Wednesday, April 30, 2014

Class Action Lawsuit Against Author Solutions Inc.: Update

Posted by Victoria Strauss for Writer Beware

As I'm sure most readers of this blog know, self-publishing services provider Author Solutions Inc., along with its parent, Penguin Group, is currently the subject of a class action lawsuit, filed in May 2013 by the law firm Giskan Solotaroff Anderson & Stewart LLP.

Allegations include breach of contract, unjust enrichment, and violation of state statutes in California, New York, and Colorado.

In June 2013, ASI and Penguin filed for dismissal, labeling authors' complaints "a series of gripes" that would be better served by filing individual suits, and urging the court to toss all but the breach of contract claims against ASI, and to remove Penguin from the lawsuit entirely.

Legal maneuvering over the dismissal filings ensued over the following months (plaintiffs' Second Amended Complaint can be seen here), even as discovery proceeded on the contract claims.

Now Judge Denise Cote (the same Judge Cote who is in charge of the Apple ebook antitrust actions) has handed down a ruling that's good news for Penguin, but mostly a defeat for ASI. (The full ruling can be seen here.)

All claims against Penguin are dismissed.
Penguin is dismissed as a defendant in this action. The activities at issue here were undertaken by Author Solutions, a subsidiary of Penguin. Plaintiffs concede that they are not attempting to pierce the corporate veil in order to hold Penguin liable for Author Solutions’ actions. Accordingly, under basic corporate law principles, Penguin cannot be held liable for the alleged misconduct of Author Solutions.
ASI's motion to dismiss plaintiffs' unjust enrichment claims is granted in part and denied in part:
Plaintiffs allege two distinct forms of unjust enrichment by defendants. First, defendants unjustly profited by failing to pay royalties at the rate set forth in the contractual arrangement. Second, in failing to provide services that members of the class purchased without entering into a contract, defendants were unjustly enriched in the amount of the revenue received for those services.

Plaintiffs’ unjust enrichment claim as to unpaid royalties is dismissed. The royalty rate is governed by written contracts, which plaintiffs seek to enforce in their breach-of-contract claim. Accordingly, these royalties cannot be recovered under an unjust enrichment theory.

Plaintiffs’ unjust enrichment claim as to the non-contractual publishing services, however, is adequately pled. Unlike the claim regarding unpaid royalties, plaintiffs allege that there was no written contract setting forth the nature of the services for which they are seeking damages in their unjust enrichment claim.
ASI's motions to dismiss plaintiffs' claims of violation of various state statutes against deceptive acts and practices are denied. (Interestingly, in her discussion of ASI's alleged violation of New York General Business Law, Judge Cote cites New York State's 1999 lawsuit against fraudulent editing service Edit Ink.)

The surviving claims will now proceed to discovery, and the parties have submitted a proposed pre-trial schedule.

#sfwapro

Friday, April 18, 2014

Take the Money and Run: Kerry Jacobson, "Book Publicist"

Posted by Victoria Strauss for Writer Beware

Starting in the summer of last year, self-published authors whose books made it onto Amazon's Movers and Shakers list began to receive solicitations from a publicist named Kerry Jacobson (here's an example).

Jacobson, who claimed more than eight years of experience boosting authors onto bestseller lists, promised a marketing push that would vault the authors' books onto the New York Times and USA Today lists, or propel them into Amazon's top ten. He also promised guidance and mentoring to help them make the most of the opportunity.

Jacobson's fees were enormous--a retainer of $2,500, $4,500, even $6,500--with, in some cases, a $10,000 "bonus" due after authors made the lists. Authors who tried to research him to verify his background and claims of success found little beyond a few social media profiles--and, somewhat worryingly, a number of defunct businesses.* But he was dynamic and persuasive--especially on the phone--and, in support of his services, offered a strong testimonial from one author who really had made the NYT list.** He also provided a money-back guarantee.

Many authors looked at Jacobson's fees and said "no thanks." But others bit. They signed contracts, sent funds, provided requested publicity materials, and waited for the promised mentoring and guidance to begin.

