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The Libel Suit? It is On

Individuals who are, or once were, associated with PublishAmerica are suing   the Preditor & Editors site for libel. Barbara Bauer is an agent who claims that P&E libeled her by calling her a scammer.   Victor E. Cretella, an attorney with PublishAmerica and a member of the Maryland Bar, is suing P&E for harming his reputation.

Barbara Bauer is on SFWA’s twenty worst agents list.    NielsonHayden also noted that Barbara Bauer is a “well known scam agent” and so did Miss Snark.   As everyone and their cousin on these sites note, calling someone a scam agent is defensible if it is the truth.   (I don’t think it’s entirely accurate to say that it is not libel if it is the truth. Truth is just an absolute defense to libel).

On the P&E website, it claims that Victor E Cretella infringed on a contract.   I am not sure how you can infringe on a contract.   You can breach a contract.   You can tortiously interfere with a contract but infringe?   In any event, this is a bit more interesting.   Apparently some had made complaints to the Maryland Bar Association regarding Cretella’s activities as PublishAmerica’s attorney.   Any complaint made to an ethics board is investigated in my state.   Is Cretella an unethical lawyer?   Essentially, that is what P&E is going to have to prove.

7/14/07: PublishAmerica’s lawyer Victor Cretella infringing contract? This is what we’ve had reported to P&E. According to our source, Vic has infringed upon or is breaching the terms of a contract in regards to the Arbitration clause.

So, is this how PA operates? They don’t honor their contracts or show any good faith even when it comes to negotiations and arbitration?

By the way, anyone who has had dealings with an attorney in Maryland who knows they are in violation of the law or their ethics code can file a complaint against the attorney using the information at http://www.courts.state.md.us/attygrievance/complaint.html. This site lists some of the sanctions applied to various attorneys. According to our sources, sounds like it’s time to report Vic for his behavior.

Thanks to Dooley for the tip.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

11 Comments

  1. jmc
    Feb 27, 2008 @ 12:05:12

    I’m perplexed, perhaps because I just haven’t read enough of the background information. How is filing a complaint with the AGC libelous? I don’t believe that complaints to the AGC are published (by the AGC). If the attorney is reprimanded, that info is published, but only after the investigation is complete. Unless the libel allegation is about P&E’s public statements, rather than the mention of the AGC?

  2. Jane
    Feb 27, 2008 @ 12:09:42

    I think that it is the assertion that his activities are somehow unlawful have harmed his business reputation. I haven’t seen the complaint so I am just guessing here.

  3. News for UF Writers « Urban Fantasy Land
    Feb 27, 2008 @ 12:55:43

    [...] courts, according to the news via Smart Bitches Who Love Trashy Novels. The unfairness here is, as Dear Author points out, there are at least three other well-known websites that said the same thing about Barbara Bauer, [...]

  4. Teresa Nielsen Hayden
    Feb 27, 2008 @ 13:27:46

    There are other sites that said the same about Barbara Bauer, and a great many other sites that have reproduced the Worst Agent List. I’m convinced all this legal activity is happening because the Worst Agent List has been so effective. A lot of people out there have a long-term habit of getting paid for doing nothing.

    In some cases, I think they’re also upset because they aren’t accustomed to thinking of themselves as dishonest. I don’t have a lot of sympathy. If you’ve been selling your services as an agent for a year or two, but not selling any books for your clients, you might be forgiven for telling yourself that your agency is just being slow to get started. When it’s been a decade or more, you don’t have much excuse.

  5. DS
    Feb 27, 2008 @ 14:49:57

    An attorney thinks that they can get damages because they were reported for an ethics violation– I assume that is why he was reported to the MD state bar. Oh, puhleeze. When pigs get their own air traffic controllers.

  6. Laura Elliott
    Feb 27, 2008 @ 16:01:25

    I thought in cases of libel, the person has to prove it was done with malicious intent? And it has to be untrue?

    Look out, my one course in Business Law is rearing its ugly head.

  7. Eirin
    Feb 29, 2008 @ 05:13:19

    I’m amazed that Bauer actually went so far as to sue!
    She’s been throwing threats around for years, but no one ever thought ten wild horses could drag her inside a courtroom and potential Full Discovery.
    If not for the fact that this could be very expensive for Dave no matter what, I’d be hugely entertained by Bauer having to prove she’s not a scammer.

  8. Me
    Mar 13, 2008 @ 12:00:27

    One of my friends is listed in the suit from Bauer. Also listed on her suit are Patrick Nielsen Hayden and his ( senior editors at Tor ), SFWA, and… Wikipedia.

  9. Kevin Nelson
    Jun 02, 2008 @ 07:38:12

    I’ve been following the Cretella suit fairly carefully. (It is separate from the Bauer suit.) David Kuzminski, editor of “Preditors and Editors,” is the defendant, but most of the allegedly defamatory statements were not made on “Preditors and Editors.” As far as the ethics complaint against Cretella is concerned, Kuzminski allegedly sent out a mass email to members of the Maryland State Bar Association’s ethics committee. One issue: apparently that is not the proper procedure for filing an ethics complaint. Cretella alleges that certain statements in the mass email were defamatory per se.

    In response to Laura Elliott’s question, Cretella has indeed alleged “actual malice.” Whether he will be able to back that up is, of course, another matter.

