Monday, March 11, 2013

Another Class Action Suit Launched Against PublishAmerica

Posted by Victoria Strauss for Writer Beware


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.

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.
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.
 
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
Direct: 646-366-5140
Fax: (646) 964-9610

I'll keep y'all posted as this works its way through the courts.

34 comments:

BuffySquirrel said...

The allegation that PA sabotage the books by deliberately introducing errors boggles my mind. Do they really stand to gain from that? I just don't have the scammer's mindset needed to parse why they would do such a thing....

petemorin said...

Buffy, so they could charge the author to fix them!

My favorite is when they do their promotional "deals," offering the authors their own books for 50% off (thus making the book price only slightly higher than you can get elsewhere), then charge an arm and a leg for "shipping," which wipes out the savings on the "deal."

BuffySquirrel said...

I suppose that does explain it. Producing sub-standard books on purpose just makes my head hurt!

Jim Hartley said...

My "favorite" from RubbishAmerica was the constant barrage of offers "buy 14 books at X% discount and we'll send two review copies to Oprah (or Steven King or whoever)." Of course you just know that Oprah is going to grab those review copies and read them right away!

I finally paid them $150 extortion money to get out of the contract, and sold the book to my regular e-book publisher. I must admit, though, I never noticed the deliberate errors some are complaining about ... just the outrageously high price!

Don Davidson said...

I signed with PA in 2007, when they didn't charge for editing. But they added at least 35 errors to my manuscript, which I found when I proofread what they sent back to me. Fortunately, back then they would fix their own mistakes for free.

Anonymous said...

Former Employee
Yes Oprah studios just sent the books back, boxes and boxes. Not sure about the other people but no PA never did what they advertised, they did word their promotions in such a way they didn't really have to do a thing, and I will be calling the lawyers tomorrow and let them know that if I as a former employee can be of any assistance I will be available.

Brooks said...

I am not seeing any allegations in the complaint that PA deliberately introduces errors into customers books. As Don Davidson's anecdotal data implies, it could well be explained by simple lack of care.

As for how they arise -- even when electronic manuscripts are available, it is quite common to retype the manuscripts for various reasons (such as "we don't want to have to think about how to convert the author's files to work in our weird system"), and doing that cheaply leads to poor results.

Of course, the lawyers are no doubt avoiding making allegations of intent (which are difficult to prove) in favor of making allegations of results that can easily be demonstrated.

Victoria Strauss said...

Brooks, from page 8 of the complaint:

37. Upon information and belief, PublishAmerica intentionally inserts errors into its authors’ final manuscripts immediately before publication for the purpose of selling editing services after the book has been published.

Anonymous said...

I apologize in advance for the anonymous post, but I am about to become a party to the suit - you never know who is lurking on these blogs. PA is known to peruse the blogs to see who is saying what.

The deliberate introduction of errors is true, as I saw in the last book that I published with them. I was about to file my own suit when I was contacted by the plaintiff's attorney and was more than willing to put my name in the hat.

Just to let all interested people know that I will be sending the attorney my affidavit along with receipts for their 'services'. I would appreciate and thank you in advance for good thoughts and vibes for the attorneys and the named plaintiffs as well as a positive outcome.

Victoria Strauss said...

Anonymous--I understand why you don't want to use your name. If you'd check back every now and then to keep us posted, I'd appreciate it. Also feel free to contact me directly, in complete confidence: beware [at] sfwa.org. Thanks for your comment.

Sally said...

Jim Hartley, you got off easy. Cost me $299 to get out of contract with book one, and it is still listed on their site 6 months later.

Sally said...

So, Buffy, what do you suggest we former PA authors do to recoup lost monies from PA?

Sharon Fummerton said...

Thank you MUCHLY for researching this and blogging about it for those of us new to writing and self-publishing.

Because we are so new to the whole realm of writing and publishing, having someone with your experience to point out the mine fields is a generous gift.

Alan's said...

I don't recall where I read this, but some SF writers got together and wrote the worst, most unpublishable book they could, with every narrative and otherwise mistake. PA praised it!

Juniper Shea said...
This comment has been removed by the author.
pczick said...

