaint, the ungrateful wretch—noises like “Stop, Ma, not my hair,” and, “Don’t kiss me in front of the fellows!” All that fuss, just because they hadn’t seen him in a handful of months. Robert had watched from the other side of the room, a lump in his throat.

And then the moment had come. After the affectionate greetings had been given, Oliver had turned. “Mother,” he’d said, “Father, this is—”

Mr. Marshall’s voice was quiet, but it couldn’t soften the harshness of the blow. “You look like your father. Very like.” He paused. “So much like, I think, that when my wife saw you just now, she saw him.”

He had nodded in a haze of pain.

“Perhaps,” Mr. Marshall said gently, “this is not the best moment to perform introductions.”

“Yes,” he’d said. “Sir.”

And he’d understood that there would never be a moment for introductions. There would be no lazy family summers, no man-to-man talks, no gingerbread on plates for him.

Royal Love, Kindle Location 5206

Angus had always hoped for a family of his own—first imagining his father more caring than he was, then hoping his mother would love him.

When he’d realized how futile his daydreams were, his wants had shifted outward. It had started so subtly he couldn’t pinpoint the moment.

He’d had daydreams in whichLudwig was his brother, and he would accompany Ludwig home during the summer holidays. He’d imagined spending entire days together, talking and playing and boxing and fishing and doing whatever it was brothers did.

When Ludwig’s parents visited the school, and they did a lot, they’d rush forward, arms outstretched, and grab up Ludwig. And Angus would watch the ungrateful wretch scowl and complain, “Stop, Mama,” and, “Don’t kiss me in front of the fellows!”

All that fuss, just because they hadn’t seen him in a handful of weeks.

Angus could only stare dumbfounded from the other side of the room, a lump of sadness and jealousy in his throat, blocking him from asking to be taken with them for whatever they planned to do.

He understood there’d be no lazy family summers, no man-to-man talks, no special sweets for him.

Can I just talk about this for a second? Robert’s yearning for family–and specifically, to be a part of Oliver, his half brother’s, family–is a theme in The Duchess War that stretches across the entire series, up through the point in The Suffragette Scandal when Free ends up on his doorstep thinking that she’s imposing. It is something that meant a lot to me when writing it, and to have someone take this scene–the one where Robert feels he simply just doesn’t get to have anyone love him because of who his father was–and to have them rewrite it, while taking out the bones of what made the scene tick–it just makes me feel awful.

From The Duchess War, Kindle Location 3853

For one second, there wasn’t the slightest hint of amusement in his eyes. He looked so old, the tiny lines at the corner of his mouth gathering as his lips pinched together. And yet he also looked young—impossibly young, as if hissix-year-old self were still looking out from behind his eyes, watching his mother walk away.

“Maybe.” He looked away from her, and then looked back. That urbane amusement was back on his face now, but it looked lopsided on him—as if he were trying to wear a hat that didn’t quite fit.

He had to laugh at what had happened. If he didn’t laugh, he would cry. She couldn’t have understood it until just that moment—because at that moment, she knew that she had to laugh, too, or burst into tears on his behalf. He looked at her with such urgency that she could not bear to force the issue.

“Yes,” she said quietly, entwining her fingers with his. “I do see that, now. It is funny.”

Royal Love, Kindle Location 3239

“No?” For one second, there wasn’t the slightest hint of amusement in his eyes. He looked so old, the tiny lines at the corner of his mouth gathering as his lips pinched together. And yet he also looked young—impossibly young, as if his five-year-old self were still looking out from behind his eyes, watching his mother send him away.

He looked away from her, and then back. That urbane amusement was back on his face now, but it looked lopsided on him—as if he were trying to wear a hat that didn’t quite fit. “Maybe because you don’t know what freedom I had in the boarding school. The pranks I played.”

“Yes, sure. That might be it,” she agreed because she didn’t have the heart to say otherwise. It has to be a funny story to him.

A note on the set-up to this one: Royal Love mirrors The Duchess War in that, in both, hero is telling the heroine a story that he claims is funny but which is actually heartbreaking. A major difference is that the story in The Duchess War is actually a little funny, and a lot heartbreaking.

Okay, that’s all the comparison I can handle doing at this point.

Let me be frank: This sucks. It sucks that someone took my heart work for their own. I wrote the Duchess War in the midst of a massive depressive spell and I bled for every word that I put on the page. It was a hard book to write and it’s not yours to take. For someone to take that emotion and just…shove it into this nonsensical bullshit…it hurts.

It also sucks that this is going to take time I didn’t have away from everything that I’m doing.

But you know what? Cristiane Serruya has to be the biggest idiot out there. I’ve sold several hundred thousand copies of this book. I’ve given away several hundred thousand copies on top of that. Does she think that readers are never going to notice her blatant plagiarism?

