exhibit as3.documentcloud.org/documents/1344709/ec-declarations-1.pdfellora’s cave. 24. attached...

EXHIBIT A

Case: 5:14-cv-02331-JRA Doc #: 7-1 Filed: 10/21/14 1 of 32. PageID #: 81

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

ELLORA’S CAVE PUBLISHING, INC. and JASMINE-JADE ENTERPRISES, LLC

Plaintiffs,

v. DEAR AUTHOR MEDIA NETWORK, LLC and JENNIFER GERRISH-LAMPE

Defendants.

Case No: 5:14-cv-02331

DECLARATION OF JENNIFER GERRISH-LAMPE IN SUPPORT OF

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

I, Jennifer S. Gerrish-Lampe, having personal knowledge of the matters set forth

herein and being competent to testify about them if called to do so at trial, state as follows:

1. I co-founded Dear Author in April 2006. In 2010, Dear Author Media Network LLC

was formed and is in good standing with the State of Iowa where it is incorporated. I

am the sole principal of Dear Author Media Network LLC.

2. Dear Author Media Network LLC does business as a website or “blog” known

simply as “Dear Author” focusing on the subjects of romance books, digital

technology, and publishing news.

3. Since its inception, Dear Author has published over 11,000 posts and over 2,000 of

them have been industry news pieces. The industry news covered at Dear Author

includes, but is not limited to, the different paths of publishing, author royalty rates,

issues of literary critique and financially troubled publishers.

DocuSign Envelope ID: 07B51158-36E9-4BEE-AFBE-1B2BC56BC50CCase: 5:14-cv-02331-JRA Doc #: 7-1 Filed: 10/21/14 2 of 32. PageID #: 82

https://trust.docusign.com

4. Dear Author has reported on issues at publishing houses such as the now defunct

Triskelion Publishing which went bankrupt in 2007, author complaints at Wild Rose

Publishing, author unhappiness at Samhain Publishing, bankruptcy filing of Mardi

Gras Publishing, bankruptcy of Silk Vault, author complaints of Aspen Mountain

Press, the financial problems at the now defunct Borders and many others.

5. In short, Dear Author has been reporting on the financial status of publishers from

the very early stages of its existence.

6. Much of Dear Author’s news is gathered from posts around the Internet but some

of the news pieces are provided by tipsters and other confidential sources.

7. Dear Author is known for its staunch support of anonymous and pseudonymous

protection to allow individuals who are fearful of reprisal to speak freely.

8. Dear Author is known for its willingness to keep confidential information.

9. A number of authors and editors that previously or then-currently worked with

Ellora’s Cave reached out to me, providing copies of emails, electronic

correspondence, and memos that were circulated from executives of Ellora’s Cave.

10. A number of authors and editors also reached out to me to explain that they were

still owed money for contracted work or royalties that had not been paid.

11. The injunction and lawsuit filed against me personally and against the Dear Author

Media Network LLC is for the precise purpose of chilling free speech, shutting down

discussion over the Plaintiff’s troubled business status, and exposing the identities of

those who have the temerity to assert their grievances.

12. In the petition, the Plaintiff attempts to mislead the court by restating, inaccurately,

the alleged defamatory statements.



13. Patty Marks, CEO, of Plaintiff, perjures herself repeatedly in the affidavit filed in

support of the motion for temporary injunction.

14. The petition and affidavit erroneously states that the affiant stated “That employees

of Ellora’s are going unpaid when in fact they are being paid.”

15. The accurate statements of the blog post include “Despite authors, editors, and

cover artists going unpaid, Engler is in the process of launching at least one, if not

three, different businesses.” And “It rankles to see Ms. Engler post on her Facebook

page of high end shopping sprees while individuals who make money for her

company go without.” There is no reference to any employees of the Defendant who

may or may not be paid. Artists, editors, and authors are independent contractors.

At the time of the September 15, 2014 blog post, artists, editors, and some authors

had not been paid.

16. The petition and affidavit erroneously states that the affiant stated “That the contract

authors (Authors) have not received royalty payments in over six months when in

fact they are being paid.” The term “Authors” refers to all contracted authors.

17. The accurate statements of the blog post include “There is a set of authors who have

not received royalty payments in over six months.”

18. I investigated this issue by reaching out to a number of authors who write for

Ellora’s Cave, and confirmed that there are quite a few authors who have not

received royalty checks dating back months.

19. Statements of editors, cover artists, and authors regarding non-payment will be filed

under separate cover. Several of those independent contractors received undated

checks in October, at least two weeks after the initial blog post, and were backdated

to August 31, 2014.



20. I investigated this issue by reaching out to freelance editors that previously worked

for Ellora’s Cave, and they confirmed late payment for contracted work, undated or

back-dated checks, mailed in envelopes that were not postmarked.

21. The petition and affidavit erroneously states that the affiant stated “That Ellora’s is

liquidating assets when in fact it is not.”

22. Plaintiff advertised a “Huge Warehouse Sale” wherein they sold decorations, office

supplies, art props, office equipment, and more.

23. I have received confirmation for other authors and editors that they were aware of

the warehouse sale, in addition to other items being posted for sale on Ebay by

Ellora’s Cave.

24. Attached as Exhibit 1 is a true and correct copy of the advertisement for the

warehouse sale, noting the address of the sale is the address of Ellora’s Cave

Publishing.

25. The petition and affidavit erroneously states that the affiant stated “That the author

portal shut down was to prevent Author’s from checking on their royalties when in

fact it was not.”

26. The accurate statements of the blog post include “The author portal has been shut

down where a select few authors could check their royalties.”

