Althouse: "Oops — could Penguin be S.O.L., thanks to the S.O.L.?"

September 28, 2012

"Oops — could Penguin be S.O.L., thanks to the S.O.L.?"

"This is why you shouldn’t sue a Yale-trained litigatrix who used to work at Boies Schiller."

38 comments:

cubanbob said...: Penguin ought to consider sending her a 1099 and let her deal with the IRS.; 9/28/12, 8:14 AM
Ann Althouse said...: It's past the IRS's SOL too.; 9/28/12, 8:16 AM
MadisonMan said...: Litigatrix is a cool word.; 9/28/12, 8:22 AM
Gahrie said...: I will simply note that she fails to express any contrition for failing to honor the contract she signed.; 9/28/12, 8:23 AM
Jason said...: Wait. Somebody approved a loan to Elizabeth Wurtzel!?!?!?; 9/28/12, 8:27 AM
Hagar said...: Why do they give advances?; 9/28/12, 8:28 AM
slumber_j said...: Best comment over there: " What a nice attitude: I accepted your money and failed to deliver what I promised, but you're a jerk for suing me."

This is not an atypically Wurtzelian attitude, as I can attest from personal experience.; 9/28/12, 8:31 AM
NotWhoIUsedtoBe said...: " Rebecca Mead, a staff writer at The New Yorker, owes $20,000 (and at least $2000 in interest), according to Penguin, which struck a $50,000 deal in 2003 for “a collection of the author’s journalism.”"

Uh, how can it take 9 years to put together a collection of thing you've already written?

Oh, and Wurtzel went bankrupt? LOL? Really?; 9/28/12, 8:34 AM
Jason said...: So writers can work on the book they want rather than work on a day job. A publisher can also trade an advance for a few percentage points, too, and if the writer delivers, the publisher does better in the long run (assuming it's right about sales.)

A proven author is still worth something. A name brand. If someone like Ann Coulter wants an advance, you know in advance, rain or shine, she will sell X units. She has a baseline she will probably not go below, just on her name alone. She could deliver a phone book and she'll still sell X thousand books. Especially if she promotes, and she's a very effective promoter.

If you don't advance, she can easily shop her book idea somewhere else, and another publisher will be happy to grant an advance against receipts.

If you do advance, you can negotiate a greater share of the sales in return. Or you can negotiate a multi-book deal, locking her in to several books.; 9/28/12, 8:37 AM
Paddy O said...: Maybe the point of the lawsuit was to publicize which authors should not get any more book deals by any publisher.

Contracts have statutes of limitations. Trust doesn't.; 9/28/12, 8:38 AM
Ann Althouse said...: "Why do they give advances?"

The other side of the reason why a writer would take an advance.

It must be pretty annoying writing something you promised to write. Remember our President encountered that problem, with a contract to write a book on race, which he had trouble doing. That turned into the "Dreams" memoir, something pretty different from what he'd promised. Not sure how that was negotiated.

He also had to redo another book deal, one that is still pending: http://blogs.suntimes.com/sweet/2010/05/obama_revamped_book_deal_dream.html; 9/28/12, 8:41 AM
Patrick said...: Litigatrix is a cool word.

I got chastised for using "executrix" in law school. It's sexist, don't ya know.; 9/28/12, 8:44 AM
Ann Althouse said...: Wurtzel is suggesting that these advances are understood and handled in a particular way within the publishing industry, which may go to the question what the parties understood themselves to be promising.

I haven't done contracts law in a long time, but there could be some sophisticated arguments here, and Penguin has a business interest in its own reputation that might deter it from asking for what it's entitled to. Apparently, it was deterred for a long time. The question: What changed?

Anyway, the SOL is there for a reason. So is bankruptcy law.; 9/28/12, 8:45 AM
Ann Althouse said...: "I got chastised for using "executrix" in law school. It's sexist, don't ya know."

People hear the "trix" ending, referring to women, and it seems prostitute-y.

Viewing feminine endings as negative could itself be called sexist.; 9/28/12, 8:47 AM
NotWhoIUsedtoBe said...: What changed is that some middle manager is making a name for himself.

I agree with Paddy O that the point might be to poison the authors' brand by making it public that they don't honor their contracts.; 9/28/12, 8:48 AM
Shanna said...: I will simply note that she fails to express any contrition for failing to honor the contract she signed.

Indeed. Her practical points were kind of entertaining but she still took money she didn't earn. It sounds like she hates the publishing company and so doesn't care.; 9/28/12, 8:55 AM
cubanbob said...: Ann Althouse said...
It's past the IRS's SOL too.

9/28/12 8:16 AM

Did she list Penguin as a creditor? If so, then indeed they are SOL. Otherwise its a way to send a message to wannabe grifters.; 9/28/12, 8:56 AM
Lucius said...: Wait, Elizabeth Wurtzel is a *lawyer* now?!

I need to start doing drugs . . .; 9/28/12, 9:04 AM
Richard Dolan said...: "I haven't done contracts law in a long time, but there could be some sophisticated arguments here, and Penguin has a business interest in its own reputation that might deter it from asking for what it's entitled to. Apparently, it was deterred for a long time. The question: What changed?"

The problem with 'sophisticated legal arguments' is that they are expensive to litigate. The amount in controversy against Wurtzel is barely above the jurisdictional limit for Small Claims Court in NYC. Viewed as a stand-alone, this litigation makes no business sense at all, particularly if Penguin has to litigate whether the claim is time-barred or discharged in bankruptcy. The discharge in bankruptcy acts as an injunction, and violations of it can lead to problems if it applies to this (alleged) debt.

