Ellora’s Cave Sues Dear Author Book Blog for Defamation
Romance publisher Ellora’s Cave has been having financial issues for the past year or so, but rather than sit down and fix them this publisher has decided that the best solution was a public and messy defamation lawsuit.
- Update #1: Here’s the latest news on this situation.
- Update #2: Dear Author has started a GoFundMe campaign.
Court documents filed today in Ohio have revealed that Ellora’s Cave has filed suit against the author and blogger known as Jane Litte, the proprietor of one of the best romance book blogs.
Ellora’s Cave alleges that a recent blog post on Dear Author defamed them,
and in addition to suing the publisher also asks for a temporary restraining order – meaning that Dear Author might not be allowed to report that they are being sued.
Dear Author has been writing about Ellora’s Cave for many years now (more details here),but according to the filing this lawsuit focuses on just the one post published earlier this month.
In "The Curious Case of Ellora’s Cave", Jane detailed the rise and fall of this pioneering erotic romance publisher, including discussing the many current financial issues. For example:
Yet something strange happened. Growth stagnated. In 2010, it was revealed that EC’s revenues were $5 million but a reported $6.7 million in 2006. How on earth was a digital publisher’s income declining in the biggest boom period of digital books? (This was before self publishing took off).
Word of Ms. Engler’s increasingly erratic behavior surfaced on odd places on the internet and then came the lawsuits. In 2008, former employee Christina Brashears filed suit for unpaid monies against EC. EC countersued. Brashears, Publisher and Chief Operating Officer, left and formed Samhain. Bad blood existed which culminated with EC agreeing to a settlement of undisclosed amount. The damages were alleged to be in the high six figures to low seven figures. EC’s behavior during this lawsuit was so egregious, the judge commented on it in his ruling ordering damages to be paid to Brashears. In 2009, EC filed suit against Borders accusing them of illegal business practices. The suit went nowhere.
What’s the result? Many people believe that EC will close its doors before the summer is over but at least by the end of the year. If it enters bankruptcy, author’s intellectual property rights are part of the estate and can be sold off to the highest bidder. It could wind down and revert the rights back but it’s doubtful that will happen.
The lawsuit was only filed today, but Jane has indicated that she will fight this suit. She’s looking for a good attorney in the Akron, OH, area with experience in defamation.
While I am not going to make a claim as to whether defamation occurred, I do want to introduce to an acronym which may be new to you: SLAPP.
SLAPP is short for "strategic lawsuit against public participation". This term was coined to describe a certain type of bogus lawsuit which is sometimes used by malevolent individuals to silence their critics. For example, if a publisher wanted to silence a blogger who had been airing said publisher’s dirty laundry, they could file a SLAPP.
The cost of defending against a lawsuit can be onerous, leading some to give in. On the other hand, this type of lawsuit can also result in a Streisand effect, attracting even more attention to the story which Ellora’s Cave is trying to bury.
What’s more, even if this lawsuit doesn’t generate even more negative publicity for Ellora’s Cave, it will result in the public airing of all of that publisher’s dirty laundry during the discovery process. If even half of the rumors going around are true, we could well see many authors suing Ellora’s Cave for unpaid royalties.
image by steakpinball
Amber September 26, 2014 um 8:11 pm
I’m not sure what they are trying to accomplish here. Even if they gag Dear Author that really isn’t there biggest problem. Their own authors are out there blogging about not getting paid and saying alot of the things DA posted. Those authors are just getting louder not quieter. They are just going to draw more attention to themselves by doing this and I can’t see where any of it is going to be good or helpful to them.
Timothy Wilhoit September 26, 2014 um 8:18 pm
Geez, everything Jane had to say in that post was a matter of record. It’s probably never a good idea to file a "definition of character" suit against a lawyer, especially with a weak case like this. (Yep, I meant "definition.") I’ll be interested to read what PG has to say about this…he’s had a number of posts about Ellora’s Cave. Maybe she should sue him…he’s a lawyer as well. If you’re going to make a really bad move, might as well double down on it. 😀
Jennifer @ BookShelfery September 26, 2014 um 8:40 pm
As another blogger pointed out, this sets a bad precedent for boutique publishers/small press pubs and bloggers. It brings the idea of LLC-ing my blog back to the forefront of my to-do list, because if Jane can be sued for posting that, I imagine any rabid and angry pub or author could do it to someone for not liking what they’ve written. Like perhaps a poor review.
