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Monday, March 30, 2015

Ellora's Cave v. Dear Author: How Two Smart, Talented Women Managed to Ruin Their Images

I thought long and hard before I even started writing this blog post. I've been talking about the EC v. DA lawsuit here because it fascinates me from a legal standpoint. Frankly, I almost didn't write this because I know the trolls are out in force. In fact, anonymous trolls tried to turn TPV into a bloodbath last week. So, this is one of those rare instances where I am closing comments.

FULL DISCLOSURE: Since lack of disclosure is what got the subjects of this post into trouble, here's mine.

I submitted a story to EC when they were filling their Tarot Card theme line. My story was rejected. I only had contact with editor Brianna St. James. I'd normally give exact dates but I cleaned out all submission e-mails and responses dated prior to 2010 when I transferred my files from my beloved former laptop Isabella to my new computer at Thanksgiving. I also have two friends who wrote for EC and were instrumental in jumpstarting Alter Ego's career, Tea Trelawny and Lyla Sinclair. Yes, they are pseudonyms. No, I'm not going to betray their trust and tell anyone their real names. Neither of them has said anything to me regarding EC paying or not paying their royalties. In fact, the last time I had contact with either of them was in May and December, 2013, respectively, i.e. long before the current brouhaha started.

As far as DA goes, none of my books, under either of the names I use to publish, have been reviewed by a DA reviewer. I personally know a handful of romance writers who were reviewed by DA. The reviews ran the gamut of A to D+. One personal friend was denigrated by Jane Litte for having the audacity to use her agent to help her indie pub her books. These books were previously trad published, but my friend got the rights back before her publisher went under.

I do write erotica. I do not write New Adult. Whether or not that makes me a competitor is left up to you, the reader of this post, to decide.

Yes, I do review books here on this blog or Bloodlines, on Amazon, and on Goodreads (though not so much there anymore). When I do, it's under one of my author names. I don't review under a separate name. I don't review books for a third party such as a publisher or a review site. I sure as hell don't review books for money. And I definitely don't review my own books. Any books I have reviewed, I either bought or were free as part of a general promotion to the public through BookBub or Ebooksoda. I do review books in the genres I write.

If I can't give a book a 3-star rating or higher (or it's equivalent), I do not post a review anywhere. The reason I don't? If it's that disappointing to me, then I don't finish it. I believe it's unfair to write a review for a book I didn't finish reading. And life's too fucking short to waste time reading a book I don't like, much less writing the review for it.

The only review I've written that other folks might question is the one I wrote for my now-writing partner, Laura Kirwan. So here's the timeline:

8/1/14 - Laura e-mailed me privately about a comment I left on TPV. We struck up a conversation about publishing and law because we have similar backgrounds.
9/16/14 - I bought Laura's book, Impervious.
10/2/14 - I left a review of Laura's book on Amazon.
On or about 10/30/14 - A series of comment threads on TPV, joking about me being a lawyer for zombie rights, turns into a serious private conversation between Laura and me about writing a joint series. (Sorry, I'm fuzzy about the exact date, but I had a bad cold and was stuck in a hotel room while waiting for my car to be repaired.)
1/5/15 - After a ton of brainstorming and a hair of negotiation, Laura and I sign a contract to write the 888-555-HERO series.

Oh, and I'm currently reading Laura's second novel Crushed, I'm loving it, and I'll probably leave a review for it because I wouldn't go into business with someone who writes crap.

And last, but not least, I used to be an attorney. Key words there being "used to be." At one point, I was licensed in Texas, Ohio, and the Federal District Court - Southern District of Texas. My license in Texas is currently suspended (which I did deliberately by not paying the State Bar fee for inactive attorneys because I don't see the point of paying good money for not doing something), and my license in Ohio is currently inactive. My Federal license is partially based on my Texas license so I figure I'm suspended there as well. (I was pretty damn sick in 2007 when all of this went down, and I didn't care enough to call the Federal court to find out for sure.)

So that last paragraph means I'm not an attorney, I do not and cannot represent any of the parties mentioned below, and nothing I'm about to say can be construed as legal advice.

Okay, now that all the bullshit is out of the way.