And then there’s the fact that it’s me. Look, I’m not special in any other way and I don’t want to toot my own horn to much, but if I were an unethical plagiarist and I was looking to plagiarize a romance author, I would pick literally anyone except the one who clerked for the Supreme Court, taught intellectual property as a law professor, and doesn’t back down from a fight.

You follow me on Twitter, Cristiane. How stupid can you get?

 

So here’s the deal, Cristiane. This is what I expect:

  1. You will take down Royal Love immediately. Everywhere. I’ve looked through the book enough to know that you didn’t just copy my words, you copied scene structures and familial arrangements. I don’t think this book is salvageable. It contains too much of my own work for you to be able to claim it as your own. Take it down.
  2. You should make an accounting of exactly how much money you made on this book. It’s not yours, and you shouldn’t spend it.
  3. You’re going to write an apology. A real one. And you’re going to fess up to all your plagiarism–not just this. If you skip something, I guarantee people are going to find it. You post it to every social media that you have. You send it out in your newsletter. You put it on your Amazon page.
  4. In exchange for doing all of this, you get the satisfaction that you’re starting to do the right thing after a time period of great idiocy. Clear?

Here’s the deal, other authors:

We’re almost certainly going to find out that I’m not the only one she’s plagiarized. I’m not 100% certain exactly how to proceed, but I have this here copyright registration certificate in my hands, and it’s dated before her infringement.

If it turns out that you’re similarly situated, please let me know.

 

Speaking up against systemic racism in the publishing industry

Button proclaiming "HEA belongs to everyone" made by Alisha RaiHi everyone. A reminder: my posts are my own personal opinion, and not the views or policy of any other organization.

I know there’s been talk about recent events–some of it public, some of it private. I wanted to lay out how I see it. I recognize that there are other viewpoints. But I feel that some of the talk has centered on what is “nice,” and I think it’s important to step back and take a look at the broader issue here.

I’m not naming names, because–believe it or not–I don’t want this to be about the person who set off this firestorm, and I don’t want to hurt her. If I use her name, this post will show up in Google searches about her, and that might hurt her.

Here is how I see what happened:

  1. On January 15, 2016, a post went up on Kirkus Reviews blog. That post was about celebrating diversity. It also contained this extremely troubling claim: “I rarely get romances to review that are written by or include characters of color. So even when I actually buy a book, or a publisher sends me an author I really want to read, I usually don’t have time—reading that book takes me away from titles I get paid to read.” Let me translate if you’re not seeing what’s wrong with this: This says that Kirkus and NPR (the entities this author works for) by and large do not review books by diverse authors. The author of that post vowed to read more diverse romances in her spare time, but did not say anything about trying to change the conversation at her institutions.
  2. These are major review sources. Librarians and book sellers rely on these publications to decide who to purchase. Not being reviewed by these sources, ever, makes it materially difficult for an author to have a break out career in traditional publishing.
  3. This is an example of structural racism. Everyone may mean well, but if a publisher knows that a debut author isn’t going to get a Kirkus review, that publisher is less likely to buy that author–even if they care about diverse books, they also have to care about the bottom line. If a librarian wants to buy diverse romances for her collection, but they aren’t being reviewed, how does she find them? And so on and so on.
  4. However positive your personal interactions with the individual who wrote that post may be, that person has a history of interacting with–particularly–women of color and queer authors in a way that has been less positive. Not all queer authors or women of color. I don’t even know if it’s most of them. But it’s enough that there’s a pattern. This history is not based on the one post I list above. It is a years-long history. I don’t want to make this post about her. I’m not posting examples. I don’t actually want to hurt her personally, but I do want to address the structural racism, and I have to mention this history to contextualize what happened.
  5. I left a comment on this post, asking her a number of questions.
  6. The author wrote a response, posted as a second post on Kirkus’s blog. I’m not going to go into the myriad reasons why I felt this response was inflammatory and unresponsive. There’s only one that matters. One of the major structural barriers that creates a roadblock for diverse authors having careers–that they aren’t reviewed by major publications–was not addressed by the person who was best in a position to remedy that structural barrier–namely, the person who reviews for those major publications. A promise to read more on her personal time doesn’t remove that structural barrier.
  7. Numerous people (including yours truly) discussed that second post on Twitter. Years of frustration leaked out in those responses. Multiple people told stories about things that had been done to them by that person. These were not gossipy bar stories. These were people who were complaining about structural barriers to entry for underrepresented authors: that a key person who wrote key reviews and organized key romance events that could help unlock key markets to help romance authors break out was systematically excluding them.
  8. These people, these complaints, and me in particular, have been labeled by some as “mean-spirited” and “unprofessional,” and some people are circulating a counter-narrative that fails to mention the issues above.

That’s how I see the history.

Why do I personally speak out on this issue, and why is it important for me to continue to speak out?

