Slarskey Secures Important Win for Academic Authors Seeking Unpaid Royalties
In this case, Slarskey LLC represents Fred Kleiner, an author and Professor Emeritus of History of Art, Architecture, and Archaeology at Boston University.
In 2005, Kleiner entered into a publishing agreement that granted Kleiner royalty rights for the numerous art history books and related editions he subsequently authored. After Cengage, the successor to that agreement, implemented Cengage Unlimited, a subscription model creating an all-access, on-demand electronic service, a new royalty model emerged that made it almost impossible for authors to determine whether their royalty payments were being accurately calculated and paid. Kleiner filed a class action complaint in the District Court of Massachusetts, seeking damages for affected authors, and to rectify Cengage’s unfair and deceptive practices.
Cengage argued that the New York choice of law provision in Kleiner's agreement barred him from asserting a claim under Chapter 93A, the Massachusetts statute that bars unfair and deceptive trade practices, and one of the strongest of such statutes in the country. The District Court agreed and dismissed the complaint. Slarskey LLC appealed the dismissal, and the Court of Appeals for the First Circuit reversed the District Court decision, reinstating Kleiner’s complaint.
Cengage will now have to answer for its unfair and deceptive accounting practices. This case, and the First Circuit’s decision, are important for the publishing industry: at bar is not just a question of whether Cengage properly paid royalties by contract, but whether their business practices are deceptively designed to take advantage of authors.