Harlequin Lawsuit's Happy Ending
Sitting in front of me is the settlement check I received from a class action lawsuit against Harlequin. Because this Harlequin lawsuit was settled out of court, there was no winner legally. That’s not how it feels. Not at all. Let me tell you, the authors won.
Readers rarely care about the machinations and travails behind the scenes of publishing. No reason they should. Their relationship is with the book – at least that’s the way I feel when I’m reading. I don’t want to know about the author. I want to know about the characters.
So I absolutely understand if you don’t read this. No hard feelings.
On the other hand, this has been a part of my life for more than five years.
I can hardly believe the Harlequin lawsuit is over. Heck, I can hardly believe it started.
In the Beginning
In the spring of 2011 a group of authors, shepherded by Ginger Chambers and Barbara McMahon and with me part of the flock, hired Elaine English for a legal assessment of clauses governing ebook rights in various Harlequin contracts. Under contracts that spanned several years, ebook rights were lumped under “All Other Rights.” These contracts were written and signed before ebooks became truly commercially viable, but because of the length of Harlequin contracts they were still in force. The “All Other Rights” clause said Harlequin and the author split whatever monies came in from the exercise of these rights 50-50.
However, when books under those contracts eventually were digitized, it became quite clear the authors were getting way, way, way less than 50%.
What Harlequin did was say that our contracts were signed with Harlequin Switzerland, but the ebooks were published by Harlequin Toronto, and golly, gee, Harlequin Switzerland sold the rights to Harlequin Toronto for 6% of cover price. So Harlequin Toronto sent Switzerland 6%, Switzerland kept 3%, the author received 3% … and Harlequin Toronto kept all the rest. (BTW, this agreement between these Harlequins was created well after the contracts were signed. Authors were never informed about it.)
That original group of authors disbanded, but I formed a second one (that’s another story that I won’t bore you with unless we’re in a bar somewhere some night, though the group did some definite good for many Harlequin authors.) An offshoot of that second ad hoc group of authors, led by Day Leclaire, pooled our money and hired lawyer David Wolf of David Law PLC to talk to Harlequin about living up to its contract.
A word about Harlequin contracts – they are essentially not negotiable, with extremely limited exceptions. You might be stunned at the major authors Harlequin could have kept if it had been willing to negotiate a bit. It chose instead to let those authors walk. You either accept the contract as Harlequin writes it or you don’t publish with Harlequin. (The latter became my choice around 2008.) They could do this because of the structure and business climate of publishing at that time.
I had a few excellent individual editors among the 34 I had for 25 books (yes, you read that right … editor turnover might lead some to suspect Harlequin didn’t treat many of its editors well, either), but my overall experience with Harlequin was … let’s say “not good.” By the end of 19 years with them I was disheartened, depressed, and done. I didn’t think I would write for publication ever again. I didn’t even want to try.
By 2011, however, I was back on track. I was publishing backlist books as an indie, I was writing again and publishing those originals as an indie. And, thanks to Harlequin’s machinations, I got a good jolt of indignation to return me to my feisty self. My reaction to what Harlequin was doing was summed up after reading one of their missives to authors that summer when I said aloud, “How stupid do you think I am?”
The answer turned out to be a whole lot stupider than I am – or than most authors are.
But it took quite a while to make that point to Harlequin – I’m not sure they get it even now. Certainly in late 2011, they thought they could make David Wolf and these pesky authors go away by refusing to talk to us.
We didn’t go away.
From Talking to Suing
And David Wolf, bless his heart, took the case on as a potential class action lawsuit, which he and Michael Boni and John Sindoni of Boni & Zack, LLC, filed in July 2012. The lawsuit is Keiler v. Harlequin. The three named plaintiffs on whose behalf the suit was filed are authors Barbara Keiler (who writes as Judith Arnold), Linda Barrett, and Gay Wilson (who publishes as Gayle Wilson.)
Harlequin’s reaction? “This is the first we’ve heard of it.” That is what’s known in writing as A Big Fat Lie.
Remember, David Wolf had been talking to them for the better part of a year at that point.
The Harlequin lawsuit had plenty of twists and turns. It was completely dismissed at one point in 2013. The lawyers decided to appeal. Mind you, they were Not Paid a Cent all this time. Once they started down the class action road it was all on contingency. (Yes, they’ve been paid out of the settlement now – getting nowhere near what they could have earned through ordinary billable hours for the years of work they put in on this.)
The appeals court upheld the most important element of the case in spring 2014 … and the next day, the sale of Harlequin to Harper Collins was announced. How would that affect things? We had no idea.
On top of that, the appeals court sent the case back to the same judge. Who hadn’t, to my unlegal eye, seemed to grasp much of anything about the issues. So how could we hope to fare better than the first time round with him?
Then that judge died unexpectedly as the result of a fall. I am not kidding you.
A Turning Point
The new judge took a different approach. In October 2014, the 1,200 authors affected by the contract clause were certified as a class. We were, truly, a class action lawsuit. There was champagne that day.
The work wasn’t over. There was discovery. There were depositions. Harlequin subpoenaed at least two authors groups, demanding from one all communication among its members. So much for privacy. It was an onerous effort for a volunteer-run organization to gather all the information and, as expected, it got Harlequin nowhere.
If I were writing this in a novel, I’d let the reader know that the big corporation had done it just because it could – to punish those upstart authors any way possible.
Finally, in June 2016, a settlement of the Harlequin lawsuit was announced. While maintaining it never did anything wrong, Harlequin agreed to pay $4.1 million.
The settlement checks from the Harlequin lawsuit began arriving in authors’ mailboxes Monday, Sept. 12.
The checks are nice. Very nice.
But let me tell you when the authors really won. It was back in July 2011.
I told a few fellow authors that I was going to write a letter to Harlequin through Elaine English to let them know that I was not as stupid as they thought I was. Several said, “We want in on that, too, and we’ll share the expense.” One author, Susan Gable, said she’d start an online group for us.
I said, “We don’t need an online group. It will only be a handful of us.”
She was right. I was wrong. We had a hundred by the end of the week. I remember tears coming into my eyes when we topped 300. And more came.
Most vividly, I remember tears from some of the communications from these authors. They were risking their livelihoods, but had to join the group because what Harlequin was doing was simply wrong. They had written for Harlequin for 30 years and felt betrayed and would never write for them again. They had just achieved their dream of selling their first book to Harlequin and they were scared, but this was too important to ignore. They were from all over the United States and Canada, from the U.K., Australia, and New Zealand. They couldn’t afford the $35 each of us put in to start, but would send me $5 a month until they had paid their share. They wrote a check for well over their share to help cover those who struggled to pay.
And the subgroup that first hired David Wolf became warriors. They collected, organized, and dug through contracts and correspondence. They taught themselves legal concepts. They searched corporate reports. They asked brilliant questions. They did what needed to be done.
You will notice that those 300+ were about a quarter of the class. The remaining 900 owe much gratitude to David, Michael and John, to Day, Barbara, Linda, and Gay. They also owe gratitude to those 300+.
And here’s something those 300+ will have forever – the knowledge that they were part of authors pulling together to stand up and say, This Isn’t Right.
There is no legal precedent set by this case. But there is that precedent of pulling together, and it’s a powerful one. I hope Harlequin and all publishers take notice so it is not necessary again. Even more, I hope authors take notice, in case it is.
Okay, and the check’s not bad, either.
P.S. The Comments
I am so appreciative of the wonderful comments so many folks have shared. From readers, from authors in the class, and authors not in the class. I’ve read each of them and I hope folks who come here to read the blog will also read them.