27. On September 10, 2014, Raelene Gorlinksy, Publisher of the Plaintiff sent out the

following email: Dear Author Portal authors, To my great regret, EC no longer has

the staff to maintain or use the Author Portal system. No new files will be uploaded.

You will receive new ebook files and contracts via email, as was done previously. I

do not know how long the AP system will stay online (it requires monthly support

payment to the software company). Therefore, I strongly urge you to download all



your files from your Author Portal account before end of the month. Please let me

know if you have any questions. (Please don't ask me about royalty statements--I

have no information, I know probably less than you do now. I'm instructed to just

tell authors to email [email protected].)

28. I was provided with a copy of a message from Ralene Gorlinsky to the members of

the Author’s Portal.

29. Attached hereto as Exhibit 2 is a true and correct copy of this message. The identity

of the individual who forwarded the message to me has been redacted.

30. I have spoken other authors who also received this message.

31. The Plaintiff knowingly and repeatedly made these false assertions about the affiant’s

statements in order to abuse the judicial process and use the process in order to

intimidate the affiant and any other critic into silence.

32. The Plaintiff knowingly and falsely place the blame for its financial difficulties on the

September 15, 2014, blog post.

33. In August, Plaintiff severed contracts with its freelance editors and cover artists.

“For that reason, for the foreseeable future almost all manuscripts will be edited by

in-house editors, and covers designed by in-house artists.” Patty Marks, CEO of the

Plaintiff admitted that there is managing editor, three in-house editors and two in-

house artists. The managing editor has since resigned.

34. In investigating this, I was provided with a copy of that email by multiple editors that

were with Ellora’s Cave, and all confirmed that they were laid off.

35. Attached hereto as Exhibit 3 is a true and correct copy of that email, the identity of

the individual who forwarded it to me has been redacted.



36. In an interview with Publishers Weekly, Patty Marks, CEO of the Plaintiff admitted

that Amazon is their biggest retail account and that sales there are down 75%.

37. Attached hereto as Exhibit 4 is a true and correct copy of that article.

38. In an email to authors, Patty Marks, CEO of the Plaintiff admitted that there are no

damages as a result of the September 15, 2014, blog post because “the drastic drop

in sales has resulted in large net short term variable production losses and slow and

often negative return on investment for EC on almost every new book we publish,

with the exception of a handful of the highest sellers.”

39. I was provided a copy of that email from Ellora’s Cave CEO, Patty Marks to the

authors, by one of the authors who directly received the email. See Exhibit 3.

40. I was contacted by a number of other authors who also received that email.

41. Plaintiff knows that its financial instability is the result of its own business decisions

and not the single blog post from Dear Author.

42. Tina Engler, co-founder of Plaintiff, has stated publicly that problems stem from

authors rather than the blog post “What motive would authors have to spread lies?

Many actually, but the most prevalent reason we’re seeing (and screenshotting) is

they want their rights back to an edited book so they can self-pub it & not have to

share the profit with the house that published them. This is also the reason those

same authors are telling ppl not to buy their books… Bc if their sales fall below a

certain number of copies sold, they get the rights to their books back free of charge.

Again, they can then self-pub them.” And “The initial gossip was started by authors

who wanted their rights back to EDITED & CONTRACTED books for FREE.

Presumably, given the current publishing climate, this is so they could turn around

and self-publish them without EC getting any cut in profit. Never mind that we



contracted the books (work/money) and edited the books (more work/money) and

publicized the books (yet more work/money) and took a chance on their unknown

names (money.) The sense of entitlement being displayed is as immoral as it is

illegal…Given the illegalities of it, some authors started spreading the rumor that EC

doesn't pay its authors and pleaded with the public to not buy their titles since they

weren't getting paid anyway. Why would they do this when they were/are getting

paid? Because the only way to get their rights back both free and legally is to sell

under a certain number of copies within a specific timespan. Never mind what those

rumors would do to their fellow EC authors—they are apparently only collateral

damage in the war of self-entitlement.”

43. Tina Engler has also threatened others with lawsuits. “It should be noted that EC

has never—not once in 14 years—sued an author. Can I say that record will remain

intact, given the cyber-bully smear campaign we’re enduring? No. It’s difficult to say

what position we’ll be forced into.”

44. Attached as Exhibit 5 is a true and correct copy of Engler’s blog post.

45. Plaintiffs claim that the assertion that “Engler recently purchased a home in the West

Hollywood Hills when in fact she did not” is false and defamatory. However, on Ms.

Engler’s own Facebook page, she made multiple mentions of moving to West

Hollywood, stating “today I found out I got the house I want so I’ll be saying buh-

bye to Venice Beach & hello there to West Hollywood!!”

46. Attached hereto as Exhibit 6 is a true and correct of Ms. Engler’s Facebook post.

47. At the time that I wrote the article, I harbored no doubts as to the accuracy and

veracity of the article.



48. At this time, after having spoke to even more authors, editors, and cover artists, I

believe that the financial condition of Ellora’s Cave may be even worse than

previously articulated.

49. With the benefit of additional research since originally publishing my article, I still

believe in the truth of the statements contained therein.

50. I engaged in fact checking and research to ensure that my publication was truthful at

the time it was published.

51. If the injunction were to be imposed and commenters identities to be revealed as

well as the sources of my article, Dear Author would be shut down, as it cannot

operate without being able to write about publishing topics as it has in the past or

maintain confidentiality in your sources.

52. Dear Author has revenues in excess of $75,000.

53. If the injunctive relief requested is granted, it will force Dear Author to shut down

completely. I cannot, in good conscience, maintain a blog about this subject without

being free to report on all publishing houses.