Because of items 1, 2, and 3 on the list. Underrepresented people are systematically being excluded from benefits that are extended to white, straight authors. Kirkus Reviews published a piece admitting that, with only a tiny number of exceptions, they don’t review romances except those written by white authors.

Skip the reasons. Just look at that sentence. Kirkus Reviews published a piece admitting that, with only a tiny number of exceptions, they don’t review romances except those written by white authors.

This isn’t about who is nice and who is mean. It’s about a fundamental injustice that is being dealt, over and over, to people of color, to queer authors, to disabled authors, to religious minorities, to trans authors–authors who don’t want a leg up; they just want the same chances.

White, straight authors, I know you have all told yourself at some point, reading about past injustices, that you would do what was right. You’ve read about heroes and heroines who put themselves in great danger to change the world. You’ve told yourself that if you’d been in their shoes, you’d have been the one who stood up and helped instead of taking a backseat.

You don’t have to put yourself in personal danger today to stand against injustice. You just have to say that happily ever afters belong to everyone. To say that every author deserves a chance at a career. To stand up and shout that an author’s book should have a chance to be judged based on the quality of her writing, and not on the color of her skin.

Kirkus Reviews published a piece admitting that they don’t review romances except those written by white, straight authors.

Yes, I’m mad. As a career-focused romance author, I’m mad that some authors are being systematically denied the opportunity to have a career creating happy endings.

If you care about romance and the future of the romance genre, why aren’t you angry with me?

Comments are off.

Extremely large EC v. DA update, part IV of ??? #notchilled

Reminder: I make this post on behalf of myself, and not any other entity.

Recap: Over a year ago (god, really?) Ellora’s Cave sued Jane Litte and Dear Author, alleging that DA had defamed EC in a blogpost that detailed layoffs, failure to pay contract employees and authors, among other things. Lots of things have happened, like we moved to federal court, and then there was discovery (but maybe not all of it), and motions for summary judgment.

Here are the issues that are still pending:

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.
E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.
F. A bunch of stuff related to the discovery period.

This part of the update will start to talk about DA’s motion for summary judgment, but won’t really get into the substance. But before we get there, a not-so brief update on another pending matter.

Continue reading

Ginormous EC update, part 3/???: discovery issues abound! #notchilled

Since I just posted earlier tonight, a brief reminder that I speak on behalf of myself and not any other entity (yada yada) and that there’s a lot of stuff going on, so check out my last post for a recap.

I’m going to be discussing the following issues in this post:

D. The claim by DA against EC alleging abuse of process.
F. A requested clarification with the court regarding the length of the discovery period.

As you’ll see by the end, these issues are related.

To update you on where we are in D, Ellora’s Cave filed a motion for summary judgment on Dear Author’s counterclaim. Here is EC’s motion for summary judgment. There’s a declaration from Patty Marks that accompanies this, as well as a piece from Jane’s deposition.

“Summary judgment” is a term that means, “We can decide this case without a trial.” Basically, the point of a trial is to give the jury (or a judge) the chance to see the evidence, to hear the witnesses, and decide who is telling the truth. A chance to hear witnesses and weigh evidence is important where the facts are disputed, and the disputed facts would decide who wins the case.

But there are cases where the facts are not disputed–or where the facts that are disputed aren’t relevant to the disposition of a claim.

What it means for facts to be disputed requires a little more than a, “nuh uh, no we didn’t” response. You have to look at all the evidence that has been discovered.

You’ll notice, of course, that this makes it very hard to judge who will prevail on a summary judgment motion after hearing from just one side. That side of course is going to show all the evidence favorable to its side. Until you hear from the other side, the side that says “Look, but they didn’t tell you this,” you can’t really tell if they’ve made a good case for summary judgment or not.

And this is because a motion for summary judgment is not necessarily about who tells the most convincing argument about who will eventually win; it’s about demonstrating that there are undisputed facts which show you win (on the moving party’s side), or that there are disputed facts upon which the case will turn (on the non-moving party’s side).

That said, we come to EC’s motion for summary judgment on DA’s claim for abuse of process. As a reminder, a claim for abuse of process basically says that EC is perverting the justice system to achieve an end that is not allowed.

EC says that the record does not support a finding that it has perverted the justice system. And specifically, it points to a deposition by Jane in which EC’s lawyer asks her why she believes EC perverted the justice system, and she says, Because you filed the lawsuit to shut up cover artists, editors, and authors who were speaking.

I just want to point out that Jane was deposed in early March, and preliminary discovery just closed. Even though Jane is a lawyer, her stating that this was the evidence she had at the time is not considered to be binding on her. She is not the lawyer in this case, and a deposition is not a brief to the court. She also can hardly be expected to name all the evidence that her legal team will generate in her deposition.

