Legal Decision on “Class Action” Status for ASI Lawsuit

Legal decision imminent?  A number of writers have contacted me concerning issues with Author Solutions, Inc., and one or more of this company’s dozen or so imprints (Xlibris, iUniverse, Author House, et al.)  Shortly, a decision will be forthcoming regarding whether or not class action status will be allowed for a pending lawsuit. What in my opinion should be an amazingly simple decision, the glacial pace at which this legal process has moved demonstrates just how difficult it is to effectively halt what 170,000 writers (that is the total cited, not a number I’m making up for effect) have felt are deceptive practices.

The thrust of the complaint’s wording, as I interpreted it, is that ASI is little more than a telemarketing operation that sells services to authors. Many of those services–specifically related to book marketing and distribution–are deceptively presented with limited to no potential for fulfillment. My opinion, which is solely personal with no legal foundation whatsoever, is that the issue will, as always, get down to what constitutes “reasonable expectations.” My personal perception is that authors, via ASI publicity, expect results of some sort. And it’s the “some sort” that gives attorneys a leash the width of the Grand Canyon. It’s been contended by judges previously that a writer should have enough common sense to understand the terms of the contract that he or she signed with whomever.  As such, authors should be aware of what can be a likely end result.

I disagree with this argument, however legally sound it might be, because writer after writer has told me that promises were made which led them to believe their books would be placed in B&Ns around the country. In reality, B&N had (and still has) established policies for not accepting self-published works (or on a difficulty curve on par with getting a bill through Congress). But here’s the legal rub as I see it: A self-published work occasionally makes it onto a B&N shelf. About five years ago, an elderly author in a writers group I supported had his self-published novel in the very B&N where our group met. The rumor was that the assistant manager who accepted this book almost lost his job for helping this older man fulfill his dream of seeing his book on the shelf of a major retailer.  Hence, it can be effectively argued that ASI has had its self-published books appear in a B&N (even if it’s just one store, and ASI had nothing to do with it).

To be accurate, the legal claim of “buyer beware” holding sway was issued by a judge adjudicating a suit brought against Publish America. I see little difference between ASI and PA (the latter is now called Star Publishing), as both firms have had complaints totaling in the six figures, and PA may well hold the inauspicious lead. When a firm receives this many complaints, does it take a whole lot of brains to figure out that something is suspect regarding that company’s sales and marketing tactics? Yes, writers should know better. But most of us who write are optimistic about the prospects for what we create, albeit often horribly so. I’ve made stupid mistakes believing this or that person could help me market a book, even once hiring an submissions editor (don’t ask) at a ridiculous fee solely because I assumed this person could get my book signed by a major house. Dumb, dumber, dumbest, on my part.

The folks who paid what in many people’s opinions were ridiculously exorbitant fees to ASI’s imprints were led to believe they were to receive specific marketing help–that wasn’t really marketing at all. The best example I can use is hyping, however subtly, that a book listed by Ingram and Baker & Taylor is now “on its way.” The unwary author immediately believes this to be an immediate road to success, unaware that both of these entities do absolutely zero marketing and that their 70,000-plus titles listed at any given time are all distributed via pre-sales only. Neither Ingram nor Baker & Taylor–on its own–sells the first book. If anyone wants to see the way what I’m saying works (or, more appropriately, doesn’t), stick a book on Amazon and don’t tell a soul it’s on the site, and then see how many copies sell–as in this regard the dynamic would be identical.

I’ve devoted this much space to the defendants’ legal potential for class action status in their suit against ASI because so many hardworking people have gone into debt harboring hope for outlandish claims being fulfilled. Claims that in my opinion are flagrant lies. Claims that the companies know are absurd and right up there with the chance for success equaling winning the lottery. The publishing business has always been a complex beast, with Hydralike heads and Medusalike eyes. And these are the good guys.

We can only hope that “class action status” will be granted, and perhaps ASI’s executives will come across in the media right up there with those who testified on behalf of Publishers Clearing House and Reader’s Digest. And by doing so, the suit will expose ASI for what in actuality their imprints have provided for authors who paid thousands of dollars for marketing packages. And if I were on the prosecution’s team, I’d lead with charging $4,000 for a $425 Kirkus Review and an essentially worthless ad in a trade journal from the perspective of generating sales or having the book signed by a major house. For me, this in and of itself clearly represents the width and breadth of the deceit.

[Class action status was denied in 2016, the judge stating that the suit was filed in the wrong state.  I know, go figure.]

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