54. Therefore, the cost of compliance with the injunctive relief is in excess of $75,000.

55. If I am forced to reveal all of my sources, as requested, under current conditions, this

would independently require me to shut down, as sources would no longer trust my

publication. This, independently, makes the cost of compliance greater than $75,000.

56. To date, between October 1, 2014, the date of the filing of the state court petition

and the declaration on October 21, 2014, the undiscounted attorney’s fees incurred

are approximately $30,000.



I declare under penalty of perjury that the foregoing statements are true and correct

to the best of my knowledge.

Executed this __________________, in West Des Moines, Iowa.

______________________ Jennifer Gerrish-Lampe

DocuSign Envelope ID: 07B51158-36E9-4BEE-AFBE-1B2BC56BC50C



EXHIBIT 1


EXHIBIT 2


EXHIBIT 3


EXHIBIT 4


10/21/14, 12:18 PMEllora’s Cave CEO Confirms Amazon Sales Drop

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Ellora’s Cave CEO Confirms Amazon Sales DropBy Calvin Reid | Aug 25, 2014Ellora’s Cave CEO Patty Marks confirmed the house is downsizing in the wake of what she described as“drastic’ and unexplained declines in its e-book sales via Amazon. Marks confirmed the layoffs of freelanceeditors, and said the house continues to have discussion with Amazon to find the cause of the sales dropoff.

Marks sent a letter to Ellora’s Cave authors about the major sales dip, and the note was then re-postedonline. Marks said Ellora's Cave sales via Amazon have dropped by as much as 75%. "We’re talking toAmazon and trying to figure out why this is happening,” Marks explained, noting that Amazon is the biggestsales channel for the digital-first erotic-romance publisher.

According to Marks, the issue is likely related to a change inAmazon’s search algorithm. Many of Ellora’s Cave’s bestsellingauthors and titles simply don’t show up in the Amazon search engineanymore. She pointed to one of the house's most popular authors,Laurann Dohner, whose books are New York Times bestellers, notingthat a search for her titles on Amazon initially retrieves only freegiveaways.

Marks also wanted to emphasize that Ellora’s Cave is paying allroyalties on time and, contrary to some rumors, is not consideringbankruptcy. Asked if Ellora's Cave, which does a limited number ofPOD titles, might consider more print releases in the future, Markssaid print sales have never been very significant for the publisher.“We’re looking at print, but we don’t want to invest in big print runs,”she explained.

Marks said Ellora’s Cave e-book sales began spiking upwards in2012. She said she “expected sales slack off eventually," and thatshe put money aside, while adding new customers, to limit lossesfrom the dropoff. "Sales have dropped before, but not like this," Marks


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elaborated. "It’s been a drain.”


EXHIBIT 5


10/21/14, 12:19 PMFor the Silenced Victims... | Jaid Black "The Queen of Steam"

Page 1 of 8http://jaidblack.com/entries/general/for-the-silenced-victims-

For the Silenced Victims...October 4, 2014

I keep receiving the same emails and PMs every single day, just fromdifferent people. What every message has in common is this: anyonewho shows even minimal public support for EC is getting viciouslycyber-bullied into terrified silence.

Never in my lifetime have I seensuch a phenomenon. Until now I'donly read about it in history booksconcerning the Salem Witch Trialsand the communist red-hunts ofthe McCarthy era. Some bookreview sites (blogs basically) havegone so far as to blacklist ECtitles. Ironically enough theystarted this campaign during"Banned Books Week" and areencouraging readers to not buy anybook published by EC or the booksof authors supporting EC. Theyclaim to be doing this in the nameof freedom of speech, yetconversely they stifle dissenting

opinions with vicious attacks en masse.

I literally can't count how many screenshots I have taken—and that'sjust me!—of authors and readers being cyber-bullied into silence. Thevery first person to take a massive, public hit was #1 NYT Bestsellingauthor Jamie McGuire. Mind you, Ms. McGuire does not write for EC,has no connection to EC, and our paths have never crossed online oroffline. She made one supportive tweet and was so viciously attackedwith McCarthyist "you're a traitor" tweets that she later removed it.

For BenFor Ben

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http://jaidblack.com/my-artwork



To Ms. McGuire's credit, however, she didn't allow herself to be silencedfor long.

Jamie McGuire isonly one of many. Iapplaud her forhaving the strengthof character to notshut up and sit downat the back of thebus... and I'm gladher following is toostrong and loyal tobe swayed into notbuying her books. For many EC authors, though, their entirelivelihoods are at stake. They're literally damned if they do anddamned if they don't.

So why is this happening to EC at all? I'm not sure there is one solidanswer, but there is a definite and noticeable trend:

The initial gossip was started by authors who wanted their rights backto EDITED & CONTRACTED books for FREE. Presumably, given thecurrent publishing climate, this is so they could turn around and self-publish them without EC getting any cut in profit. Never mind that wecontracted the books (work/money) and edited the books (morework/money) and publicized the books (yet more work/money) and tooka chance on their unknown names (money.) The sense of entitlementbeing displayed is as immoral as it is illegal.

Given the illegalities of it, some authors started spreading the rumorthat EC doesn't pay its authors and pleaded with the public to not buytheir titles since they weren't getting paid anyway. Why would theydo this when they were/are getting paid? Because the only way to gettheir rights back both free and legally is to sell under a certainnumber of copies within a specific timespan. Never mind what thoserumors would do to their fellow EC authors—they are apparently onlycollateral damage in the war of self-entitlement.