Whatever is going on here is, it's quite clear that it's not just an exercise in trying to collect for a long-ago breach of a contract. If it is, someone at Penguin has no business sense at all; 9/28/12, 9:16 AM
wyo sis said...: Contracts mean nothing it seems. There is an ethical question here.
When integrity is meaningless law can't fill the void.
The endless drip, drip, drip of eroding social values gets to be a sort of water boarding of the soul.
It makes me weary.; 9/28/12, 9:22 AM
Paddy O said...: To add to the brand aspect, it could also very well be that Penguin realizes the assumptions of Wurztel, that advances not resulting in books are just part of publishing. In a great economy, with publishing doing strong, it can function like that.

But when tightening the belt, things have to change, and advances can't just be ignored.

But how to change the policy and the culture and the expectations? Insist to new authors that you really, really mean it this time?

Or go after the big names of the past? While the courts might rule against you because of statute of limitations, their names get the publicity, and so Penguin is indeed using their fame to show it means business to new authors who won't have the SOL argument work for them.; 9/28/12, 9:31 AM
Texan99 said...: "there could be some sophisticated arguments here"

Maybe so, but not any admirable ones. I can't imagine why anyone would do business with this creature. She seems to lack the most basic sense of truthfulness or honesty.; 9/28/12, 9:57 AM
X said...: for some reason I thought this post was about a couple of our idiots.; 9/28/12, 10:05 AM
Levi Starks said...: Dear Penguin,
That advance was nothing more than a roll of the dice at the publishing casino...; 9/28/12, 10:09 AM
edutcher said...: I thought a litigatrix was someone who could untie a pretzel with her tongue.

Ann Althouse said...

I got chastised for using "executrix" in law school. It's sexist, don't ya know.

People hear the "trix" ending, referring to women, and it seems prostitute-y.

Viewing feminine endings as negative could itself be called sexist.

My thoughts, exactly.

You'd think some people are ashamed of being women.; 9/28/12, 10:20 AM
Kirk Parker said...: "Litigatrix is a cool word."

Yeah, but not nearly as cool as lactatrix! (See the comments.); 9/28/12, 10:24 AM
purplepenquin said...: Is it too self-centered that my first thought was "What the heck did I do to warrant my own post?!"; 9/28/12, 1:33 PM
X said...: heh; 9/28/12, 1:40 PM
pst314 said...: Over the last 30 years I've heard and read many writers discuss publishers advances. The impression I retain is that it's been far from rare for authors to take many years to write the book for which they received an advance, or even never write the book, and to expect that publishers should treat this as a mere cost of doing business.; 9/28/12, 2:16 PM
Triangle Man said...: Maybe so, but not any admirable ones. I can't imagine why anyone would do business with this creature. She seems to lack the most basic sense of truthfulness or honesty.

They do business with her because she made them a fortune with her book "Prozac Nation". Past results may not indicate future success, but they're a better predictor than past failure.; 9/28/12, 3:15 PM
Baron Zemo said...: This is all so pase.

It is all self publishing now.

I have self published several books. My collection of memories about my old freind Manitou. Recipes from Carninhall. Grooming Tips from the Red Skull.

They are all very profitable.; 9/28/12, 3:16 PM
Patrick said...: Is it too self-centered that my first thought was "What the heck did I do to warrant my own post?!"

Yeah, for a while, I thought Purple was suing that Wurtzel chick and Wonkette.; 9/28/12, 3:29 PM
Chip S. said...: If you decide to hire a litigatrix, just be careful not to employ a ligatrix by mistake.; 9/28/12, 4:54 PM
Synova said...: "Maybe the point of the lawsuit was to publicize which authors should not get any more book deals by any publisher."

This is likely. They had to have decided *at least* that they don't need another contract from anyone on the list, ever.

She certainly seemed to think that this was normal in a "I can shoplift from this store because the expense of shoplifters is worked into their business model." Or "I can wear and return all my clothes and get by paying nothing and I'm not taking anything from anyone because their own rules allow returns." Or "I can sue this person who didn't do anything wrong because she has insurance that will pay it."; 9/28/12, 8:44 PM
purplepenquin said...: "I can sue this person who didn't do anything wrong because she has insurance that will pay it."

"They just write it off!"; 9/28/12, 8:59 PM
Texan99 said...: "It's their own fault for giving me the money in the first place."; 9/28/12, 9:46 PM
Anonymous said...: If she really thinks she "took care of this debt a long time ago," why doesn't she simply say how and exactly when she did that? How hard would it be to say she actually paid it on x date, or that the debt was discharged in bankrtupcy? All she's really said is she's outraged and offended that a creditor would dare to hold her to her obligations and seek the benefit of its contractual rights. As for her legal background, if anyone thinks that intimidates potential adversaries, they are truly inexperienced nits.; 9/29/12, 1:13 AM
Anonymous said...: If she really thinks she "took care of this debt a long time ago," why doesn't she simply say how and exactly when she did that? How hard would it be to say she actually paid it on x date, or that the debt was discharged in bankrtupcy? All she's really said is she's outraged and offended that a creditor would dare to hold her to her obligations and seek the benefit of its contractual rights. As for her legal background, if anyone thinks that intimidates potential adversaries, they are truly inexperienced nits.; 9/29/12, 1:13 AM