That being said, EC is perfectly right. If the only evidence Jane had of abuse of process was that this case was filed, the judge would likely grant summary judgment to EC on this claim. I seriously doubt that Jane will not have more evidence to present then her deposition.

So, we’ll wait to see what the court has to say about this, and how DA responds, but this was…not really a stellar effort of a brief by EC. It did the job. Barely.

But if we want to talk about DA’s future response, items E and F on our EC-Watch board have now become entangled.

So this brings us to:

F. A requested clarification with the court regarding the length of the discovery period.

I covered the clarification regarding the length of the discovery period earlier. Basically, preliminary discovery closed on July 15; DA asked the court to clarify that this was just preliminary discovery, and not anything else; EC said, “No way, that was it, we’re done!”

DA responded to this, basically saying, “Uh, guys, that was just preliminary discovery, and we all knew discovery would be open longer.” They said it a little more eloquently, but I’ve summed up.

EC responded to that, saying, “No, you’re the liar.” Specifically, EC claims: “those ideas were never adopted by the Court or made part of the Court’s Case Management Plan.”

In support of this, EC includes an email from Randazza that specifically states that Randazza believes the discovery plan “did not provide for our idea,” which does not look good for Randazza.  Unfortunately, only page 1 of this thread is included, and it’s hard for me to tell from that what precisely is meant by “our idea.” EC also includes an email from Randazza looking to schedule depositions of Tina Engler and Patty Marks. Since I didn’t attend any of these conferences, I have no idea what to think, but that does look like an admission by Randazza that at least some part of the plan (what part?) was not going to be something they did. But there we are.

In response to this back-and-forth bickering (note that we had a request, a reply to the request, a response to the reply, and now a reply to the response), DA today filed a motion, essentially escalating the “request for clarification” to a “come on, now, quit this bullshit.”

The summary of the motion is this: DA believed that discovery during this period was limited. “Defendants repeatedly attempted to schedule the depositions of Patricia Marks and Tina Engler, but Plaintiffs refused to schedule such depositions.” DA did not file a motion to compel them to be deposed with the court, because they thought we still had time.

Second, DA says, “Defendants are still waiting for responses from Plaintiffs to written discovery requests served on June 10, 2015.” If true, this one is pretty jaw-dropping for me. Not that EC hasn’t complied with written discovery–this is something that those who knew about the Brashears case obviously expected. But it takes a solid dose of chutzpah to not deliver documents requested, to file a motion for summary judgment saying that DA doesn’t have any evidence, and then to say, “ha ha, discovery is closed, we don’t have to give you anything.” If that is what happened, that is absolutely acting in bad faith.

I’m very curious what Ellora’s Cave will have to say about the claim that they haven’t responded to written discovery requests, and for their sake, I hope that they have a reasonable explanation.

Accompanying this motion is a copy of the defendant’s request for production of documents. None of this stuff is a surprise (“Send us your balance sheets.”) (“Send us everything you’ve ever said about royalty payments to authors, whether internally or externally.”) (“Send us everything you’ve ever said about the lawsuit.”)

(Particularly in the last category, some of TE’s posts to the business loop that I’ve heard about from small to mid-sized birds are troubling–telling them that they could not speak about anything at all, except to their therapist or priest. Since this is not supported by the language of the authors’ contracts, posts to that effect would help build a picture suggesting that the aim in filing the lawsuit was to intimidate authors from speaking out.)

There is also a declaration from Marc Randazza supporting the claims in this motion, a file of emails regarding deposition of the plaintiffs–I want to point out that Randazza says that “Plaintiffs did not assent to these scheduling efforts,” in his declaration, but the attached emails do not show active non-assent. The emails demonstrate that he is attempting to depose them, but does not show their response, if any. I do not feel like we are getting a complete picture of what has happened here.

Finally, Randazza mentions that RWA recently issued a notice regarding EC, which would require further discovery, and that there is a Huffington Post article that states that Tina Engler indeed purchased a home in West Hollywood, which defendants only discovered on September 5.

Bottom line? DA asks the court to make clear that discovery is still open, and (here is how this is connected to the summary judgment motion) to toll DA’s response to EC’s motion until EC complies with discovery.

I’m really curious to see what EC is going to say.

What’s left: I still have to talk about DA’s motion for summary judgment. I’m going to try and tackle that this weekend, because there’s a lot to discuss.

In the meantime, NOBODY FILE ANYTHING PLZ MUST CATCH UP.

 

 

Big honking EC update, part 2 of ??? #notchilled

Disclosure: I make this post on behalf of myself and definitely not anyone else, etc. etc. and so forth.

Apology: I thought that somehow spacing this stuff out would be a good idea that would let me catch up eventually, but things are happening fast and furious right now, and so if I don’t actually time to catch up for the next few nights, I’m just going to fall further behind. I am behind on LOTS of things, not just this. Eek.

