On June 11 of this year, a course-action lawsuit was submitted against PublishAmerica by a Baltimore, MD lawyer, in collaboration with high-profile litigator’s Hagens Berman Sobol Shapiro. Responses and counter-responses ensued. In August with arguments by counsel-A hearing was held. September 4 On, PA’s motion to dismiss was granted by Judge Marvin J. Garbis–without prejudice, of the month with the plaintiffs given the choice of filing an amended problem by the end. Wednesday This past, however, PA authors who’d sought to become listed on the suit received a letter from Hagens Berman indicating that they did not intend to re-file. In e-mailing and talking to many of you what you desired was out of your agreement.
That is also what we had hoped for when we filed this course action. We thought we’d a good shot at this when we filed our first issue. We claimed that Publish America’s representations about itself as a traditional publisher misled writers and led them to give away the publication rights to their books and that this violated the Maryland Consumer Protection Act.
But the court concluded that the statute has a narrower range and that the complaints we asserted against Publish America aren’t really consumer complaints but similar to business complaints. For long-time watchers of the PA saga, the “it’s not a consumer matter, but a business matter” response may appear familiar. It is the reason cited by the Maryland Attorney General’s Office for not taking action on authors’ problems (of which, we’ve been told by various resources, the AG’s office has received a goodly number). For the Maryland AG, it’s straightforward: the author-PA relationship isn’t between a consumer and a business (the region the AG holders) but between a business and a business.
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That’s not Judge Garbis’s position, however. The nagging problem, in his opinion, is that the initial complaint simply doesn’t provide enough facts to determine whether it’s a consumer matter or not. For present purposes, it suffices to convey that the Maryland Consumer Protection Act, Md. Code Ann., Com. Law § 13-101 et seq.
The MCPA defines the term “consumer” to add “a genuine or prospective purchaser.” Id. The term “consumer services” is thought as “services that are mainly for personal, household, family, or agricultural purposes.” Id. § 13-101(d). The Complaint does not clearly, if at all, enable the Court to look for the particular factual allegations upon which Plaintiffs base the contention that the statements in Count Two would be covered by the MCPA. Each Plaintiff simply alleges his/her name, place of home which he/she contracted with PA to publish a book.
Plaintiffs do not allege facts associated with their pertinent background and cannot – on the face of the pleading – be assumed to be seeking publication “primarily for personal,” as specific from commercial, purposes. Moreover, a particular good or service cannot be said, in the absence of a particular context, to be a consumer good or service.
For example, a can of beans bought for home consumption will be a consumer good. However, the same can of beans bought by the owner of a restaurant for sale to customers might not be. Similarly, a residence cleaning service for a resident homeowner will be a consumer service however the same service for the landlord owner of the rented house might not be.
Also, PA contends that at least a few of the alleged “consumer services” are services that cannot plausibly be looked at mainly for personal purposes, e.g., services associated with the sales, rather than literary aspects, of a written book. The Court is not now addressing the question of whether any such services necessarily are non-consumer services. However, in an Amended Complaint, Plaintiffs should allege facts sufficient to present a plausible declare that the services in issue are consumer services. Judge Garbis, quite simply, isn’t confirming PA’s argument that the author-PA relationship is not just a consumer matter–rather, he’s saying that the plaintiffs haven’t sufficiently demonstrated that it’s.
He makes a similar determination with regard to the plaintiffs’ state of unjust enrichment, breach of contract, and fraud. Though the PA will likely dispute this, the dismissal doesn’t vindicate their business procedures or endorse their counter-claims. Rather, it leaves the hinged door open for the plaintiffs to return with stronger arguments to bolster their case. Obviously I can’t reach into the minds of the lawyers to see why they decided not to do this.
