I wasn't optimistic that I would ever be writing a post like this, after the class action filed last year against PublishAmerica was dismissed.
However, on January 31, 2013, the Maryland law firm Z Law and the New York law firm Giskan Solotaroff Anderson & Stewart (the same firm that is currently investigating Author Solutions Inc.) filed an amended complaint (the original complaint was filed last November) against Willem Meiners, Larry Clopper, and PublishAmerica LLLC on behalf of Diana Waterman, Jennifer Grant, Danita Clemons, and the class of PA authors in similar situations.
The amended complaint was filed in the Circuit Court of Maryland for Frederick County (case number 10-C-12-003498 OT), and can be read in full here. The electronic case record can be viewed here.
Plaintiffs allege breach of contract, unjust enrichment, fraud, violations of the California Business and Professions Code (for untrue advertising), violations of the California Unfair Competition Law (for unlawful business acts and practices, unfair business acts and practices, and fraudulent business acts and practices), and deceptive acts and practices under New York General Business Law.
The allegations of fraud, unjust enrichment, and breach of contract are similar to those of the earlier complaint, but where the previous complaint sought judgment under the Maryland Consumer Protection Act--and was dismissed in large part because it failed to adequately demonstrate that PA authors should be treated as consumers under the Act--this complaint focuses on laws governing business acts and practices, both in Maryland and in the home states of the named plaintiffs. Does it have a better chance of success? That remains to be seen.
The complaint's Preliminary Statement is worth quoting in (nearly) full.
2. Defendant markets itself as a “traditional advance and royalty paying book publisher” that is home to over 50,000 authors.I've highlighted the allegations that were unfamiliar to me. Although they fit perfectly with the many other aspects of PublishAmerica's business model that Writer Beware has received complaints about over the years, I still find them shocking. The complaint includes many other gems, including a couple of PA's famous "tone" letters and examples of PA's solicitations for bogus marketing services.
3. As PublishAmerica openly states on its website, it specializes in books and authors “who face and overcome hardships and obstacles in life.”
4. Defendants shamelessly prey on ambitious first time authors and those who have faced significant personal hardships, luring them into exploitatively long contracts, often as long as ten years -- that can only be broken for a high fee.
5. On its website, PublishAmerica uses the tagline: “We treat our authors the old-
fashioned way–we pay them.” Nothing could be further from the truth. PublishAmerica makes money from its authors, not for them. As alleged below, authors published by PublishAmerica have no chance of selling their books to a general audience.
6. PublishAmerica makes its authors’ books unsellable in a number of ways. The most obvious is pricing. Plaintiff Waterman’s paperback children’s book is priced at $24.95. By contrast, Curious George, a beloved children’s book, is available online at Houghton Mifflin Harcourt for $6.99. In fact, Plaintiff Waterman’s book is priced significantly higher than all of New York Times’ ten best-selling children’s books. See Exhibit 1 attached hereto.
7. PublishAmerica sabotages its authors’ ability to sell and market their books by printing them with errors. These errors are inserted by PublishAmerica itself. Plaintiff Grant’s book has glaring typographical errors. On the side binding of the book, the word “collection” is misspelled as “collectrion.” If that were not enough, on every other page, the title of the book is misspelled, replacing “romantically” with “roimantically.” These errors humiliated Grant once the book became widely searchable on the Internet. Notwithstanding these glaring errors, PublishAmerica prices Plaintiff Grant’s book at $30. This price is notably higher than the top ten selling fiction paperback books. See Exhibit 2 attached hereto.
8. The simple fact is that the only consumers who will purchase these overpriced, poorly published books are the authors themselves.
9. PublishAmerica then bombards its authors with services ostensibly designed to promote, improve, and sell books that PublishAmerica knows cannot be sold. But as alleged below, these services are often themselves a scam or simply fictitious. For example, PublishAmerica offers to correct its own publishing errors – for a fee.
Plaintiffs are asking the court to approve the class, to order PA to release and return publication rights, to order PA to pay actual damages, restitution, and court costs including attorneys' fees, and to order "such other, further relief as may be determined to be just, equitable and proper by this Court, including but not limited to punitive damages."
The contact person for Giskan Solotaroff:
O. Iliana Konidaris
11 Broadway, Suite 2150
New York, NY 10004
Fax: (646) 964-9610
I'll keep y'all posted as this works its way through the courts.