* * *

On Tuesday, March 24, Jennifer Garrish-Lampe, who owns and operates Dear Author and blogs there as Jane Litte, revealed that she is also YA author Jen Frederick. The disclosure initiated a firestorm on the interwebs. Other publishing bloggers attempted to discuss the legal, business and review ramifications of the revelation often have had the comment section hijacked by supporters of both Dear Author and Ellora's Cave. Ellora's Cave sued Dear Author for defamation back in September. Dear Author countersued. The case is currently ongoing in Federal Court in Ohio.

While almost any court filing is viewable by the public in person since it's a matter of public record, you have to pay for online access through PACER. Deirdre Saoirse Moen has put together a timeline for the litigation using Courtney Milan's thread system.

THE LEGAL STUFF I FIND INTERESTING
As I said in a previous post, the truth is the ultimate defense in a defamation suit. EC is going to have to prove that any FACTS that DA presented in its original blog post that's at the heart of the lawsuit are a lie. It's up to the judge and/or jury to decide who's telling the truth about the facts, not me, not John Doe on the streets, not anyone else.

Normally after a lawsuit has been filed, the first thing ANY lawyer tells their client is don't talk about ongoing litigation to anyone. Why? Because a client may accidentally reveal something that may damage their case, or worse, their reputation.

People believe that the more they talk, the more they present their side of the story, then the more other people will believe them. And a lot of times, it's just the opposite.

Some civilians think the 5th Amendment, and therefore a Miranda warning, applies to all court cases. It doesn't; just criminal cases. The EC v. DA case is a civil case. The 5th Amendment right to not incriminate yourself does not apply. No official at the court is required to tell you to keep your mouth shut. Therefore, it's up to each side's attorney to remind them to be quiet about particulars of the case.

There are times when either the attorney or the client at his attorney's instruction may reveal certain information. And usually, the lawyer is smart enough, and calculating enough to reveal tidbits as part of their strategic maneuvers.

For the record, I'm not talking about refusing to comply with legitimate discovery requests. Discovery is when each side requests information from the opposing side before trial. Opposing counsel will try to make a request as broad as possible while your attorney will try to keep it as narrow as possible.

But back to talking about the case outside of court, sometimes even the attorneys majorly screw up about fighting the wrong fight.

For example, the humongous mistake Apple's attorneys made was trying to win their conspiracy case in the court of public opinion when their case was before a federal judge. What's doubly sad was this was the ATTORNEYS, not the Apple execs or employees, being stupid. Most federal judges don't put up with those shenanigans. I know. I have a second asshole from a butt chewing I received from a Federal judge for a relatively minor infraction in my first year of practicing law.

In EC's case, I'd bet good money that EC's lawyers told the corporation's principals to keep quiet, but the owner Tina Engler will not or cannot shut up. She keeps issuing tweets and commenting on blogs about the current EC lawsuit against DA. She's making the same mistake Apple's attorneys did. It doesn't matter what total strangers think concerning her finances, or who's lying or whatever else she may bring up in social media. She has to convince the judge that EC paid the company's bills and royalties and DA is lying about EC not paying the company's bills and royalties. That's an issue of fact that the judge decides.

Doing crap like this doesn't help your reputation. In fact, Tina's probably doing more damage to herself and her company than Jennifer's post could have possibly done, regardless if Jennifer told the truth or not. If I were Tina's attorney, I'd be pulling out my hair. Or filing a Motion to Withdraw. (Fancy way where the attorney says "I quit" in ongoing litigation. Sometimes the judge will let you quit. Sometimes she won't.) Sometimes, the very best thing you can do in your case is remain silent and let the attorneys handle it.

As far as Jennifer's revelation goes, the information that she is a publisher and writer like Tina could potentially influence the case, especially if EC proves they did pay bills and royalties. Then there's a question of malicious intent by Jennifer in writing a derogatory post about another writer/publisher.

(Before anyone gets their panties in a wad, "malice" has a special meaning in legal proceedings that differs from every day use.)

Regardless, Jennifer's attorney probably recommended that she reveal her author alter ego as a way of spin control since they've probably just started discovery. I'm sure he's very aware that you always want to be the one to control the release of your own information, especially potentially damaging information. While there will be fallout from the revelation, it usually isn't as bad if it comes from your side rather than your opponents.