    Jane notes that “infringing on a contract” is a very odd phrase. I feel fairly sure that this is just a slip for “breaching a contract.”

    In the latest development in this lawsuit, the judge has dismissed two of the counts in Cretella’s complaint, but five counts remain. Kuzminski is still representing himself. I have to say that it looks to me as though he is seriously out of his depth, legally speaking. For one thing, he appears not to have participated in a discovery conference as required by rule 26(f) of the Federal Rules of Civil Procedure. I can understand why he wouldn’t want to sit down with Cretella. But from my non-lawyer’s perspective, rule 26(f) looks pretty unyielding.

    Since “Preditors and Editors” still has a donation button for a legal defense fund, I presume that Kuzminski is actively looking for a lawyer. I think he would greatly benefit from finding one, and soon.

  10. Anonymous observer
    Feb 09, 2009 @ 15:19:04

    I watched the trial. As bad as we may feel for DK for standing up for what he perceived were aggressive techniques to stop someone from saying something (the lady author), the law still allows someone to protect their professional reputation. To attack the lawyer who drafted a demand letter because it was his job was way out of hand. What DK did was try to gain leverage over an attorney by thinking he could hurt his reputation. Well, careful what you ask for, you just might get it.
    He should have made his donate button bigger, b/c he represented himself, and the other side needed only give him enough rope to hang himself, which he promptly did.
    The jury returned a verdict of over $230K for the Plaintiff. We will be talking about this case for some time, under the discussion “what NOT to do when a lawyer sues for you $200k”

  11. Stephen Woodward
    Dec 01, 2010 @ 10:16:12

    I am a published author and it has come to my attention that my publisher known as Publish America are not releasing royalties on sales made from distributors. This is not a solitary event as many authors are indeed witnessing or undergoing the same treatment. They claim it to be caused by non payment by distributors. (see below 1) At first they claim I have made NO sales and then a few days later they say that sales have been found and are indeed awaiting payment in March next year after my novel has been with them for sixteen months. (See below 2). I in the meantime have asked very nicely to be released from our contract between Publish America and myself and in return I am asked to buy my own novel to recompense or payback any costs incurred. (See below). I am now asking distributors to please desist in the online sales of my novel until the problem between Publish America and myself is resolved as I know all accumulated monies are NOT going to their proper destination.

    1 Publish America wrote.

    Please remember, books sold through retail stores or distributors such as
    Amazon.com, Barnes and Noble, or Ingram, are not paid for right away.
    Businesses such as these have up to three months or longer to send us
    payment. We send royalties on all purchases we have received payment for,
    this does not necessarily mean all books sold. If amazon.com recently
    replenished their stock, and you know of someone who has purchased one of
    these books, chances are, we have not been paid for the sale yet. As soon as
    we receive payment, it will be included on an upcoming royalty statement.
    Please note, per your contract, no payment is due to you until you have
    accumulated $49.00 in royalties.

    NB. I received this very same email six months ago.

    2
    Dear concerned:

    Thank you for your email. All statements have been sent, either via email or via regular USPS mail. According to our records, your statement was sent electronically to your current email address. An electronic statement indicates no sales for which PublishAmerica received payment during the royalty period.

    My answer to this is, NO I never received any electronic statement from them and I have bought and signed many books dating back to December 2009. A few days later, I got this after I started applying pressure to their diverse support divisions.

    A statement was sent indicating the sale of one book; however, per your contract, no payment was due to you until you accumulated $49.00 in royalties. There were additional sales for which PublishAmerica has not yet received payment; as you know, PublishAmerica had to initiate litigation to recover payment for many sales which were more than 90 days overdue. You will be paid for those copies sold in your next royalty statement.

    Firstly it's no sales and then it is some? I have asked for information about the fusion between Baker and Taylor and Publish America as they used the fusion as an excuse saying that Lightning source were not paying on time. They don't answer.

    When I want to cancel my contract, I get the following reply.

    Dear Stephen Woodward:

    We have received your request to terminate your book’s contract. As a general rule, publishers are not in favor of that. When a publisher agrees to contract a book, it is done with an expectation of entering into a profitable venture. PublishAmerica never charges any of its authors any money in return for producing and publishing their book and making it available to a worldwide audience. This is why we enter into contracts with a seven-year lifetime, which affords the book ample opportunity to turn a profit.

    If your request was granted, PublishAmerica would be denied, prematurely, any hope of recovering its expenses. This is why we would prefer to finish production of your book, keeping the contract in place until its expiration date.

    Therefore, if you were to persist on wishing to relinquish your status as a published author, we can only grant your request if you agree to a $299 compensation payment, which will help to offset some of our losses. If you want to proceed with termination, please go to: http://www.publishamerica.net/product119600.html. Be sure to enter your book’s title in the “order comments” field. If not, we will both understand and applaud your decision. As said, we prefer to keep the book under contract.

    They want to keep it under contract because it is generating monies.

    I have had sales from Bristol, South Africa and many friends around the globe. I have sold more than 200 copies on the internet, excluding those sold in more than 100 distributors. I have seen four physical examples in local stores where I am yet they deny payment. My internet entries have risen sharply. I have signed many copies and they claim after 16 months that I have sold one (discounted) copy.

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