Brief overview:

Much stuff has ensued since this litigation began lo these many months ago, but right now, here are the issues pending in this case:

Ellora’s Cave sued Dear Author, claiming that a blog post was defamatory. Dear Author counterclaimed for abuse of process. Author Ann Jacobs proposed to intervene as a permissive counterclaimant.

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.
E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.
F. A requested clarification with the court regarding the length of the discovery period.

I am going to try and knock off as much as I can here, issue by issue, until I am caught up or this lawsuit is decided, whichever comes first. So let’s start with…

E. New happenings on AJ’s motion to intervene.

To remind you where we are with this: AJ moved to intervene as a permissive counterclaimant, stating that EC breached their contract with her and that they consequently owe her A Lot of Money, and also, she wants her rights back, thank you Bob.

I have covered the initial motion and EC’s response. Since yours truly last posted, Dear Author has posted a brief in support of the motion to intervene, and AJ has posted a reply to EC’s response.

Since these are both responsive briefs to Ellora’s Cave’s response, I want to briefly remind you of what Ellora’s Cave said:

  • There isn’t enough commonality of law and fact
  • This motion is not timely
  • The EC contract is subject to an arbitration clause and so should not be litigated in court

I provide this for context in terms of the responsive briefs, and I’ll talk about what each of the briefs say on this point one by one.

Common Issues of Law and Fact

Ann Jacobs, by contrast, explains that the central question in her case is, “Did you pay the authors their damned money?” which is, unsurprisingly, the same question in the DA v. EC case. Honestly, on this one, I don’t think EC has a leg to stand on. OF COURSE there is a common question of law and fact here.

(Incidentally, there is this interesting procedural footnote, which I toss out as a “huh, okay.”

Screen Shot 2015-09-15 at 6.07.12 PMEeenteresting. Particularly eeenteresting in light of the filings in issue F today, but I’ll get to those when I get to them, which might even be today! Who knows! Pigs have flown before! Just put that under your hat for now.)

Randazza and Nye (Jacobs’ lawyer) both do a pretty clear job of beating this horse. It’s okay, guys; I’m pretty sure it’s dead already.

There is one point made in Nye’s brief that I want to give a little more space to:

There is also potentially significant economy for the court system not only in avoiding two trials over the same issues, but in potentially avoiding two types of collateral litigation. First, if the cases are tried separately and Ellora’s Cave prevails in the first action to be tried (whichever case that may be), then Ellora’s Cave will all but certainly attempt to give its favorable judgment preclusive effect in the second case to be tried, thus throwing the remaining parties into a quagmire of claim preclusion or issue preclusion litigation that would be avoided if the cases were tried together.

Let me explain what this means, because “preclusion” is a legal term of art. “Preclusion” means that an issue has already been tried (or should have been tried) by the court, and it is not going to be retried. So, for instance, if person A sues person B for slander, and person B prevails, person A cannot then sue person B for slander for those same words. That’s what is called “claim preclusion”: you already made that same damn claim, you don’t get to make it again.

As a general rule, claim preclusion only applies to the original parties to the lawsuit, or those very closely related. Ann Jacobs is not closely related to either Jane or Dear Author, and so I’m a little foggy as to how claim preclusion would apply here.

“Issue preclusion” can be a little more tricky. An example of a place where issue preclusion can be huge is in bankruptcy court. If the bankruptcy trustee hears from (it thinks) all the creditors and divvies up the assets  and then you step forward and say, “Wait, what about me, you never heard from me!” the answer is, sorry bucko, you had your chance, you didn’t step forward, you’re DONE. That issue has already been settled, and the fact that you didn’t say anything is irrelevant.

Issue preclusion, however, in non-bankruptcy contexts (there’s a huge statutory framework underlying bankruptcy) is more generous. If person A sues their bank saying that they mishandle transactions, and person B (unrelated to person A) sues their bank saying that they mishandle transactions, it’s perfectly possible that person A could win and person B could lose, even if they present identical factual situations, and that the result in case 1 would not have an impact on case 2.

I seriously doubt that either case would actually have a preclusive impact on the other.

So here’s how I translate what Nye is saying: “This issue may be bogus, but EC will absolutely try to use it either way, and create more vexatious motion practice, so let’s try and combine the two cases for efficiency’s sake, and by ‘efficiency,’ I mean ‘avoiding stupid motions that waste money.'”

While I empathize with that, I am not sure the court will accept the argument that we should lump all the EC cases together and stick the court with them forever and ever just because EC might file stupid motions.

Timeliness

AJ raises several points on timeliness.

First, discovery is not yet finished. (More about this later).

Second, some of the conduct raised in the counterclaim had not occurred until fairly recently (e.g. one month ago), and so AJ was not dilatory in filing this motion.