Let's take a look at this September 25th post from author Cat Grant,wherein she garners sympathy for herself by claiming she isn't gettingpaid her royalties:

RomantiCon®RomantiCon®

JB ProductionsJB Productions

All Hail The QueenAll Hail The Queen

Missing Plug-in

click twice to see large video


http://jaidblack.com/files/images/Screen-Shot-2014-09-28-at-5.30.35-PM.jpg

http://ellorascave.com/

http://ecromanticon.com/

http://jaidblackproductions.com/



But then two days later, on September 27th, she posts completelydifferent information on yet another blog:

So she's not getting paid, but she's getting paid? The truth willdefinitely catch up with her, so Ms. Grant is now throwing in the redherring of "but God only knows if they're accurate." She previouslystated on her own blog:

We warned our authors that sales at Amazon are down, she admitsher self-pubbed books at Amazon are down, but then...




http://jaidblack.com/files/images/Screen-Shot-2014-10-04-at-12.41.24-AM.jpg



Basically we're being accused of cheating her because her sales aredown at EC, but her sales directly through Amazon/Kindle are alsodown per two of her own posts and she's not accusing them ofanything. So why us? Oh right...

The sad and sick part to all her online reindeer games is that NOTONE SINGLE PERSON HAS CALLED HER OUT ON THEM. On thecontrary, other authors are coming to her defense and claiming thesame sorts of things as this author.

Paradoxically, while some authors (mind you this is maybe 15-20 outof 800+ playing this game) are saying they too aren't getting paid,they are also publicly claiming they are afraid of being sued by us forspeaking their twisted "truths." Here's a groundless tweet fromanother author:



http://jaidblack.com/files/images/IMG_0923.jpg



It should be noted that EC has never—not once in 14 years—sued anauthor. Can I say that record will remain intact, given the cyber-bullysmear campaign we're enduring? No. It's difficult to say what positionwe'll be forced into.

What I can say with all certainty is I'm not going to be a victim offemale on female misogyny, their male recruits, and the resultingchildish harassment tactics being leveled at me. When I suggestedthat spectators take the time to gather facts before jumping toconclusions, my extremely reasonable request was followed up withtweets like this:


http://jaidblack.com/files/images/Screen-Shot-2014-09-27-at-11.17.02-AM.jpg



She also sent a photo of her giving me the finger, but you get thepoint without me posting that. And then came this...

One author in particular, an author I've never published, met, or evenheard of until the cyber-bullying smear campaign began, decided itwould be fun to make the attacks even more personal:

Not only is she throwing thinly veiled jabs at my hair and multi-cultural / multi-racial family (re: cultural appropriation,) but she'sattempting to trivialize the civil rights work I've been doing since myearly twenties. I've marched in countless protests against police




http://jaidblack.com/files/images/IMG_1025.jpg



brutality in the inner city, the continued disenfranchisement ofpoverty-stricken women and their children who direly need help(welfare,) the right to choose (though I've never had an abortion,)and was the media spokesperson for Tampa NOW (NationalOrganization for Women.) To this day, a photo of me protesting cutsto welfare remains on the banner of "herstory" on Florida NOW'swebsite. I'm the curly-haired one on the upper-left:

Oh and FYI: Courtney Milan called me "Tina Englero" because I spelledher name "Milano" when referencing earlier posts by her. The veryself-important author apparently thinks everyone knows—or cares—whoshe is and that I purposely misspelled her name to be disrespectful.(I'm not quite certain how "Milano" is disrespectful, but whatever.)Interestingly, MilaN has been tweeting and posting all over theinternet about me and she has (a) never met me, (b) isn't one of myauthors, and (c) knows literally nothing about me other than whatevergossip she's heard.

The thing is, Milan, you and your bizarro followers neither frightennor intimidate me with all the misogynist, bigoted ramblings. Becauseof my civil rights work, the work you attempted to trivialize anddenigrate, my skin is as thick as my ass is fat. I've had more deaththreats than a few because of my activism so you're as scary to meas a shit under my shoe. You dared me to sue you. Why would I?You're entitled to your opinion, however abominable it might be.

Anyway, enough of her and back to the important heart of thematter:

Right now EC's loyal authors are afraid to speak up because they'veseen what happens to everyone who does. That will pass soon enough.Eventually they will be pushed past the breaking point by thoseattempting to stifle their freedom of speech and their right to earnan honest living by the MCCarthyist tactics being thrown at them.Until they are prepared to show themselves, I'm here to give them a


http://www.flnow.org/



voice... and I, for one, will not be harassed into silence.

Jaid / Tina

| General

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© Jaid Black 2000-2014


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EXHIBIT 6


EXHIBIT B


IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO

CIVIL DIVISION


Plaintiffs,


Defendants.

Case No: CV-2014-09-4421

DECLARATION OF BRIANA LAMBERT IN SUPPORT OF DEFENDANTS’

OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY INJUNCTION

I, Briana Lambert, having personal knowledge of the matters set forth herein and being competent to testify about them if called to do so at trial, state as follows:

1. I began working with Ellora’s Cave in August 2002 as a volunteer proofreader. Beginning February 2003, I became a paid contract employee. In 2007, I became an author with Ellora’s Cave as well.

2. As an editor, I was typically paid for my work every two weeks. 3. However, beginning in August 2014, I began experiencing problems with receiving

timely payment from Ellora’s Cave. 4. I was not paid for the projects I completed between August 23, 2014 and September

1, 2014, and was owed $7,346.28. 5. On September 28, 2014, I received an envelope in the mail that contained no

postmark, with a check dated August 8, 2014, for $1,838.05. 6. On October 4, 2014, I received a check in the mail, which was dated August 22,

2014, for $3,426.67. 7. At the time of this writing, I remain unpaid for project submitted between August 14,

2014 and September 1, 2014 for $2,081.56. 8. Over the past few months, payment has been significantly delayed, with no

communicated expectation of a realistic payment timeline. Many emails were sent to

DocuSign Envelope ID: B96F9FE6-40A0-4575-92A2-2E491C67DAA1Case: 5:14-cv-02331-JRA Doc #: 7-2 Filed: 10/21/14 2 of 3. PageID #: 114


management, including a number of emails to Courtney Thomas, CFO of Ellora’s Cave.

