Class Action Complaint Against Penguin/Author Solutions – Part 1

On April 26th US law firm Giskan SolotaroffAnderson & Stewart filed a class action complaint on behalf of three authors in the Southern District Court of New York. The plaintiffs have been named as Penguin Group (USA) and Author Solutions of Bloomington, Indiana. For the uninformed, you might wonder why a leading global publisher and the largest company of paid-publishing services are named as joint plaintiffs in the same law suit. The answer is simple. Last year, Penguin’s owners, Pearson, purchased Author Solutions (ASI) for $116 million and began a process of integrating ASI into the Penguin Group worldwide. That process has culminated in recent months with a revamp of Penguin’s own self-publishing service imprint, Book Country, using ASI technical know-how, and in the past week Andrew Philips (from Penguin) replaced Kevin Weiss as CEO of ASI. Weiss was given a position on the Penguin board of directors following Pearson’s purchase of ASI, but until later this week, when his future will be disclosed, we won’t know if Weiss has ended all connections with Pearson/Penguin. Expect another twist on that in the coming days. 
The  class action complaint lodged with the New York court at the end of April alleges that ASI misrepresent its company and services with the intention of luring authors in with claims that its books can compete with “traditional publishers,” offering “greater speed, higher royalties, and more control for its authors.” The suit also alleges that ASI profit from “fraudulent” practices, fail to pay royalties due, and engage in activities like “delaying publication, publishing manuscripts with errors to generate fees, and selling worthless services, or services that fail to accomplish what they promise.” Giskan Solotaroff Anderson & Stewart cite that these practices are violations of the California Business and Professions Code, and also violations of New York General Business Law
The full 33 page document detailing the complaint by the three plaintiffs can be viewed in full here via Victoria Strauss of Writer Beware. 
In the second part of this article I will look at this class action complaint, the allegations made, and its chances of success and what it might mean for self-publishing and Penguin. First, let’s take a closer look at ASI and their dominate position in the paid-publishing service world and the way it has been handled by some of the publishing media. 
Author Solutions (ASI) is the parent company of self-publishing imprints AuthorHouse, iUniverse, Trafford Publishing, Xlibris, Palibrio, and Booktango and also partners and powers a number of self-publishing imprints with traditional book publishers like Simon & Schuster (Archway Publishing), Thomas Nelson (WestBow Press), Hay House (Balboa Press), Guideposts (Inspiring Voices) and Writer’s Digest (Abbott Press).  Author Solutions reports publishing 190,000 titles written by 150,000 authors in addition to operating the Author Learning Center, the stated purpose of which is to provide authors with online education resources, access to industry expertise and an online community to connect with other writers. It also offers a suite of “book-to-screen” services intended to provide authors with Hollywood access. 
However, ASI has also been the subject of concerted criticism from a sizable and highly vocal section of the self-publishing community (though, I suspect not nearly as sizable and vocal as reality bears out when you consider the continued popularity of ASI imprints among new and naive authors) in regards to misleading service information, aggressive services marketing, poor royalties and author contracts, and hidden and expensive service fees. The company presents its business and imprints under the much misused moniker ‘indie publishing’ while some within the self-publishing and traditional publishing communities argue that it is nothing more than old-style vanity publishing re-invented for the modern publishing age. For years the self-publishing community, and companies that provides author services at a price, have been maligned for their lack of editorial and product quality, professionalism and grasp of how the book business works. So I can appreciate how galling it must be for the collective self-publishing industry to watch as some of the biggest traditional players—publishers and agents alike—stick their greedy fingers into The Self-Publishing Honeypot in partnership with a company they consider to be one of the worst of the worst. All the while, the traditional publishing folk still desperately try to pedal the line from New York to London to Paris that they are curators and gatekeepers, or publishing is a business, or money flows toward the author. 
Utter bollox! Publishing is certainly a business, but the vast amount of money in this industry—for most—never flows anywhere near the authors. And nothing has changed now or decades ago, whether the author is paying an upfront fee or receiving an advance as they walk in the front door, or gracefully smiling with a 7-10% royalty contract as they are kicked out the back door. The author pays somehow and somewhere along the publishing road, whether through concessions on contract terms or outright earnings. It is just an easier sell to charge an author at the back end of a publishing deal after publication than it is to make promises and demand money at the front end. All that has changed now in publishing is that the author has the opportunity and choice to take on the publisher’s risk and financial investment before publication than discover it months or years after publication. 
David Gaughran has presented his views on ASI and Penguin in an outstanding article over on his Let’s Get Digital blog called The Author Exploitation Business. Perhaps the key point in the whole article for me was this piece: 
“The Publishers Weekly piece on Penguin’s aggressive expansion plans for Author Solutions makes no mention of the company being a universally reviled vanity press that has cheated 150,000 writers out of their savings.
“This is something I’ve been noticing for a while, and Publishers Weekly isn’t alone. The pieces in The Bookseller, GalleyCat, and Digital Book World also make no mention of the widespread criticism that Author Solutions has attracted, nor do they mention that the company is currently the subject of a class action suit for their deceptive practices.
“The reaction at the London Book Fair was similar. No-one from traditional publishing wanted to talk about Penguin’s ownership of Author Solutions. No-one wants to talk about how a supposedly legitimate publisher now owns the most successful author scamming organization on the planet.
“These guys are probably taking their cue from the New York Times, who won’t mention anything remotely critical about Author Solutions, but are happy to spend lots of time showing them in a positive light (like here, here, here, here, here, here, here, and here).”
In a publishing world where accurate information and balanced coverage is critical, and because our understanding of what publishing really is now, seems to be slipping steadily into a daily flow of aggregated press release verbatim and subtle marketing rather than any attempt to dip below surface level or analyse the facts or newsworthiness of what is presented.  I’m noticing an increasing trend of our publishing media like Publishers Weekly, The Bookseller and Digital Book World to recite press releases as news, rather than analyse and present this news. Whether that is a result of driving agendas, placating advertising sponsors or sheer laziness, it’s no longer good enough. I’ve no problem with recommendations based on experience, or being sold a product or service outside the margins of the piece I am reading, but I don’t want to be sold something as part of what I am actually reading. Journalism, within the mainstream media or within the publishing industry’s source of media, it should never become simply a conduit for a PR representative at a company. 
In part two, we will take a closer look at the filed suit against Author Solutions and Penguin and examine its chances of success and the potential implications.

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