I suspect the knowledge of Jennifer's pseudonym was about to be revealed through discovery or Tina's attorney found out through another method. There's also the factor that the LLC business filing of Jennifer and her husband's publishing company, the same company that originally published many of Jen Frederick's books, is a matter of public record.

Once the discovery process is over (And that's assuming it ever is. Engler is probably notorious in Summit County for her antics and failure to comply with discovery requests after the dressing down a Summit County judge gave her. Believe me, judges talk.), and if Jennifer's attorney can, he will probably file a Motion for Summary Judgment. Such a motion says the law is clear and there are no issues of fact for the judge to decide.

If the judge believes there is a fact in question, or EC's attorney successfully argues there's a legal question to be decided, then the case moves to the next step, which is mediation and/or trial.


PERSONAL OPINION
Once upon a time, I admired both Tina and Jennifer as smart, successful women. Tina started her own publishing company after constant rejections from established publishing houses, proved there was a market for erotica, and turned Jasmine-Jade Enterprises, Inc., into a multi-million dollar company. Jennifer created a highly successful book review blog that allowed readers to freely express themselves, questioned publishers' abusive treatment of writers, and stood up for reviewers' First Amendment rights.

Now?

Now, I see two women take their personal strengths and turn them into major weaknesses.

Tina has a gung-ho, in-your-face, take-no-prisoners attitude that worked well in jump-starting a one-person operation into a multi-million dollar empire. But in the process, she also became a typical CEO, where she depended on employees because one person simply cannot do such a job alone. That in itself is not a bad thing.

What I believe went wrong with the company was not having the right people with the needed skillsets in the right positions for the rapid growth of the corporation. From my reading of the court documents from former partner Christine Brashear's lawsuit against the corporation, Tina and the other officers of Jasmine-Jade Enterprises willfully disregarded their duties as officers of a corporation.

And as I've seen too many times before, when things are good in a company, everyone's happy. When the money dries up, things get ugly in a hurry. In the case of Ellora's Cave, they're facing the same problem as the big boys in New York, the influx of indie work competing in the field. Like many decent-sized companies, they were slow to adapt to the new competition. And then came the double whammy of the drop in income and the Kernel Pornocalypse, which damaged EVERYONE in erotica publishing, big and small. Most of us have adapted and are regaining sales. Ellora's Cave did not.

When writers started questioning the drop in income, I think Tina took it personally and started looking for a scapegoat. I truly believe that Tina thinks she is protecting hers and her company's reputation when she lashes out on social media. So now her take-no-prisoners attitude has circled around to where according to her own court pleadings, the following allegedly occurred:

- Some editors and cover artists are allegedly not getting paid.
- Some writers are allegedly not receiving royalties.
- Some editors, artists and writers are allegedly receiving payments on post dated checks that are months late.

Therefore, it's making people question Tina's integrity, and she probably feels she has to fight back.

Going on social media and harassing people isn't going to make Ellora's Cave's problems go away. It's not going to stop the evidence from being presented in court. And rather than own up and fix the problems, Tina's take-no-prisoners attitude will sink all of her business ventures. To me, this is the worst thing about sudden success. Frankly, I want to weep at the self-inflicted damage I'm seeing.

If anyone thinks this means I'm giving Tina a free pass, hell, no. It kills me that a talented writer has become as greedy and rights-grasping as the other publishers we indies are fleeing from. I want to see her grab the reins, get whatever debts or royalties owed paid up to date, and get Ellora's Cave back on track instead of wasting her time posting pictures of herself flipping off people on Facebook. However, I highly doubt that will happen.

Then there's Jennifer...

My real problem here is Jennifer's an attorney. We didn't attend the same law school. I wasn't licensed in any of the same jurisdictions as Jennifer, nor she mine. I can't vouch for what ethics requirements she might have had in law school or as continuing legal education (CLE). However, I can talk about the requirement I had.

The first rule is basically "Don't do something you know damn well is improper." The second rule was "Don't do anything that gives the APPEARANCE of impropriety." As an attorney, you're an officer of the court, you're an integral part of our judicial system, so don't FUCKING make the rest of us look bad!

