Defamation: Dear Author and Ellora’s Cave settle…but gee

From today’s Publisher’s Marketplace, this item about a settlement in a defamation case (“terms of the agreement were not disclosed,” natch) brings out a lawsuit component of which I’m sure many are curious. That is, what happens if a lawyer representing one side in a lawsuit isn’t getting paid? How can a lawyer assure himself of payment?

A tricky situation. Sometimes lawyers who haven’t been paid ask the judge to release them from representation. (I’m almost positive it’s a serious ethical breach simply to say to a client, “Forget it, I’m out of here.”) In one case I know, the request was made for a hearing before the judge (and involving the other side’s lawyers), but in camera–that is, in the judge’s chambers, not in open court, to keep that part of the record from being made public.

So how do lawyers insure they will be paid? Ultimately, I guess they can sue their (former) clients.

I’m sort of astounded that a lawyer in the case below actually informed the judge in a footnote that his opposing lawyer had said he hadn’t been paid. The Publishers Marketplace article calls it a “distraction.” I have a feeling it’s more like an ethical breach, but maybe I’m wrong.

In any case, this settlement news hints that a few additional lawsuits might be filed here.

BTW, this seems to have been a SLAPP lawsuit.

Dear Author and Ellora’s Cave Settle Defamation Lawsuit

Romance publisher Ellora’s Cave has settled its defamation lawsuit filed against romance website Dear Author and its proprietor Jennifer Gerrish-Lampe (aka Jane Litte) after a hearing in a Northern Ohio Federal Court Thursday afternoon, according to a brief note in the court docket. Terms of the agreement were not disclosed, and EC ceo Patty Marks said in an email to their authors that they “are pleased to announce that we have reached a settlement with Dear Author. The terms are confidential, so we will not be discussing that. We are very happy though to now put all of our time and efforts into Ellora’s Cave, the authors and staff without further distraction.”

One of the most recent distractions, and the subject of multiple filings over the past few days, was a footnote in the defense’s reply brief to EC’s request for summary judgment. Defense counsel Marc Randazza tells the court he intended to delete a footnote asserting that “Ellora’s counsel has reported to the undersigned on numerous occasions that Ellora’s has failed to pay his bills” and “inadvertently” did not so before filing. He writes that he meant to avoid “potential embarrassment” for the attorney, but reasserts to the court, “Ellora’s counsel has reported to the undersigned on numerous occasions that Ellora’s has failed to pay his bills.” Randazza also writes, “Mr. [Steve] Mastrantonio did make it clear that part of his motivation for pressing for a financial settlement in this case was that he hoped to get his bill paid with the settlement.”

The same footnote asserted that the publisher “may be planning for bankruptcy even at this time–but have refrained from doing so in the hopes that this SLAPP suit will bear fruit.” The plaintiffs complained, in asking for the passage to be stricken for the record, that “counsel was well aware, given the internet and social media attention to the case, the damage from any public submission. on PACER/ECF would occur almost instantly. Defense counsel’s goal, whether later retracted or not, was simply made to bolster his clients’ defense to Plaintiffs’ claims and feed his clients’ public relations online campaign against Plaintiffs.”

While the Dear Author suit has been settled there are still reports online of Ellora’s Cave authors concerned about collecting what they say are overdue royalties. A post from Deirde Moen notes that “quite a few” Ellora’s Cave authors “have publicly stated that, as of this writing, they’ve not been paid royalties for periods later than February 2015.” In a court declaration in the defamation case filed in September, Romance Writers of America executive director Allison Kelley wrote, “I contacted Patty Marks regarding complaints about the company’s failure to issue royalty statements and checks to authors. Ms. Marks recently admitted to me that Ellora’s Cave is not up-to-date with paying its royalties and has not paid its authors in a timely manner.”

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