Class Action Lawsuit Filed Against PublishAmerica

Posted by Victoria Strauss for Writer Beware

I can't count the number of questions I've received over the years from unhappy PublishAmerica authors, wondering whether a class action lawsuit against PA has been/might be/ever will be filed. Frankly, I would have bet against it, given the cost, the difficulty of gathering plaintiffs, and the ambiguities of PA's business model.

Now I get to eat my words.

On June 11, 2012, a class action summons and complaint was filed in Maryland District Court in Baltimore against PublishAmerica LLLP, by plaintiffs Darla Yoos, Edwin McCall, and Kerry Levine (Case Number 12-cv-1696). The full complaint can be viewed here. Attachments include the contracts for the three plaintiffs.

Quoting from the Introduction to the complaint--this will all sound very familiar to long-time PA observers:
Defendant PublishAmerica is a book publisher that  portrays itself as "a traditional, royalty paying publisher." But unlike traditional publishers, which profit from the sale of books, defendant profits from its own clients, i.e., the authors who submit works for publication by defendant. Defendant lures these authors in by promising to publish their book at no cost, and it makes false and misleading representations that it will promote their books and support the authors' efforts to sell their own books. But this is not the case.

Instead, once the authors sign the contract, which gives defendant the rights to their book for seven to ten years, defendant does nothing constructive to promote their books, but instead offers various promotion packages on a fee-for-service basis....These services, which are either misrepresented or never carried out, are not reasonably designed to promote class members' books....

Defendant provides very poor editing services, is slow to respond to book orders, and it routinely overprices the books it publishes. This is no accident. Defendant will only lower the price of its clients' books to a competitive rate for a $399 fee. These practices make it difficult for even the most enterprising authors to promote their own books.

Defendant is not responsive to inquiries from its clients, or worse it is dismissive or belligerent.

Like plaintiffs, thousands of other aspiring authors who signed up with PublishAmerica have become demoralized because the publishing contract appears to be little more than a pretext for selling dubious services...These authors also feel trapped because PublishAmerica owns the rights to their books for seven to ten years. This presents a Hobson's choice for the authors: either throw good money after bad for suspect promotional services or abandon the book that was a labor of love.
The complaint is long, but worth reading in its entirety. Among other things, it alleges that PA makes money off its authors while billing itself as a traditional publisher, requires authors to pay for "usual and customary marketing that any reputable publisher would do as a matter of course," offers "services that are not reasonably designed to promote book sales" (the complaint includes numerous examples of PA's marketing solicitations, including the "Hey Amazon" banner I noted in my recent BEA Report, for which authors had to pay $99), removes negative comments from its website and "attacks the credibility of its detractors," and "duped" the three plaintiffs with, among other things, "bogus services" and books "riddled with errors."

The complaint seeks "a declarative judgment that defendant's publishing contracts violate the Maryland Consumer Protection Act," including the MCPA's prohibition against deceptive trade practices. It asks the court to certify the class action, return publication rights to the three plaintiffs and other members of the class who so desire, allow plaintiffs and the class to recover damages, allow plaintiffs and the class to recover the costs of the suit, require PublishAmerica to pay restitution to the defendants and the class, and grant "further relief as may be determined to be just," including punitive damages.

A jury trial is demanded.

Per PACER, a Notice of Appearance for the plaintiffs was filed electronically on June 12 by John B. Isbister of Tydings & Rosenberg LLP (a Baltimore law firm). The complaint also mentions Daniel S Katz of the same firm.

Interestingly, the complaint is also signed by Steve Berman and Barbara Mahoney of Hagens Berman Sobol Shapiro, a high-profile Seattle law firm involved, among other things, with the recent ebook price-fixing litigation against Apple and several Big Six publishers. The complaint notes that a pro hac vice motion has yet to be filed for Berman and Mahoney (this is a motion by an attorney in a given jurisdiction to admit an attorney not licensed in that jurisdiction to a case), and such motions aren't always granted--but Hagens Berman's presence in the case confirms that this is no frivolous endeavor, and suggests that big guns will shortly be turned PublishAmerica's way.

I'll be following this as it develops.

EDITED TO ADD: I'm getting lots of questions about how to participate in the lawsuit. I don't know the answer, but I'd suggest that authors contact the law firm that's acting for the plaintiffs:

Tydings & Rosenberg, LLC
100 East Pratt Street, 26th Floor
Baltimore MD 21202
Telephone: 410-752-9700

EDITED TO ADD: Hagens Berman now has information on its website about the PA lawsuit, with contact information for the firm:
Authors who believe they may qualify as part of the proposed class may contact Hagens Berman by calling (206) 623-7292 or by emailing the firm at publishAmerica@hbsslaw.com. You can also contact the firm online by clicking here.

EDITED 9/12 TO ADD: The lawsuit has been dismissed. See my followup post.

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