Slarskey Successfully Opposes Publisher's Bid to Dismiss Academic Authors' Claim of Unfair Business Practices
Slarskey LLC attorneys David Slarskey and Richard Weingarten recently took another successful step in support of authors seeking accountability for the unfair and deceptive royalty-reporting practices engaged in by Cengage, one of the nation’s largest textbook publishers.
In this putative class action, Slarskey LLC represents Fred Kleiner, an author and Professor Emeritus of History of Art, Architecture, and Archaeology at Boston University, an academic author who has been subjected to Cengage’s unfair business practices, designed to deny him the royalties to which he is entitled.
Kleiner is the author of numerous art history books published and distributed by Cengage. With the launch of Cengage Unlimited—a subscription model creating an all-access, on-demand electronic service, several years ago—Cengage announced a new royalty-payment model that has made it nearly impossible for authors to determine whether their royalty payments were being accurately calculated and paid and has, inevitably, led to the underpayment of royalties owed. Cengage’s business practices are designed to conceal the underpayment of royalties from Cengage Unlimited and other sales of its authors’ works. Kleiner filed a putative class action complaint in the District Court of Massachusetts under Chapter 93A, Massachusetts’ unfair and deceptive trade practices statute, seeking damages for affected authors and to rectify Cengage’s unfair and deceptive practices.
The District Court granted Cengage’s initial motion to dismiss based on Cengage’s argument that a New York choice of law provision in Kleiner’s agreement barred him from asserting a claim under Chapter 93A of Massachusetts law. Following Slarskey LLC’s appeal of the dismissal, the First Circuit Court of Appeals reversed the District Court’s decision and reinstated Kleiner’s complaint.
Undeterred, Cengage moved to dismiss again, arguing that even under Massachusetts law, Kleiner’s allegations boiled down to a routine breach of contract claim, and not a violation of the unfair business practices statute. Siding with Kleiner, the District Court disagreed, finding instead that Kleiner’s allegations described a broader scheme by Cengage not only to underpay royalties, but to obfuscate that fact from authors and take advantage of authors who questioned Cengage’s practices. The District Court determined that Kleiner has plausibly alleged unfair and deceptive acts, in violation of Massachusetts law.
Slarskey LLC, on behalf of Kleiner, will now begin fact discovery and the class certification process.