9. I received one delayed email in response from the CFO that promised that payment would happen, but never established a timeline and never stated that the checks would be in the mail. I was simply told to be patient.

10. On August 18, 2014, I received an email along with the fourteen other freelancers, informing us that we were all being laid off. We were told that to receive payment for the projects we were already working on, we would have to have it turned in by September 12, 2014, or our payment for these projects would be docked and delayed.

11. In my 12 years with Ellora’s Cave, I have never seen layoffs before. Over time, some editors would come and some would go, and sometimes, small groups of two or three would leave together to form their own publishing company. But I have never seen 15 editors terminated at the same time.

12. I have still not been paid for work I completed, in the timely fashion imposed in our layoff notice.

13. The writing is on the wall that the company is simply not in a good financial position and may not last much longer.

14. At this point, I am ashamed to have been associated with Ellora’s Cave, having witnessed the financial decline and the terrible treatment of authors, freelancers, and staff.

15. I was frustrated and shocked that a company that seemed to have it all had fallen apart so quickly.

16. I cannot say the Dear Author article changed my opinion, as my opinion was already rather poor, well before the article came out.

I declare under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge. Executed this _____________________.

Briana Lambert

DocuSign Envelope ID: B96F9FE6-40A0-4575-92A2-2E491C67DAA1



EXHIBIT C



CIVIL DIVISION


Plaintiffs,


Defendants.

Case No: CV-2014-09-4421

DECLARATION OF DEE SCHEFFLER IN SUPPORT OF DEFENDANTS’


I, Dee Scheffler, having personal knowledge of the matters set forth herein and

being competent to testify about them if called to do so at trial, state as follows:

1. I am an author. I signed my first contract with Ellora’s Cave in 2006, and published

my first book with them in 2007.

2. From the time I first started with Ellora’s Cave, I was issued a royalty check monthly,

beginning in the second month after each accounting period.

3. However, over the past few years, my royalty checks often arrived two or three

weeks after they were issued. I doubted the veracity of the explanations Ellora’s

Cave offered as to why they were late. But the real problems began in November

2013.

4. Since November 2013, my royalty checks have arrived later and later.

5. I was not issued a royalty check at all for January 2014.

DocuSign Envelope ID: 78C9A536-EE9E-4EC6-8D8E-207140FEE3C2Case: 5:14-cv-02331-JRA Doc #: 7-3 Filed: 10/21/14 2 of 4. PageID #: 117


6. Over the past year, I have received royalty checks backdated as much as five weeks

before I actually received them.

7. As of today, I have not received royalties for the accounting periods of June, July,

and August of 2014, which according to Ellora’s Cave’s payment schedule should

have all been mailed no later than September 30, 2014. Based on my recent payment

history, or lack thereof, I believe I am still owed approximately $6,000 for those

three months.

8. Ellora’s Cave has claimed that since November 2013, late payments were caused by a

new royalty accounting system. They said that because the new system was causing

errors in statements, the accounting department had to manually check every

statement to ensure its accuracy, which took extra time.

9. Back in November and December, I believed it was possible that problems with the

new accounting system had contributed to the lateness of the checks, but that could

not be the sole cause. However, I did not believe their explanation when they

missed January’s payment. I believe cash flow problems were the primary cause, and

that skipping one month of royalty payments gave Ellora’s Cave some financial

breathing room.

10. From February through June 2014, the accounting department had less trouble

getting my monthly checks mailed out to me in a more-timely manner, although still

at least one month behind schedule. When checks that were supposedly mailed by

July 31, 2014 did not arrive, authors were not informed of any new glitches with the

accounting system. In fact, we were not given any information at all until CEO Patty

Marks emailed the Author’s Loop on August 18, 2014. This was four days after we

were allowed to email the accounting department to report checks that were lost in

DocuSign Envelope ID: 78C9A536-EE9E-4EC6-8D8E-207140FEE3C2Case: 5:14-cv-02331-JRA Doc #: 7-3 Filed: 10/21/14 3 of 4. PageID #: 118


the mail. Patty’s email discussed “the drastic drop in sales” but did not actually

address why we were not getting paid on schedule, why checks had not been mailed

out on time, and why “a handful” of checks still had not been mailed as of August 18.

11. This led me to believe that Ellora’s Cave is on the verge of insolvency and that the

owners are lying about it to the authors, to the public, and possibly even to

themselves.

12. When I first began publishing with Ellora’s Cave, I believed it was an innovative

company. But I stopped submitting manuscripts to them after 2011 because I

seriously doubted that the owners and the management had the training, skills,

discipline, and stability required to properly manage the kind of money their authors

earned. I believed Ellora’s Cave was sliding downhill financially and I did not want

them to be my sole source of writing income.

13. Since January 2014, I have believed that Ellora’s Cave’s closure or bankruptcy filing

was inevitable.



Executed this _________________________.

Dee Scheffler

DocuSign Envelope ID: 78C9A536-EE9E-4EC6-8D8E-207140FEE3C2



EXHIBIT D



CIVIL DIVISION


Plaintiffs,


Defendants.

