Lawyers acting for Author Solutions are due to file new papers with a New York court this week in the latest development in the lawsuit against the assisted publisher.
The Penguin Random House-owned company Author Solutions provides a variety of services direct to authors under a series of imprints, and also operates lists on behalf of traditional publishers such Simon & Schuster. However, the company has been widely criticised for over-pricing its publishing packages and marketing fees, and misleading writers about the potential of their titles.
In April 2013, the law firm of Giskan Solotaroff Anderson & Stewart filed a class action lawsuit against Author Solutions in New York, and since then has filed two further suits in Indiana, where Author Solutions is based. The second class action suit was filed in November 2014 in the District Court of the South District of Indiana, while the third was filed in the same court in March this year.
In the suits the law firm accuses Author Solutions of seeking to “make money from authors not for them”.
The New York case has survived various motions to dismiss, and the plaintiffs have now filed for class certification covering those authors who purchased a publishing packaging with Author Solutions from 2007 onwards.
A class action will allow a few people to sue on behalf of a larger group of people. Oren Giskan from the law firm told The Bookseller: “We would prefer it as a class action because we believe Author Solutions treated authors in the same way in terms of the practises we’re complaining about.”
The first suit was filed in the Southern District Court of New York in April 2013, naming Kelvin James, Jodi Foster and Terry Hardy as plaintiffs on the complaint. In the class certification application filed for this suit in February 2015, Hardy has been replaced by Mary Simmons as plaintiff.
The class certification filing includes extracts of depositions from a number of staff at Author Solutions, where they are questioned about the way the business operates. They are William Becher, senior v.p. of global fulfillment; Bruce Bunner, v.p. of global sales; Susan Dunn, global director of marketing services; Kevin Gregory, senior v.p., c.o.o. and c.f.o.; Keith Ogorek, senior v.p. of marketing; Joel Pierson, editorial services manager; Don Seitz, senior v.p. of business development; and Kevin Weiss, former chairman and c.e.o. These depositions were carried out in 2014 and 2015.
Author Solutions has previously opposed the move to create a class of authors, and is due to file further papers with the Southern District of New York by 14th May. In its previous filing on 31st March, Dorsey & Whitney, the law firm acting for Author Solutions, said the move to get class action certification “amounts to nothing more than a hollow indictment of defendant Author Solutions . . . and the entire supported self-publishing industry”. The filing said class action certification would require the court to “ignore evidence that the vast majority of AS’s customers are satisfied” among other things.
The November 2014 Indiana class action filing names Donna Jo Everette and Wanda Spencer as claimants, and calls for a jury trial. It says that although both plaintiffs feel their claims are covered by the New York suit, they have filed the Indiana lawsuit “on behalf of all authors with forum-selection clauses in their publishing agreements…granting Indiana exclusive jurisdiction over their claims”.
The March 2015 complaint in Indiana names Patricia Wheeler and Helen Heightsman Gordon as plaintiffs, and also calls for a jury trial. Both complaints in Indiana have been filed directly against Author Solutions, not the Penguin Group and Author Solutions. In 2014 Judge Denise Cote dismissed Penguin as a defendant in the action.
The March 2015 filing also draws on information from the depositions of Author Solutions’ staff, such as Dunn, who is said to have told her deposition that selling books is “not one of the goals of Author Solutions’s marketing services”. The filing also quotes Weiss as saying during his deposition that “the [A]uthor himself or herself [that is] the biggest source of sales on average for any given book”. At the time of the sale to Penguin, it was revealed that two-thirds of Author Solutions' revenue comes from selling to authors, rather than selling their books.
The lawsuit filed in Indiana in March includes an additional claim over the November 2014 one that a specific Indiana law – the Indiana Senior Consumer Sales Act – was violated because one of the plaintiffs, Wheeler, is over the age of 60.
Giskan told The Bookseller that the goal is to consolidate both Indiana cases into one.
Andrew Phillips, c.e.o. of Author Solutions, told The Bookseller the company did not comment on pending litigation.
Author Solutions, which was bought by Penguin in 2012 and became part of Penguin Random House when the publisher merged with Random House in 2013, has said that the lawsuits have mischaracterised its business, which is as a supported self-publisher, and not a traditional publisher.
Giskan Solotaroff Anderson & Stewart continues to invite authors of Author Solutions to contact them in relation to the class action suit, and no date has yet been fixed on when the suits will progress.