And waited.

Authors discovered that, after the initial setup, getting in touch with Jacobson was like pulling teeth. Basically, except for sending invoices, he never contacted them unless they contacted him first. To their questions and concerns, he offered excuses--he'd been sick, he'd been crazy busy--or promises that everything was good on his end. He also pushed back agreed-upon marketing dates--sometimes repeatedly--with vague but important-sounding explanations like "several big titles are being released that week, and I don't want your campaign to suffer from the sales competition."

As their designated campaign dates approached, authors began to be seriously concerned. But, as is often the case in such situations, they hung on to hope--plus, having already invested thousands of dollars, many felt that they had no choice but to stick. So they promoted the marketing push to readers and fans, paid for advertising, and prepared to lower their books' prices to 99 cents as demanded in Jacobson's contracts. When their launch weeks arrived, they held their breath and waited for their sales ranks to rise.

And waited.

Some authors told me that they did see a sales boost, which they attributed entirely to their own promotional efforts. But others' sales ranks barely budged--and either way, they got nothing even close to the mega-sales that Jacobson had led them to expect. As for Jacobson himself, he was MIA--no sign of any action at all on his end. Authors who contacted him to demand what the hell was going on got the same vague answers and promises as before: big sales would come "tomorrow." It was taking a while for the numbers to build. He was focusing on the end of the push week rather than the start, because that was the way to get sales to rise organically.

It was all B.S., of course. And when angry authors attempted to hold Jacobson to his money-back guarantee--either after their failed promos or after watching their friends crash and burn--I'm sure you can guess what happened.

The mess went public in early March of this year, when one furious author posted a webpage (since removed) about her experience. She sent me a link, I put out a call for contact, and a number of other Jacobson victims responded. They paid a variety of fees and were promised a variety of results, but otherwise their experiences are remarkably similar.

Jacobson seems to have gone to ground. He's removed his Twitter profile and I've had no word of any author solicitations past February. But his AuthorBub website (which promises promotion to a claimed 2.4 million email list for the low, low price of $2,800), is still online--and people who get started in the author-fleecing business have a tendency to come back for more. So I wouldn't be surprised if he reappears at some point.

* Jacobson is or has been the officer or the registered agent for a number of other Florida-based businesses, including Venture Direct Worldwide, Generation Health, Tank Top Media, KnowSomebody.com, Ovid Consulting, Collaborative Push, Mile High Swap, Pernax, and Invitation Only.

** I've corresponded with the author, who told me that Jacobson was not responsible for her book's appearance on the NYT list, and that her testimonial was presented out of context.

Jacobson also claimed to have been the "project manager" for the marketing campaign for Jordan S. Rubin's The Maker's Diet, which he said spent 47 weeks on the New York Times bestseller list. The book and its bestseller status are real (although not necessarily its science; the same year the book was published, Rubin's company, Garden of Life Inc., was ordered by the FDA to stop making unsubstantiated claims about some of its products and supplements). A "Kerry Jacobson" is mentioned in the "thank yous" in the front matter of The Maker's Diet, but I could find nothing to verify Jacobson's specific claims.

Tuesday, April 15, 2014

Another Small Press Horror Story: Silver Publishing is Gone

Posted by Victoria Strauss for Writer Beware

Another small press disaster came to an ugly conclusion last week.

In mid-2012, I began getting complaints about Silver Publishing, which started up in 2009 as a self-publishing facilitator, but in 2010 transformed itself into a "traditional royalty-paying press" (I put that in quotes because, these days, it means so little).

Reported problems included poor editing, delayed and missing royalty statements/payments, royalty reductions due to claimed "overpayments," arbitrary changes in royalty payment schedules, and lack of communication--or, alternatively, rude responses to authors' questions and concerns. (See the Silver Publishing thread at Absolute Write for examples.)

All signs of a publisher in, if not terminal disarray, at least trouble.