I'm finally done with PA after they published two of my books. I never noticed the errors, but I certainly endured the pricing practice ($19.99 for a paperback - come on). When I wanted to get books for signings and talks, I ended up selling at a lower price because of my conscience which meant after paying a discounted price and a horribly exorbitant shipping price (ranged from $2.99-$6.99 depending on the deal, I only made a dollar or two for selling my soul at a book signing. I hope their practices are brought to light because they do prey on new authors who somehow think it's wonderful a "traditional" publisher has "chosen" them. Terrible business. I'm happy to say I'm out of both contracts. I republished one book with a new cover and new ISBN and will probably do the second on at some point. Thanks for post.

Jim Macdonald said...

Re Alan's 3/12/2013 9:45 PM :

You're thinking of Atlanta Nights. PA didn't "praise" it (beyond the boilerplate in their standard acceptance letter), but they certainly did offer a contract.

Monica said...

Hi, I was recently published by PA in September 2012 and if I would have known about this or how they treat their authors I would not have signed the contract! I paid for my book to be put in bookstores shortly after it was released and have yet to see it in one. Also I know I sold copies online at Amazon and Barnes and noble but when they sent my royalty statements they say I haven't sold any copies. I truly feel they are frauds, and they feed on innocent people's dreams, giving them hope and wishes that they will be a big best seller but in reality, they won't. I'm just sorry I like many others fell into their lies.

Cu's e-Book Give Aways said...

That's not all they do... They printed a crap ton of his book and then charged HIM for every book that didn't sell...So when his SEVEN YEAR contact was up they tried to make him pay them thousands of dollars in unsold books.. And now they're refusing to give him the printing plates for his book unless he pays for those too

Victoria Strauss said...

Whose book, Cu? This complaint doesn't sound like any of the many I've received/seen online about PA. Also, PA doesn't do print runs, and they don't have printing plates--they use POD (a digital process) to print books as ordered (sometimes. One of the frequent complaints about PA is ordered books that never arrive).

Anonymous said...

:'( I am one of those young ambitious first time authors. I also had grammatical errors inputted. I have spent everything on promotions just to get nothing back every email saying what they have done for me and haven't. PLEASE tell me how I can file too. roseemery_green08@yahoo.com

Anonymous said...

As an Author of a book PA supposedly published I excitedly signed a contract with them and in 2 years have not seen a royalty statement. The number that was so easily accessed before signing the contract is no longer in service and the only number I have been able to actually speak to a human being turned out to be someone trying to sell me my own book. They continue to flood my mailbox with offers and anyone who has purchased an offer can concur there is never any proof that the offer is ever completed. I also placed an order for books for a book signing and the signing had come and gone long before I received the misrepresented order. They also have these specials for writer’s book purchases in which they charge more to shipping and handling than they do for the books. This is a company that not only rips off authors, but the company also feels very comfortable doing so. When the American public can so openly be robbed it makes you question the American justice system. I do believe our Country is the best in the world, but when this kind of con can be carried out openly it just makes you wonder? Please, please, please support this suit. Publish America should be shut down

Anonymous said...

Am going to use anonymous myself. Just left a message for the attorney to add my name to this case. I have found only 1 error in the book that I did not put in there, but over the past 6 mos have had 4 different friends order my book and PA says I have had no sales since the second year of my being "published". Funny how they can write me excerpts from a book few have ever heard of or read... Not only that, but I contacted PA asking them what rights they retain of my book and in 10 minutes they give me a list. I ask for a copy of the contract and they can't locate it because it has been archived? They want to charge me $50 for a copy... Ha! I have 2 years left on the contract... I am not giving them a dime. Luckily I only paid for the initial services and never once paid for a copy of my own book.

Anonymous said...

I also fell for their gimmicks. Get you books published in Europe 104 dollars - will be refunded if the contract does go through. Obviously it did not go through, but I received no refund. Finally I awoke when I knew friends who purchased my books but they said no royality that my bookkeeping was in shambles. Total crooks. Now the want big dollars to return my book rights. Please close them out. Will no sign my name for obvious reasons.

PAULA said...

Hi This is Paula Commerford----I am out from under PA and have been at war with them for over two years now. I am helping with the new law suit.PA is very mad at me because I have exposed a lot of there promo frauds. Now in the last five months they have hacked into my computer five times---totally blacked out. When my computer was down I used my hubby's and it was put down also. I now have a new system that they have not been able to hack into--so now they are sending me comments from my website with bogus email addresess. The comments are full of typo's some are them trying every way to get me to go to other sites changing things stating they are having a hard time getting my website to load- They want to stop me and I won't be stopped. paula

Anonymous said...

