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Judge Cote Denies Class Action Cert in Lawsuit Against Penguin Random House, Author Solutions

3293465641_b6c5081e87_bThe first class action lawsuit filed by authors against the infamous vanity press Author Solutions has suffered a blow this week. US District Court Judge Denise Cote has handed down a ruling that denied class action status.

This lawsuit was originally filed in 2013 by the law firm Giskan Solotaroff Anderson & Stewart on behalf of authors Jodi Foster, Kelvin James, and Mary Simmons. The authors claim that they had been fleeced by Author Solutions.

The authors alleged unjust enrichment, fraud, and violation of various statutes and consumer protection acts. More specifically, the authors said that ASI had neglected to send accurate royalty statements and failed to pay royalties, introduced errors into the authors' books, and sold the authors worthless marketing services.

Having completed discovery in February 2015, the authors' lawyers filed for class certification, and in doing so they aired a lot of ASI’s dirty laundry in public. That certification was denied this week. According to Writers Beware:

That certification has now been denied, in a decision handed down by Judge Denise Cote on July 1. From what I can tell on an initial reading, the decision seems to boil down to the fact that in one of the subclasses they were seeking to certify, plaintiffs weren’t able to meet certification requirements; and in the other, weren’t able to demonstrate a clear pattern of deception on the part of AS that could apply to everyone in the proposed class.

The ruling can be read in full here.

Giskan Solotaroff is probably going to appeal this decision. They are also pushing forward on the second lawsuit they filed against Author Solutions earlier this year.  That suit has been consolidated with another lawsuit brought by two individual plaintiffs, Everette et al. v. Author Solutions LLC.

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image  by steakpinball

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Mackay Bell July 3, 2015 um 2:45 pm

"… weren’t able to demonstrate a clear pattern of deception on the part of AS…"

Judge Cote bases her legal opinions on a very simple theory. If Apple does it, it’s illegal. Otherwise, fine.

Tim Wilhoit July 3, 2015 um 7:04 pm

"Judge Cote bases her legal opinions on a very simple theory. If Apple does it, it’s illegal. Otherwise, fine."

I assume you didn’t read the text of Judge Cote’s decision on US. vs. Apple, et al. If the publishers had not settled, they would have been found liable just as Apple was. Judge Cote is quite capable of switching gears when hearing a completely different case.

fjtorres July 3, 2015 um 2:57 pm

The problem with class action suits is you have to demonstrate the practices affected enough people in the exact same way. That makes it the first line of defense because without class certification each victim has to sue independently, often in small claims court. Which means no big payday for the lawyers.

The Apple employee class action suit was easy: all employees were affected by Apple’s "no poaching" agreement in the same way. WalMart’s employee class action failed certification because different employees were affected by different actions in different ways. It looks like the classes in the AS suit were either not well-defined or, more likely, not well documented. AS uses many different tricks and they don’t uses the same ones on everybody.

Sounds like the plaintiff lawyers dropped the ball.

Fbone July 3, 2015 um 3:18 pm

The cost of the lawsuit just tripled.

The author’s legal fees will become far higher than what they paid to AS.

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[…] afternoon's news about the latest stage in the ongoing suit against Author Solutions reminded me of another potential lawsuit I have been […]

Mick Rooney July 3, 2015 um 9:00 pm

Let’s park non-sensical comments regarding Apple. There are other places and forums fot tinfoil hat theories.

I’ve read all the court released documents on this, including Wednesday’s denial of certification. As much as it pains me to say it, Judge Cote was correct. She took GSAS and their case apart point by point to an almost shocking and embarassing degree. GSAS has been on a steep learning curve in regards to publishing services throughout this case, and by god it shows. I think they knew this was coming after the full depositions, and that’s why they filed in Indiana as well.

This was intended as a class action filing, and yet we had plaintiffs dropping out, strategy being changed and refiled during argument and discovery, and what ultimately amounted to theory and circumstance that got boiled down to just one Author Solutions imprint and a schoolboy lack of appreciating state laws and a contract that craftely avoided claims in other states like New York.

Judge Cote Denies Class Action Cert in Lawsuit Against Penguin Random House, Author Solutions | The Passive Voice | A Lawyer's Thoughts on Authors, Self-Publishing and Traditional Publishing July 4, 2015 um 11:00 am

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David Gaughran July 6, 2015 um 6:07 am

I’m not a lawyer, so the following is based on a layman’s interpretation of the ruling. And I’d like to focus on certain limited aspects of it, rather than points of law.

1. I don’t know if the plaintiffs' lawyers will be appealing or not, or whether there is room here to appeal, but the second class action is still ongoing.

2. That class action is based in Indiana, rather than New York. It seems that all Author Solutions imprints (bar iUniverse) have an Indiana venue clause, meaning that Judge Cote couldn’t rule on a whole bunch of things related to other imprints etc.

3. One of the key plaintiffs pulled out of this case in January (for reasons unknown to me), meaning that the plaintiffs' lawyers no longer had a representative for the crucial NY class of authors, meaning Judge Cote couldn’t rule on a whole bunch of other things.

4. It seems that the key point in certification being denied was that the plaintiffs' lawyers failed to demonstrate that the alleged actions (essentially shady selling of marketing services) were a company-wide/directed practice, rather than isolated cases. It’s entirely possible that the plaintiffs' lawyers were restricted from making this case because of (2) and (3) above – restrictions that shouldn’t apply in the second, Indiana-based class action.

Or, to put it another way, the fight continues.

Syn July 6, 2015 um 2:14 pm

Nate, off topic. Any word on what happen with the lawsuit from Ellora’s Cave suing Dear Author?

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