What this comes down to is that I think Jennifer should know better.

On Dear Author, Jennifer has taken many writers to task for doing the exact same things she did, such as not being transparent about her pseudonym and for indie publishing. She set herself up, beginning with the advent of her Jane Litte persona, to be the police for the publishing community. It's not that her actions were wrong, but her stance on the matter as DA's Jane Litte was hypocritical, and therefore gave the APPEARANCE of impropriety.

The fact that she also got herself invited onto closed loops or friend-requested other writers on Facebook as Jen Frederick when she knew Jane Litte had been or would be denied access also leads to the APPEARANCE of impropriety.

The third problem is the Dear Author website is owned by Jennifer's company, Dear Author Media Network, LLC, and it reviews a lot of books.

For the background info, the FTC changed its regs a few years so that blogs that review products are required to state their financial interest in the products they review. For example, when I got free movie tickets from Studio Movie Grill to see Rush and I reviewed that movie on Wild, Wicked & Wacky, then I'm supposed to tell you I got the movie tickets for free. I didn't. Probably because I got so excited about Chris Hemsworth's gratuitous butt shots. But if any of you reported me to the FTC for non-disclosure, I'd probably get an e-mail from them just saying fix your disclosure because my only financial interest was the $8.00 ticket and I doubt if more than one or two of you went to see Rush based on my recommendation. (P.S. I did add the disclosure.)

Jennifer's situation is a little different. She allowed books that she wrote as Jen Frederick be reviewed and promoted on Dear Author without disclosing her financial interest in those books. Those bestselling books. Granted those books were reviewed by another reviewer than Jennifer, but it begs the question of whether the reviewer gave the books a glowing review because she knew it was Jennifer. Probably more than one or two readers bought Jennifer's books based on the DA review.

Again, I doubt the FTC would care beyond sending an e-mail to Jennifer saying fix your disclosure. But it doesn't mean a few readers wouldn't feel betrayed (and from some of the blogs, more than one or two readers are feeling that way), so we're right back to the APPEARANCE of impropriety

On the positive side, Jennifer, as Jane Litte, has stood up for the writer community numerous times, which to me, is a great and wonderful thing. In fact, a lot of people donated to her legal defense fund in the EC lawsuit. Heck, I even promoted it on this blog.

But now, some of the people who donated feel betrayed, not only for Jennifer's actions I've already mentioned, but also because Sarah Wendell organized the GoFundMe campaign to help DA with legal expenses in the EC case, and she knew that Jennifer Garrish-Lampe and Jen Frederick were the same person. Sarah is also one of the proprietresses of the romance book review blog Smart Bitches, Trashy Books. And Sarah and Jennifer Garrish-Lampe weren't transparent about their business relationship. As a result, the GoFundMe campaign now is tainted with (say it with me, folks) the APPEARANCE of impropriety.

For the record, I don't regret promoting the DA legal fund. I think fighting the EC lawsuit is necessary to prevent the chilling of any discussion regarding the publishing industry and books on the internet.

At this point, it no longer matters that what Jennifer did was almost perfectly legal. There's a big question concerning her ethical compass thanks to that appearance of impropriety.

Which is a damn shame.

As I've said before on this blog, I don't agree with a lot of what Jennifer says on her blog, but I'd defend her right to say it. But now it appears, what she said wasn't what she believed. She performed the same acts that she castigated many others for. So I'll question everything she says thanks to that damn appearance of impropriety. And others are now judging her the same way she judged them

Which is even more of a damn fucking shame because there were a lot of things she did well.

What I hope Jennifer does is make a REAL apology (because let's face it, if another writer had made the lame half-apology she did last Tuesday, Jennifer as Jane Litte would have roasted him alive), work on making Dear Author more transparent, and add disclaimers whenever her work is mentioned on the DA. All I'm asking of Jennifer is to live what she preaches.

* * *

After reading through what I've written, I now have to wonder what strength of mine will be my downfall. I'm under no illusions that I'm perfect. But looking at the history of two women I once admired, it scares the hell out of me.