Arbitration

Finally, as to the arbitration clause, AJ says this:

The fact that there is an arbitration clause in the publishing agreements does not weigh against allowing intervention, because the scope of arbitration is quite limited. The publishing agreement in Exhibit 1 to the intervening counterclaim . . . provides generally for arbitration, and then states, “Notwithstanding the foregoing, the parties shall have the right to conduct discovery and the right to seek injunctive relief in any court in the State of Ohio.”

And that, folks, is why the counterclaim is structured as it is: seeking injunctive relief and a declaratory judgment first. I note that claim 3 of the counterclaim is a pure claim for money damages and breach of contract, which would fall under the (very) limited scope of the arbitration clause, and Nye kind of doesn’t really say anything about that.

My takeaway? I still think it’s likely the court will bounce this, but again, I don’t know for sure. And if the court does bounce it, I suspect we’ll see it get refiled in some form, and we’ll be able to have our popcorn and eat it, too.

I’m going to try and publish another post covering both the motion for summary judgment on the counterclaim and the discovery issues, hopefully soon, hopefully tonight, because there’s some interesting stuff that just got filed in that today. But for now, I need to walk the dog and have dinner.

A big, messy EC v. DA update, part 1 of lots #notchilled

The usual disclosure: I make this post on behalf of myself, and not on behalf of any other entity, etc. etc.

My apologies for falling behind in the reporting here; it’s been a busy week for me as well as for the case. In the interest of getting caught up, I need to break up everything that has happened into semi-meal-sized pieces and try to spread it out over the weekend.

The obligatory recap

Jane at Dear Author published a blog post, called “The Curious Case of Ellora’s Cave,” which detailed instances of nonpayment to authors, tax liens against the publisher, and so forth. Shortly thereafter, Ellora’s Cave sued Jane. After some initial rattling of sabers, the parties settled down to conduct discovery and we had many months in which very little was publicly posted.

That changed, and how. In this last week or so, the following have happened. Note that I will once again start labeling separate threads with letters–something that I did back in the initial saber-rattling period–to help keep track of what is going on. I will continue to use these letters in the future to designate these different threads, because once again, these threads are (relatively) independent.

Up until this last week, here were the current active threads in the litigation:

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.

We now must add:

E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation. 
F. A requested clarification with the court regarding the length of the discovery period.

We have had action on all four of these threads in the last week, but I haven’t had time to say much about any of these.

In this post, I’m going to deal with issues E and F, since I can knock them off fairly easily. A and D are going to take a little more time because we’ve had motions for summary judgment in them. I also want to take a little time to specifically talk about Jane’s deposition.

Here’s what’s new in E and F.

E. AJ’s motion to intervene as a permissive counterclaimant.

I covered the proposed motion to intervene when it was filed about a week and half ago here. Ellora’s Cave has filed its expected objection; you can read it here. It’s actually one of the better legal briefs that I’ve seen from Ellora’s Cave.

To sum up: they think the motion is not timely (one of the requirements), and I’ve already said I agree. They say that there isn’t a common kernel of fact and law (I’ve already said I disagree–there are clear commonalities of fact, enough to satisfy the standards, but EC has to make the argument, and they do). They say a few other things, but I think the only argument they make that I haven’t yet touched on is this: “[T]he existence of an arbitration provision in the contract militates against intervention. The arbitration provision provides as follows:…” EC then proceeds to cite not the complete arbitration clause, which is interesting because the complete arbitration clause lists exceptions, and one of the exceptions is seeking an injunction, which is one of the things Jacobs is doing.

But, yeah, arbitration: not a good friend of class action litigation. You have it there.

I already spent a while last time muttering about how, if I were a judge, I’d want nothing to do with this, and that is still where I’d lay my odds today.

F. The request regarding discovery.

I have not mentioned this tiny little thread at all. On August 31st, Jane/Dear Author filed a request with the judge asking him to clarify whether discovery was still open. Specifically, the defense stated:

At the status conference on August 24, 2015 counsel did not clarify with the Court that limited preliminary discovery was not a tactical decision on the part of the defense but rather a plan set at the case management conference. Given that plan was allowed by the Court on January 26, 2015, and acknowledged in the Case Management Conference Order (Doc. 29) by the notation of a preliminary discovery cutoff date of July 15, 2015; the parties require clarification that discovery is still open after the July 15, 2015 preliminary date.

As such, Defendants respectfully request this court allow discovery to continue up to and including January 15, 2016.

The question was asked on Twitter: Why was this being filed? And more specifically, someone said, I hope Courtney explains.

Alas, Courtney is not made of magic. She is not even made of psychic energy. She has only the public filings to go on, same as you, and sometimes I understand a document’s purpose differently, but if I’m not privy to what’s going on behind the scenes (and I am not in this case), I don’t know any thing more than you. So I wasn’t sure why this was being filed. There were a number of reasons I could guess at.