Silver's owner, South African-born Lodewyk M. Deysel, made an appearance at Absolute Write in August 2012 to aggressively deny negative reports. By November of that same year, however, he was admitting in company email that there was "a deficit when it comes to paying our royalties"--in part, apparently, because he'd spent royalty income on business and other expenses. His solution: putting authors on a "partial payment plan" or giving them the option to terminate their contracts--contingent, in at least certain cases, on payment of a fee. Other authors, fed up, took matters into their own hands and hired lawyers to negotiate the return of rights or to compel payment.

Silver limped on through 2013, despite a lack of improvement on the financial front and mounting author dissatisfaction. Then, in March of 2014, Deysel abruptly announced that Silver's "South African division" would be closing* and its "US division" had been sold. The purchaser? A company called Empire Entertainment, LLC, a Wyoming corporation registered less than a year previously. According to an email sent to Silver authors by the alleged new owners, Empire was "new to the publishing industry and excited about the future of the company."

Is this starting to sound familiar?

Not surprisingly, authors were suspicious. Why, they wondered, did Empire Entertainment have no website and zero web presence? Why was it registered with Wyoming Corporate Services, a company specializing in the establishment of shelf corporations, that was the subject of a damaging Reuters expose? Who would pay good money, anyway, for a publisher in so much financial trouble?

Well, we all know what happens when authors start asking inconvenient questions. On April 8, Deysel announced that the (probably entirely bogus) sale had fallen through "due to the unrest among the author base which represents Silver Publishing LLC's value." Uh huh. Deysel claimed to be consulting with Silver's attorney to figure out what came next.

Apparently, "what came next" was absconding to South Africa. Just a few days later, Silver author A.J. Llewellyn broke the news: Deysel was gone. With him went any hope of payment for Silver authors (though at least it appears that rights reversion letters are going out). A notice on Silver's website indicates that it will go offline permanently on May 1; it's being left up only so that people who bought books can still download them.

A.J.'s lengthy blog post unpacks the whole sordid story of Deysel and Silver, including illegal entry into the USA, spending sprees with authors' money, secret deals to pay some authors but not others, altered royalty reports, and more. I can't corroborate most of the information cited--unlike the recent debacle with Entranced Publishing, and unfolding problems at another press I'll be blogging about shortly, I've heard from only a handful of Silver authors, and no former staff members--but given what I do know, the allegations seem plausible. A.J. has posted a followup that references Deysel's alleged prior legal troubles in South Africa. A group of Silver authors plans to pursue Deysel in hopes of bringing him to justice.** I hope they succeed.

So what's the takeaway here?

Silver was in business long past the "wait a year" precaution for small press publishers. Looking at it from the outside, authors could reasonably have assumed it was stable. Also, complaints didn't really start surfacing until well into 2012, nearly two years after Silver started up--so at least at first, authors trying to research the company wouldn't have found anything (and once complaints did start surfacing, authors trying to go public not only received pressure from the publisher, but were apparently pilloried by their fellow Silver authors, so there were probably fewer complaints to be found than there might otherwise have been).

However, for approximately half of Silver's existence, multiple reports of problems existed online; and if you'd contacted Writer Beware, we would have given you a warning. So for at least part of the time, the information was there to be found. Yet authors kept signing up.

Any publisher can go bad. You can't always predict which ones. And if a bad publisher is diligent about quashing complaints, or has a firm base of loyalists, it may not be easy to find out about even substantial problems. But that doesn't change the vital importance of thoroughly researching any publisher you're thinking of using--and just as important,  researching it BEFORE submitting, rather than waiting until later. Don't trust your ability to say no to a contract once it has been offered. I've heard from too many authors who delayed due diligence, and, in the flush of acceptance, closed their eyes to warning signs.

* Was there ever really a South African division? The company was originally registered in South Africa, and Deysel claimed that it was based there--something that, as he was no doubt aware, made legal action for his primarily US-based authors difficult--and that he was based there as well. According to A.J. Lewellyn, however, Deysel was living in the USA from 2006 on--and from 2011 on, Silver was registered in Michigan and Delaware.