A friend of mine was threatened with a lawsuit last year and she simply reviewed a book.
Courtney Milan September 27, 2014 um 10:17 am
LLC-ing won’t help. You can almost certainly be sued in your personal capacity for defamation–as Jane was here.
Nate Hoffelder September 27, 2014 um 10:20 am
Yes. Jane had an LLC, but she was also the author of the post.
fjtorres September 26, 2014 um 8:52 pm
The Authors should be suing to get their rights reverted *now*. If they wait to file, they may be lost to them in a bankruptcy filing.
Timothy Wilhoit September 26, 2014 um 8:56 pm
Hey, maybe if Jane countersues, SHE could end up with them. Wouldn’t that be a hoot? 😀
Just sayin' September 26, 2014 um 9:09 pm
I am a former EC editor and have not been paid since the beginning of the summer.
And me September 27, 2014 um 5:41 pm
I’m also an EC editor who has not been paid in months. Truth is a defense against defamation, and there are plenty of emails to editors saying "we know we haven’t paid you but …"
This makes three September 27, 2014 um 8:40 pm
I’m yet another EC editor who hasn’t been paid.
Mick September 29, 2014 um 12:32 pm
Contact Jane Litte and provide copies of those emails! Those are called "evidence"!
Michael September 26, 2014 um 9:29 pm
Seems to me this isn’t so much an attempt to SLAPP Jane, but to scare authors away from complaining publicly. If that’s the case, then EC may not care one bit whether their case has merit, and are gambling on the mere filing intimidating disgruntled authors into shutting up. I suspect they’ll fail. I’ve already seen several authors today, as a direct result of this filing, pull all EC titles from their own sites and refuse to continue promoting them.
Michael September 26, 2014 um 9:30 pm
* and editors
Samantha September 27, 2014 um 5:25 am
It is 100% an attempt to intimidate bloggers and authors. It’s also an attempt to discover which authors passed Jane info. There’s that little delightful nugget near the end of the complaint where they "ask" for Jane to turn over info on anonymous commenters.
Suzan Harden September 26, 2014 um 9:58 pm
This is going to be entertaining as h***. Jane, aka Jennifer, didn’t report anything that wasn’t already a matter of public record, and she’s a smart cookie. EC just opened themselves up to discovery, which they may have handed not only Jane, but all of their creditors including their authors, the proverbial smoking gun.
Chris Meadows September 26, 2014 um 11:09 pm
I don’t know. I’m not a lawyer, and there are all sorts of obscure points of law that might mean it’s not as cut and dry as that. I’m not going to celebrate until the fat lady starts singing.
Suzan Harden September 27, 2014 um 12:13 am
*sigh* If it’s like other lawsuits EC has filed where the defendant fights back, EC won’t show up and the lawsuit gets dismissed. If my OH license was still active, I’d volunteer to help Jane/Jennifer.
But I’ll keep my popcorn warm just in case.
Timothy Wilhoit September 27, 2014 um 10:19 am
PG agrees with you on the discovery aspect:
"PG says truth is a defense in a defamation suit. This means that Jane gets to use the discovery phase of the litigation to force Ellora’s Cave to disclose all sorts of information, including information that shows what Jane wrote is true."
Suzan Harden September 27, 2014 um 12:29 pm
Just because I stopped practicing law doesn’t mean I forgot everything. LOL The burden of proof is still on the plaintiff, and they’ll have to produce records showing they paid everyone. That was one of the major sticking points in the EC v. Braeshears case.
AltheGreatandPowerful September 26, 2014 um 11:19 pm
I posted her a link to Popehat, because Ken White has helped people find lawyers to fight SLAPPs in the past.