I would also love to get in on this lawsuit! I have been writing to get out of under PA since I got my book and seen it was nothing like they said it would be! Full of errors and not edited like they said they would!

I just got a email from them and they told me not to send in false nonsense about them and that would be there last warning! I asked nicely why my book was not coming up and if I could get out early and if not when and how should I send in my I do not wish to renew letter! This publisher is horrible!

Anonymous said...

Hi I am Thomas E. Kelly, Yes I am the author of this book and Sonnets for Caitlin and The Fox and The Young Rooster that is published by PublishAmerica who has stole all three of my books to date I have not gotten one red cent from them. I had to even buy "Sonnets For friends and Lovers" for my daughter so that she would have all her daddy's books when she gets older. The poems are great and inspiring buy the book, just wanted to let people know PublishAmerica rips off all it's authors, we do the work and they steal it. If you want a good western go Buy "When The Storm God Rides" we are making a movie of it in 2014.
All The Best,
Thomas E. Kelly

Unknown said...

British Bobby.
I am aged seventy six and I waited for my seven years with pa to finish then asked for my book files to be returned to me the author.Pa asked for payment to return my files and refused without payment.I wanted one book to finish a series but the refused,infact never answered my emails.What a load of Scum you are PA.I just lost faith in human nature.You should be closed down now since you are a big con.Please authors and writers do not send anything to Publishamerica in Baltimore they are a rip off.

Monica said...

I sent them an email earlier today questioning them about the royalties I didn't receive from sales made online at amazon, barnes&noble and books a million, they told me "to check my facts because they did nothing wrong and there is no record of any purchases of my book." They are a complete sham, frauds. I asked to break my contract and they threatened me by stating," the other person who made similar false claims had to pay them $53,000 and that their checks are confiscated as payment for their lies. So I better watch out for telling false things"
I wondering if its worth trying to get my rights back and if so how can I? Please reply with any advice thanks.

Anonymous said...

This is how they respond to my email asking where my two free copies are after I paid $89.00 to have it available in hardcover! I will make sure everyone knows about how they treat their Authors!

Publish America!

This is the second time you have made up false nonsense and sent it to us. Stop it.
READ CAREFULLY:I also have witnesses

No, you do not.
And, if you did, it wouldn't matter.

I have forwarded the conversation to the BBB!

No, you did not.
But, if you did, it does not matter. We will do nothing, at all.

No hurry.
No change.
No problem.

If you send us such nonsense again, we will delete it without reading it.

PublishAmerica Support
http://publishamerica.com/support/

>On Mon Jul 29 12:21:02 2013,

Anonymous said...

PA is good for threatening people, but who are they? IF people continue to allow them to threaten them and do nothing how will any justice be delivered? There is no where in your contract by the way that you have to pay to exit the contract. They are getting people's money.

Anonymous said...

All of these negative comments ring true to me as well. I have never received royalties. I know people who bought my book. I eas told they never sold any. I nevet received any response to emails or phone calls for five years. This week they returned an email similar to the above but nastier. I also contacted the above lawyers. If I undetstand cotrectly you have until early Dec. 2013 to do so. I urge anyone reading this to contact the lae firm. Also RUBBISH America fits them perfectly. I also had errors after so called editing. What a scam. You know the saying, when something sounds too good to be true it usually isn.t. That is the case here. The nasty emails are not even signed and I am also told they will delete any complaints from me. What they do to people is wrong and they may get away with it on an earthky level but Karma always catches up with you. You do also get what you pay for but some of us put out a decent amount for trash.

Anonymous said...

Publish America has denied selling my book sent me nast emails after ignoring my emails questioning them about the treatment I was receiving. It wasnt until I told them they were not being professional that they responded, and unprofessionally. They also took a mocking my dog is bigger than your dog tone. I was told to prove my book sales by confirmation number or customer receipt. I was told all my stayement are false. They like that word. The emails are unsigned as well. I contacted the above lawyers. If I understand correctly it does not cost us anything to break the contract. Publish America wants you to feel threatened and intimidated, like any bully. Do not allow that to happen. Call the lawyers. I believe we have until Dec. 2013 to add our names to it.

WT said...

They stole my book too because every book they sold of mine they never gave me a penny. Can't wait until I can get in a class action suite against those thieves/PA