Case No: CV-2014-09-4421

DECLARATION OF ROSLYN HOLCOMB IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY

INJUNCTION

I, Roslyn Hardy Holcomb, having personal knowledge of the matters set forth herein

and being competent to testify about them if called to do so at trial, state as follows:

1. I began working with Ellora’s Cave on January 20, 2013 as an author.

2. My book was released on July 26, 2013, yet I did not receive my first check until

October 2013. The amount was small, but I expected that, because it was the first

check after release.

3. Most books through Ellora’s Cave are sold through third party vendors, including

Amazon, Barnes and Noble, ARe, and the like. These vendors pay two months in

arrears. So, for a book that was released in July, I understood that I would not

receive the bulk of the royalties until November.

4. However, when I received my November check, it was less than $50 and did not

include any third party vendor sales.

DocuSign Envelope ID: 9AAC63E8-8A67-4259-9195-D48FC6F74A79Case: 5:14-cv-02331-JRA Doc #: 7-4 Filed: 10/21/14 2 of 4. PageID #: 121


5. On December 7, 2013, I sent an email inquiring about third party vendor checks. I

was told that the third party vendor checks actually pay three months in arrears, and

the check would instead be mailed in December.

6. I am an experienced self-publisher, and I have nine books with another e-publisher.

I know that third party vendors always pay two months in arrears.

7. I did not receive a check at all in December.

8. On January 14, 2014, I sent an email to Ellora’s Cave to inquire as to why I had not

received my December check, which I had been told previously would be mailed in

late December.

9. I received no response to that email, so I sent another on January 18, 2014. I

received a response on January 22, 2014, which indicated that I should refer to a post

on the business loop. This post made reference to problems with a new accounting

system and being short staffed.

10. Even though I had been inquiring as to the status of my check for two months, they

never previously made mention of these technical difficulties.

11. My check finally arrived March 5, 2014 – three months after the date I was supposed

to have been paid. Payments have been erratic since then.

12. I believe that these excuses about the new accounting system, and being short staffed

are lies.

13. I think Ellora’s Cave is a woefully mismanaged company that benefitted from the

stagnant business model in the publishing industry, and then fell prey to the same

stubborn inability to change with the times. I also believe they have lied and engaged

in deceptive business practices.

DocuSign Envelope ID: 9AAC63E8-8A67-4259-9195-D48FC6F74A79Case: 5:14-cv-02331-JRA Doc #: 7-4 Filed: 10/21/14 3 of 4. PageID #: 122


14. I was very put off by an interview Ms. Engler did years ago, defending her marriage

to a man who had murdered a woman and tried to kill her daughter, and her

campaign to get him released from prison. I chose to not work with such a woman.

15. Before this book, I had never submitted anything to Ellora’s Cave because they had a

well known reputation for being “difficult” to work with. I only submitted my story

when I was advised that Ms. Engler no longer had anything to do with the day-to-

day operations of the company.

16. In January 2014, I posted an article to another blog warning other authors of Ellora’s

Cave’s business practices.

17. The Dear Author article did not tell me anything I did not already know. Ellora’s

Cave had been lying to me for more than six months before the Dear Author article

was published, my opinion of them was already very low.



Executed this _________________________, in Dunwoody, GA.

Roslyn Hardy Holcomb

DocuSign Envelope ID: 9AAC63E8-8A67-4259-9195-D48FC6F74A79



EXHIBIT E



CIVIL DIVISION


Plaintiffs,


Defendants.

Case No: CV-2014-09-4421

DECLARATION OF JULIE NAUGHTON IN SUPPORT OF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY

INJUNCTION

I, Julie Naughton, having personal knowledge of the matters set forth herein and being competent to testify about them if called to do so at trial, state as follows:

1. I began working with Ellora’s Cave Publishing in December 2012 as a content/acquiring

editor. I was hired by Kelli Collins, who at the time was Ellora’s Cave’s Editor in Chief.

2. I was typically paid every two weeks in the pay periods during which I had submitted

work. Ellora’s Cave’s policy with content editors was to have editors submit a final

edited manuscript in any given pay period and then receive a check two weeks later.

3. I personally began experiencing payment problems with Ellora’s Cave in July 2014. I was

not paid in the typical time period for “Coming for Midnight” by Jessica Shin, a

manuscript edited and submitted for final copy editing in July 2014. Repeated emails sent

to Ellora’s Cave Chief Financial Officer Courtney Thomas through mid-September went

unanswered.

4. I was paid the $225.19 owed to me for the editing of Ms. Shin’s book with a check dated

August 22, 2014 but with a Cleveland, Ohio postmark of October 2, 2014, which was

received in Hoboken, New Jersey, where I live, on October 8, 2014. I took an iPhone

video of myself showing the date on my computer, the postmark on the envelope,

DocuSign Envelope ID: 959365CE-989C-4884-BE71-7B13998F5E79Case: 5:14-cv-02331-JRA Doc #: 7-5 Filed: 10/21/14 2 of 6. PageID #: 125


opening the envelope and drawing out the pre-dated check as proof of this statement on

October 8, 2014.

5. I’ve been told by several other editors that they have had similar experiences.

6. Ellora’s Cave Publishing currently owes me $381.26 for the editing of the manuscript

“Hands All Over” by Kacey Hammell, submitted in the August 18 through 21, 2014 pay

period. I have written verification of this amount owed in an email from former

Managing Editor Whitney Mihalik dated September 10, 2014. To date, I have received

no guidance on when I can expect this money, and multiple emails to Ms. Thomas have

gone unanswered.