** Will Deysel, like so many bad publishers, start up again under a different name? He may already have been contemplating doing so back in 2013, when Gia Press (its website is gone, but its domain registration remains; note the name server) popped up on people's radar.

#sfwapro

Friday, April 11, 2014

How to Succeed in Authorship Without Really Trying

Posted by Victoria Strauss for Writer Beware

Got the yen to write a book, but lack that essential creative spark? Looking to ride the coattails of the Kindle self-publishing craze, but don't want to bother with all that pesky scribbling? Want an author to create a story for you, but don't know where to find one?

Fret no more. The Internet's got you covered.

Here, for instance, would-be but inspiration-challenged authors can "Cash In on the Kindle Fiction Publishing Craze" by purchasing a "MASSIVE SET OF PRE-WRITTEN FICTION PLOTS."

That's right! A diligent ghostwriter and her crack writing team are offering "THIRTY-SIX plots in one huge package!" For only $27! Romance, erotica, science fiction, fantasy...it's all here, ready to use. Just add a touch of butt-in-chair, bolstered by this helpful advice:
So, how do you actually USE these plots?

First of all, do NOT publish them as-is! Even though some of the plots are almost short stories by themselves, they are not meant to be published in their current form.

Instead, you will use the plots as a guideline and change up different parts to make your own unique story. No two people will write these plots just alike. Change the character names and descriptions. Change the setting. Change the time period, careers of the characters and any number of other plot points.
Don't want to go to even that much effort? Buy Now Books will sell you an entire completed book, ready to upload to KDP or another self-publishing platform of your choice. No research required! No creativity necessary! No writing at all!! Just content, ready to use. You get plenty of extras, too:
In your book package you get the following files:

a. Microsoft Word Source Documents for Print & Digital.
b. EPUB, MOBI and Web PDF versions for your Digital Book.
c. Print PDF for Large Print & Trade Paperback Books.
d. Book Detail File including all Metadata need to publish your book.
e. 5 300 DPI Images that are used inside your book.
f. Cover Art: An eBook Cover, Large Print and Trade Paperback Cover & Audio Book Cover.(includes PSD files for editing)
g. 7,500 Words of Unique Content inside your book.
Prepare for a hit to your bank account, though--these "book packages" cost a cool $397.

(Buy Books Now is at pains to explain that it's not a PLR scheme:
We don’t use any PLR. These books are created with unique content written by our own in house writers. The book is created and SOLD ONLY ONCE. After that the files are deleted from our harddrive and you are now the sole owner of the book, the content and the copyright attached.
Good to know your "ghostwritten" ebook won't trigger Amazon's inappropriate content algorithms.)

And then there's StoryMondo, which crowdsources the whole "get it written for you" thing. They take requests for stories and/or poems, do an email blast to writers who've signed up to receive notifications (and some who haven't--me, for instance), and let the customer choose from among the submitted works.

Just the thing for seekers of bizarre egoboo. For example,
Our customer is Jason Womack who is a leading workplace performance and productivity expert. Jason is based in Ojai near Los Angeles, California and he runs a company that provides seminars, executive coaching and team performance programs. Jason has also written a book “Your Best Just Got Better” and he produces a weekly podcast.

Jason’s requirements for a story are:
  • Stories only (unfortunately no poems for this request)
  • Maximum length of 1,500 words
  • Jason Womack must be the protagonist and the story plot must fit with what The Jason Womack Company does
  • Any genre is OK – but the story must be suitable for distribution to customers of The Jason Womack Company
  • Can be set anywhere in the world or have multiple locations
  • Some inspiration is http://vimeo.com/87092997 and http://vimeo.com/90717681
The writer of the winning story gets $250. The writers of the rejected stories get nothing.

(This, by the way, is the same Jason Womack who is running a "make money publishing" workshop at the Ojai Wordfest. Will he be advising writers to use StoryMondo?)

Thus endeth this bulletin from the weird fringes of the brave new digital world.