Greg Strandberg September 27, 2014 um 12:57 am
Personally I think they should be running into legal problems. Why are they paying lawyers to do this when they’ve gone delinquent on payments owed to their authors?
Why has their been no lawsuits against Ellora’s Cave…or has there? Something tells me there’ll be one on Monday, maybe a class-action.
TCWriter September 27, 2014 um 9:34 am
I was the target of a defamation action. It was meritless, but it certainly is a hassle.
The defendant will want to see if Ohio offers relief in the form of an anti-SLAPP law. If so, she could file a motion with the court which forces the the plaintiff to show evidence of defamation, or the suit is dismissed and attorney’s fees are awarded to the defendant.
Also, keep in mind it’s not defamation if it’s true, or it’s presented as opinion (instead of as fact). Also, if the person bringing the suit can be considered a "public figure" (California courts have held that authors are often "public figures"), then the burden of proof in a defamation action typically rises — the plaintiff has to prove a "reckless disregard" for the truth, not just error.
Any oneline person who is targeted should immediately go to the Online Digital Media Law Project (http://www.dmlp.org/). That site (a part of the Harvard Berkman Center) contains a wealth of useful information, and also gives you access to the referrals to defamation attorneys, free counseling, and — if you’re income qualified — subsidized attorney’s fees.
You don’t have to go this alone. So don’t.
Nate Hoffelder September 27, 2014 um 10:12 am
I checked and Ohio does not appear to have one.
Misa September 27, 2014 um 9:54 am
Is should be noted that it’s not just authors who EC hasn’t paid. They also owe money to editors and cover artists.
Ellora’s Cave Sues Dear Author Book Blog for Defamation | The Passive Voice | A Lawyer's Thoughts on Authors, Self-Publishing and Traditional Publishing September 27, 2014 um 10:00 am
[…] Link to the rest at The Digital Reader […]
Courtney Milan September 27, 2014 um 10:20 am
Just as a note, the temporary restraining order would not prevent DA from talking about the lawsuit. The TRO just asks them to take down the blogpost in question.
They would never be able to get a TRO asking DA not to talk about the lawsuit–not unless DA’s talking about it would so inconceivably bias the jury pool, which is unlikely as this is not a suit that’s of interest to the general reader.
It’s not generally prudent to talk of pending litigation, though, for a number of reasons, so I doubt we’ll hear much from Jane besides what is made a matter of public record.
Nate Hoffelder September 27, 2014 um 10:45 am
Thanks. I missed that detail.
Chris Meadows September 27, 2014 um 10:55 am
And what she’s already posted to her Twitter feed…
Ellora’s Cave, Dear Author, the Streisand Effect and freedom of speech. | Her Hands, My Hands September 27, 2014 um 1:23 pm
[…] The Digital Reader reports on the suit. […]
Ellora’s Cave Author Exodus Support Thread September 27, 2014 um 2:29 pm
[…] Just sayin’ comments: “I am a former EC editor and have not been paid since the beginning of the summer.” […]
Deirdre Saoirse Moen September 27, 2014 um 2:48 pm
I’ve added a post to support EC authors who are leaving the publisher in various ways.
I’m hoping to make it a more complete resource of authors, editors, and cover artists who are (or have been) having issues with EC so that readers, authors who need editors, and authors who need cover artists can turn to them.
S September 27, 2014 um 3:44 pm
Perhaps Jane should take a leaf out of Rachel Nunes book, and start a crowdsourcing campaign to get funds to defend the lawsuit. Rachel Nunes has a link on her site (she is suing someone who allegedly stole her work) http://www.ranunes.com
Today in disturbing publishing news | angelahighland.com September 27, 2014 um 6:00 pm
[…] The Digital Reader reports on the matter, including an explanation of what SLAPP is (note: Jane Litte reported a lack of anti-SLAPP laws in Ohio, which could prove to be a problem) […]
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[…] Struggling digital romance publisher Ellora’s Cave is suing Dear Author for defamation, because the blog reported facts about their mismanaged finances. On the one hand, it completely sucks that Dear Author has to pony up to fight these charges. On the other hand, surely this suit will be dismissed out of court? […]
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[…] can’t think of anything knowledgeable to say about the Ellora’s Cave lawsuit against Dear Author that other people aren’t covering. But as someone who writes, publishes, and blogs, […]
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DaveZ September 29, 2014 um 6:17 am
Will you be named next for republishing the bit characterizing the person’s behavior?