7. On August 18, 2014, Ellora’s Cave Publisher Raelene Gorlinsky sent all content editors

working as independent contractors an email on behalf of Ellora’s Cave Chief Executive

Officer Patricia Marks, stating that due to a dispute with Amazon, book sales via

Amazon had dropped sharply and that Ellora’s Cave was experiencing a negative return

on investment with most of its books, and could not afford to continue to employ the

independent editors. I have written verification of this statement in the form of the email

from Ms. Gorlinsky and written by Ms. Marks.

8. There was no notice whatsoever to editors or to authors that we would all be laid off.

Ms. Marks noted in that email that payment would be delayed but gave no time frame in

which to expect payment. She also stated that all remaining books submitted and

contracted would be edited by in-house editors. At that time, I believe there were three

staff editors, and hundreds of manuscripts. I have verification of these claims in email

form, in the email written by Ms. Marks and distributed by Ms. Gorlinsky. Part of that

email appeared in an article written by Calvin Reid, which appeared in the August 25,

2014 issue of Publishers Weekly: http://www.publishersweekly.com/pw/by-

topic/digital/retailing/article/63779-ellora-s-cave-ceo-confirms-amazon-sales-drop.html

9. I had heard concerns from several of my authors that royalties were late and/or much

lower than was usual beginning in January 2014. I had referred these questions/concerns

to Ms. Gorlinsky at that time.

10. Due to increasingly late payments and the abrupt dismissal of all content editors on

August 18, 2014 (independent contractor cover artists were dismissed the week prior), as

well as Ms. Marks’s statement about the company’s financial problems, my opinion as of

August 18, 2014 was that Ellora’s Cave was in dire financial straits.

11. My feeling that Ellora’s Cave was in dire financial straits was further compounded by

public records I accessed before and on the day of my termination. These records, on

the website of the Summit County Clerk of Courts, indicated that Ms. Engler-Keen and

Ellora’s Cave have an unpaid tax June 26, 2014 lien judgment from the Ohio



Department of Taxation in the amount of $105,819.92 on as well as a judgment from the

City of Akron for unpaid taxes in the amount of $29,679.52. I further noted that Ms.

Engler-Keen’s pattern of tax lien judgments extended to several prior years. I was also

dismayed to read the court filings of Ms. Engler-Keen’s and Ms. Marks’s conduct in the

case of Christina M. Brashear vs. Ellora’s Cave Publishing Inc., case number CV-2008-04-

2729, especially the documents which detail Ms. Engler-Keen’s and Ms. Marks’s

defamatory behavior in detail with the document:

http://www.cpclerk.co.summit.oh.us/PublicSite/Documents/civzzze700002F5D.pdf

12. My concerns about the future health of the organization were underlined on September

12, 2014, when during a phone conversation with Ms. Mihalik, she revealed to me that

she had resigned from the company.

13. Later that day I heard that Chief Operating Officer Susan Edwards had also tendered her

resignation.

14. When I read the Dear Author post entitled The Curious Case of Ellora’s Cave on

September 14, 2014, I remember thinking that it was well-researched and sourced, as

pretty much everything stated in the post was backed up by official communications I’d

received from Ms. Marks, Ms. Gorlinsky, and Ms. Mihalik, or was an opinion or issue

stated to me by an Ellora’s Cave author or employee.

15. I respected Ms. Gerrish-Lampe’s comprehensive and impartial reporting, although I was

already aware of everything she stated, as were many others, especially those who had

been independent contractors and full-time staff members of Ellora’s Cave.

16. My opinion of Ellora’s Cave was very negative due to the reasons above well before Ms.

Gerrish-Lampe’s post on September 14, 2014. Aside from the fact that I believe what

Ms. Gerrish-Lampe wrote is true, I have been a working professional journalist for the

past 23 years in New York City, and the First Amendment is critically important to me. I

am also of the opinion that if Ohio had an anti-SLAPP law, this suit would not continue:

http://www.publishersweekly.com/pw/by-topic/industry-news/publisher-

news/article/64178-ellora-s-cave-files-libel-suit-against-dear-author-blog.html

17. My opinion of Ms. Engler-Keen was further negatively influenced by rambling Facebook

posts and offensive Twitter posts that were posted under Ms. Engler-Keen’s

pseudonym, Jaid Black. Ms. Engler-Keen has since deleted all offensive postings —

including a Facebook post on September 14 calling those editors and authors who were

speaking up about non-payment “stone-cold, batshit fuck nuts” — screenshots are

available of multiple offensive postings, including Ms.Engler-Keen’s Facebook profile

picture of September 23, 2014, in which she “flips the bird” to her audience with her



middle finger extended. I have a screencap of this and it has also been all over Twitter

and Facebook via other people. I have multiple screenshots of said offensive posts.

18. There has been at least one suspicious new Twitter account, which I would classify as a

sockpuppet—or fake account—founded since this suit was filed. One in particular,

@Pubnt, has repeatedly posted Ms. Gerrish-Lampe’s name, fully aware that she writes

her blog under the pseudonym of Jane Litte, and has repeatedly made defamatory

comments about Ms. Gerrish-Lampe and positive ones about Ms. Engler-Keen. By

repeatedly broadcasting Ms. Gerrish-Lampe’s real name, it is my opinion that whomever

is behind this account is attempting to intimidate Ellora’s Cave authors—most of whom

write under pseudonyms— by indicating their real names could be revealed at any time.

This would be disastrous for some of these authors and could lead to dismissal from day

jobs. While writing erotic romance is certainly not illegal, there are many employers who

might not look kindly upon employees who write it. On October 12, 2014, the @pubnt

account referred to Ellora’s Cave authors as ‘trash who don’t know how to behave.’ I

have a screenshot of this as well.