  • The court’s order left it unclear, and this really was just something that was being put out there for the sake of clarity.
  • The defendants wanted to remind the judge that the discovery date mentioned by the proposed intervenor was, not, in fact, an official closing, even though that might be what the calendar said.
  • The plaintiffs were being recalcitrant about scheduling further discovery and this was a prod.

Since I don’t know what happens behind the scenes any more than any of you do (really–despite what someone says about this case being tried by the defendants in social media, Jane doesn’t talk to me about it at all), I had no way of knowing whether this was an idle clarification or designed to address something in particular.

In any event, even if there was no overt recalcitrance regarding scheduling up until now, plaintiffs decided that this was a very convenient boat to jump aboard, and did so. Yesterday, they filed a document with the court that stated as follows:

The Plaintiffs are not seeking clarification of the court’s order as the order is sufficiently clear. Nor are the Plaintiffs seeking to reopen discovery for the purposes of allowing the identification and deposition of new witnesses. The appropriate time for that type of discovery was prior to July 15, 2015, prior to the filing and preparation of summary judgment motions. Defendants had the same opportunity as Plaintiffs to depose witnesses for trial or to support their dispositive motion, but having failed to make use of that opportunity in a timely fashion, now seek an extension of discovery.

My response to that is distinctly raspberry-colored. Plaintiffs joined in filing the report of the parties planning meeting, which states:

Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.

We all understood from the court documents that this meant that Jane would be deposed first, summary judgment motions would follow, and then, if they were not granted, EC witnesses would be deposed. And this makes sense, because deposing witnesses is hugely expensive, and if Jane can get away with not having to spend upwards of $30,000 deposing EC employees and principals, she will.

If I picked this up from a few paragraphs in the court documents, I can’t imagine that EC and its lawyers didn’t understand it when they were standing in the room.

Updates on other sections to be continued…

Ann Jacobs (kinda sorta) sues Ellora’s Cave #notchilled

General disclaimer: I am writing this in my individual capacity, and not on behalf of any other party. Thank you!

People have been asking me if I am still covering the EC case. The answer is yes, except there has been nothing to cover except status reports, and I’m unmotivated to cover status reports.

That just changed. Today, an EC filing landed in my inbox. I looked at the title–Motion to Intervene–vaguely thought that this was going to be the motion to attach Jaid Black/Tina Engler as an indispensable party to the litigation, something that was mentioned earlier in the course of litigation (although that wouldn’t have been labeled a motion to intervene, so why I thought that I don’t know), figured it would take 15 minutes to go through, and went about my merry way.

I opened the file while I was making dinner and whoa baby. TL;DR: Ann Jacobs has asked to intervene in this case as a third party, claiming a nexus of fact with the underlying issues, on the grounds that EC has breached contracts with her, covering 40 books, in multiple ways.

Here is the motion to intervene. Here is the counterclaim.

A much longer explanation follows after the jump.

Continue reading

Motion to Quash & Gag Orders #notchilled

Disclaimer: I make this post on behalf of myself, and not any other entity.

Brief recap of where we are in the litigation: As you may recall, Ellora’s Cave sued Jane Litte, claiming that Jane had defamed the company. Jane removed the case to federal court, and Ellora’s Cave, after a little dithering, tossed their motion for a temporary restraining order, leaving us with the long slog of discovery (the phase where each side gets evidence to support their case from various sources) and various dispositive motions ahead of us.

Right now, the court has pending before it a motion regarding discovery–specifically, a motion to quash a subpoena that was served on the @pubnt account on Twitter.

Yesterday, the DA team filed an opposition to this motion. Here are the pieces: the subpoena served on Twitter, a selection of @pubnt’s tweets, and the actual opposition.

There is really nothing exciting in here. In fact, it’s relatively anticlimactic. The opposition to quash wasn’t written by Randazza, and it shows–it’s sloppy and badly written. But the actual opposition does what an opposition to a motion does–namely, it cites the relevant law and applies it. The relevant law is Federal Rule of Civil Procedure 45(d)(3), which says:

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

The first few paragraphs of the opposition are all that matters. The defendants state:

“@pubnt incorrectly assert that Defendants’ issued the Subpoena to Twitter, Inc. (the “Subpoena”) to harass, defame and punish the persons known as @pubnt. In reality, Defendants’ seek the identities of @pubnt to pursue the discovery of admissible evidence.”

And then they go on to explain that admissible evidence includes evidence that makes the plaintiffs’ case (yes, this is true! It’s not perverse! It’s the way litigation works!), and also, that the identity of @pubnt is of specific interest because if @pubnt is acting at the behest of the plaintiffs, it would certainly bolster defendant’s counterclaim.

Almost done.

Then the opposition states: “@pubnt fail to reference a reason under Fed.R.Civ.P. 45 (d)(3) for which the Court could quash a subpoena.”

