Federal judge Denise Cote could soon decide whether the ongoing case against self-publishing service provider Author Solutions will go forward as a class action. In the latest round of briefs, attorneys for the plaintiff authors argue that a common question sits at the core of the case, and merits class action status: “Did [Author Solutions] engage in a fraudulent scheme to sell authors worthless marketing services?" But in a reply motion filed last week, Author Solutions attorneys claim the case is without merit, and falls short of the requirements for class certification.
Notably, the latest round of briefs details an evolving case, including a “shifting roster” of author plaintiffs, and a narrowing of the case from the the initial complaint. First filed in spring of 2013, the initial suit alleged that Author Solutions misrepresents itself as an independent publisher, luring authors in, and then profiting from deceptive and fraudulent practices, including “delaying publication, publishing manuscripts with errors to generate fees, failing to pay royalties, and up-selling 'worthless services' to authors." The proposed class action case before Judge Cote now includes three subclasses of plaintiffs and is limited to iUniverse authors (a division of Author Solutions), and/or to Author Solutions customers who purchased “standalone marketing services” from the company.
At the heart of the case is an alleged "deceptive" scheme to lure authors in with promises of sales and marketing exposure, when the “primary goal” is not to sell books, the plaintiffs argue, but to “sell services and books back to authors.” In filings, attorneys for the authors paint a picture of Author Solutions “consultants” with little or no publishing experience, selling "worthless" services to unsuspecting authors. “[Author Solutions], as part of a company-wide policy, hides from consumers that it is a telemarketing operation,” plaintiff attorneys argue, “with no stake in the quality or retail success of its authors' books.”
Attorneys for Author Solutions have branded the suit "a misguided attempt to make a federal class action out of a series of gripes,” and, in their latest briefs, argue that the authors “have invented out of whole cloth a purported ‘deceptive scheme’ in an attempt to indict [Author Solutions’] entire marketing operation and its senior management.” Author Solutions attorneys also argue that the plaintiffs lack sufficient evidence of any such “deceptive” scheme, and because the argument for class certification is premised entirely on "an alleged scheme," the court must determine whether the current evidence suggests such a scheme is plausible before making a certification decision.
The case comes at a time when self-publishing is growing and maturing, and the filings vividly recall the dark days of the vanity press, when authors were wooed by various companies only to be saddled with expensive fees and garage-loads of books.
There was no timetable for a certification decision, although the authors have requested an oral argument on the class certification question.