19. In clear violation of court filings dated October 2, 2014 —

http://www.cpclerk.co.summit.oh.us/PublicSite/Documents/sumr000000A6A.pdf —

Ms. Engler-Keen continues to post both on her own blog, jaidblack.com, and on other

websites, about the case and its merits. http://jaidblack.com/entries/general/for-the-

silenced-victims-

20. Upon further research, seeking independent documentation of the alleged “defamation”

in Ms. Gerrish-Lampe’s statements, I found a Craigslist posting advertising the Ellora’s

Cave office building at 1056 Home Avenue in Akron, Ohio, for rent.

http://akroncanton.craigslist.org/off/4628577164.html. This was posted to Craigslist on

August 20, 2014 at 1:30 pm. This is the address listed in the court filings and on my

checks from the business as the address of Ellora’s Cave Publishing Inc. While the ad

was deleted on or about October 12, 2014, I have a screenshot demonstrating that it did,

at one time, appear.

21. I also found miscellaneous items for sale here: http://stores.ebay.com/Elloras-Cave-

Publishing and had been told by a former employee that there was a warehouse sale at

the company headquarters in July.

22. Several authors have reported to me that they got statements in October 2014 saying

royalties had been overpaid over 13 months and the amount deducted from the current

checks. These authors further state that checks were being mailed with undated meter

strips until it was mentioned on Twitter that this practice is illegal, in fact a federal



offense for the United States Postal Service. Then envelopes began arriving with

postmarks.

23. Ms. Marks repeatedly, in both official communications and in statements to Publishers

Weekly, stated that the company’s financial problems were due first to a software glitch

and then to Amazon’s algorithms. The “software glitch” excuse has been used for more

than a year and was alluded to in an article written by Calvin Reid which appeared in the

May 15, 2014 issue of Publishers Weekly. I strongly believe that if any software had that

many problems, a qualified chief financial officer and chief executive officer would have

cut their losses and switched to another type of program. Certainly such problems

should not last most of the year, in my opinion. It is my opinion that improper spending

of author royalties, coupled with a lack of cash flow to pay authors, began at least as

early as late 2013.

24. http://www.publishersweekly.com/pw/by-topic/industry-news/publisher-

news/article/62296-ellora-s-cave-blames-software-for-royalty-problems.html

I declare under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge.

Executed this ______________________, in Hoboken, New Jersey.

Julie Naughton

DocuSign Envelope ID: 959365CE-989C-4884-BE71-7B13998F5E79



EXHIBIT F



CIVIL DIVISION


Plaintiffs,


Defendants.

Case No: CV-2014-09-4421

DECLARATION OF MARY HARRIS IN SUPPORT OF DEFENDANTS’


I, Mary Harris, having personal knowledge of the matters set forth herein and being

competent to testify about them if called to do so at trial, state as follows:

1. I began working for Ellora’s Cave February 24, 2014.

2. I applied for and was accepted as a development/content editor, beginning as a

junior and later promoted to senior.

3. In the past, I was typically paid within 2 weeks of the end of the pay period.

4. I began experiencing payment problems with Ellora’s Cave with the submission of

my July 24, 2014 invoice.

5. I have not been paid in full for the invoice I submitted on September 15, 2014. I am

still owed $4541.59

DocuSign Envelope ID: 504DDACC-C768-4694-9288-12A02A254CB5Case: 5:14-cv-02331-JRA Doc #: 7-6 Filed: 10/21/14 2 of 4. PageID #: 131


6. The way I have been paid since July, 2014 is different than how I was paid in the past

in terms of lateness. I received my first check in a timely manner. My second July 24,

2014 invoice was not paid until September 22, 2014.

7. I am not an author with Ellora’s Cave, nor do I or have I worked in any capacity

other than junior and senior development/content editor with Ellora’s Cave.

8. I am still owed $4541.59.

9. I received several communications from persons at Ellora’s Cave regarding late

payments due to: “a delay, but checks went out late last week”; “the checks went out

last Thursday, however, after looking at the payroll, you didn’t report anything that

pay period”; declining sales due to Amazon; “payment for editing these books might

be delayed,”; several emails requesting me to also notify others at Ellora’s Cave about

my lack of payment; and a final note that “to be frank, these emails from you are just

being deleted unread. … things not yet paid are NOT put on the next payment –

that would cause duplicate account. … So Accounting will pay when they can, by the

two-week period. The emails from you would just confuse the issue and delay

payment…” (this last in reference to my updated invoice reflecting payment on

9/22/14 and the balance due of $4541.59).

10. My belief in the validity of those explanations for late payment is that most were a lie

in order to defer actual payments, and the last was an attempt to blame me for

causing any confusion which would result in delayed payments.

11. My opinion of Ellora’s Cave is that it was a viable company at one point. But, my

observation is that the money which was coming in was not used to pay editors. I

decline to speculate on whether freelance cover artists or authors were paid in a

DocuSign Envelope ID: 504DDACC-C768-4694-9288-12A02A254CB5Case: 5:14-cv-02331-JRA Doc #: 7-6 Filed: 10/21/14 3 of 4. PageID #: 132


timely and fully sufficient manner. I look rather to how I have been paid – I have not

been paid in a timely and fully sufficient manner.

12. My opinion of Ellora’s Cave between end of July, 2014 and the publication of the

Dear Jane article is the same as it is now. The article did not change my perception.

I knew that Ellora’s Cave was not meeting its financial obligations, and most people

who did business with Ellora’s Cave knew the same thing.



Executed _____________________, in Chicago, Illinois.

________________________________ Mary Harris

DocuSign Envelope ID: 504DDACC-C768-4694-9288-12A02A254CB5



EXHIBIT G


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