This seems to be an unfair reading of @pubnt’s motion to quash. No, @pubnt didn’t cite the relevant law, but “Jane Litte is a vicious troll, and if my identity is made known to her through a subpoena, she and her gang of violent gangbangers will put me in fear of my life for exercising my constitutional right to free speech” sounds like an undue burden to me. There’s no question that @pubnt has argued that it will be subjected to an undue burden. There’s no factual basis for that argument, but it has, in fact, made that completely unsupportable argument.

More puzzling still is the selection of tweets the defense chose to present from @pubnt, all from February 13th and 14th, none of which predate the subpoena (!!!), and which miss @pubnt’s most delightful assertions of insider knowledge. It’s like whoever grabbed this randomly printed the first few pages of tweets and didn’t bother scrolling past that. The opposition doesn’t even reference or quote any particular tweet claiming insider knowledge. Like I said, it’s sloppy.

That being said, the point being made–that @pubnt has claimed to have discoverable information–doesn’t depend on even a minorly capable scan of the account in question, particularly since @pubnt admitting to having discoverable information in its motion to the court.

But the opposition doesn’t at all respond directly to the assertion that @pubnt is in danger, except as quoted above, which was to say, “We want to know this information because it’s legally relevant, not because we want to chop up @pubnt and devour it.”

I don’t think that a lot needed to be said about that assertion. It’s like @pubnt said, “Jane Litte eats twitter accounts for breakfast.” It’s such a bizarre and baffling assertion that (a) literally nobody has ever said that Jane Litte does not eat twitter accounts for breakfast, for the same reason that nobody has said that Jane Litte is not a space alien with an armada of bee-drones, and (b) it’s flatly unbelievable and wildly paranoid.

But I always believe in making the court’s job easier, especially when the court’s job is to figure out how to make sense of several pages of complaints. A single sentence to the effect that @pubnt’s fears are so outlandish that they are not even supported by the ravings of the anonymous gossip blog that it cites would have been useful.

In any event, we will see if @pubnt uses the opportunity to reply. Or maybe even get a lawyer. (Have I mentioned that @pubnt should have a lawyer? Yes, it would be nice to have someone who knew the relevant law! Especially since the remedy @pubnt probably wants is not the one @pubnt is asking for, but whatever, who needs lawyers, amirite?)

But this all basically changes nothing: we still have a wildly unsourced letter to the court from @pubnt, and a response from the defendants that basically amounts to “LOL wut?”

The other thing that happened is this article about Ellora’s Cave. This morning, twitter was asking: Why don’t Tina Engler’s statements here violate the gag order? Why isn’t anyone doing anything about it?

Reminder: the gag order in question was entered in state court when the parties agreed to delay the hearing on the Temporary Restraining Order. The substance of that order is this:

In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.

Joint Motion for Continuance.

“The interim” referred to above is the time between the filing of the joint motion for continuance and the scheduled hearing on the temporary restraining order. The gag order, then, was firmly tied to the outcome of the TRO hearing. And this makes sense: The point of a TRO is to maintain the status quo, and so until a TRO hearing can be had regarding defamation, it would make sense to have an order in place making sure that the TRO hearing isn’t completely defeated.

The literal date given for that hearing, and the end of the gag order, was October 27th, 2014. Plaintiffs informed defendants that they were dropping the TRO in late October. I suspect that a mid-November conversation isn’t a problem on simple date grounds: at that point, it was clear to all parties that the TRO was not going to be pursued.

Further, speaking to a reporter is not in violation of the gag order, which refers only to “post[ing] on the Internet” and “not comment[ing] online, directly or indirectly” — even if speaking to a reporter who posts a story is indirect commentary, speaking to a reporter who doesn’t post a story until after the TRO has officially been denied and the gag order explicitly expires is not a problem, either.

It’s also not clear to me from the article that Tina Engler actually did comment on the case. She said she did not know the identity of @pubnt, but that is not a comment specifically or directly related to the factual allegations forming the basis of the defamation complaint. And while the article refers to “Ellora’s Cave’s perspective,” it does not directly quote Engler, something that the author of the story does not hesitate to do.

Instead, everything the article says about EC’s perspective could have been gleaned from EC’s filings to the court. It’s quite possible that Engler said, “I’ll talk about Amazon and @pubnt, but if you want to know what EC’s perspective is on the substance of the pending litigation, you can read our briefs to the court, which I’ll send you.”

So in short, I don’t think there’s anything to see here.

Finally, for those who are saying, “Why doesn’t anything happen in response to the violation of the gag order?” the answer in addition to all of the above is because the court doesn’t have Google alerts set. The court is not an enforcer. If a party wants the court to enforce a gag order, it has to ask to do so. Nobody has asked, therefore nothing has happened.