Nate Hoffelder September 29, 2014 um 6:43 am
No, I’m probably safe. I have no assets worth going after.
Rick Moen October 17, 2014 um 1:52 am
> I’m probably safe. I have no assets worth going after.
Gosh, if I had a nickel for every time I heard this bad idea, quite a wondrous pile of nickels would I have, sir.
1. Don’t forget that legal opponents divide conceptually into rational and irrational sub variants.
2. Reasons people launch civil litigation against even poor defendants have in the past included:
a. Attaching any future earnings, as a long-term cloud over your head.
b. Merely making the next several years of your life miserable.
c. Seeking injunctions / writs of mandamus to force you to curtail / embark upon (respectively) course of action against your wishes.
d. Hauling your friends and associates into the suit as co-defendants.
tl;dr: Don’t let your guard down and be careless just because you think you’re 'judgement proof' – because you aren’t. And this is nothing new, by the way.
Nate Hoffelder October 17, 2014 um 7:27 am
I was actually joking.
I do know that not having any assets won’t stop someone from suing me for frivolous reasons. There is in fact no protection, which is why I wrry about it as much as I worry about everything else beyond my cntrol.
Update on the Ellora’s Cave v. Dear Author Defamation Suit – The Digital Reader September 29, 2014 um 11:13 am
[…] has changed in the three days since I brought you news that Ellora’s Cave was suing well-known romance book blog Dear Author for defamation, and few of the changes favor […]
Lise September 29, 2014 um 12:04 pm
I agree with Suzan Hardan (I have skimmed so others may have stated the same or similar). (I’m not a lawyer, FYI, just work for them!). The burden of proof is on the plaintiff to prove what the defendant wrote/said is untrue. From what I’ve seen of the rantings and goings on emanating from EC, this is a knee-jerk sort of action that will, as many have said, result in exposing a whole lot of what I’m sure the EC folks would rather not be exposed. And the upshot is then that once all of that is out in the bright light of day, it gives ammunition to all the other editors and authors who might decide to use it to pursue their own suits and claims. Additionally, I think that DA’s tempered reporting is just reporting – journalistic style. It’s a bit different for a recognized reporting site like DA to give an overview of a situation, and for a single author to blast an entity or person on their blog. That’s why everyone should be fairly circumspect in what they write, how they say it, as well all the folks who respond.
FormerECeditor September 29, 2014 um 12:41 pm
I’ve already forwarded Jane several emails I sent to the CFO asking about nonpayment, which were never answered by the CFO. I hope they will be placed into evidence.
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Law Suits | September 30, 2014 um 8:27 pm
[…] and several others so it seems legitimate and factual. Some people are speculating that this is a SLAPP case, a law suit designed to silence people about this topic and if you read further into this it […]
Michael October 1, 2014 um 1:16 am
In case the former editors who commented above are subscribed to this post, thought I’d share Courtney Milan’s offer to try to provide a lawyer to look out for your interests if you wish to help Jane but are afraid to do so on the record due to your contract with EC.
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Walter Daniels October 4, 2014 um 9:27 am
IANAL, although I have more experience dealing with people like Ellora’s Cave management than I ever wanted. I’ve suggested before, and will in similar cases, filing an FBI/Postal Inspector’s complaint of embezzlement. Surely enough has been "unpaid," to qualify for _Felony_ charges. That should be grounds to "break the rights contract," (ask a lawyer to be sure) and get all rights back.
Also, the "lawyer" filing the suit (defamation) had better be sure that his/her license isn’t in jeopardy. Barratry (malicious and/or frivolous lawsuits) is taken very seriously by Bar associations. EC’s "owner" is clearly not "rational," for _any_ version of the word.
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