declaration of oren giskan in support of plaintiffs’ … · index no. 13-cv-2801 (dlc) ecf case...

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------------x

KELVIN JAMES, MARY SIMMONS, and JODI FOSTER,

on behalf of themselves and all others similarly situated,

Plaintiffs,

-against-

PENGUIN GROUP (USA) INC. and

AUTHOR SOLUTIONS,

Defendants.

--------------------------------------------------------------------x

Index No. 13-CV-2801 (DLC)

ECF Case

DECLARATION OF OREN GISKAN

IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

1. I am the attorney for the Plaintiffs in this action and submit this declaration in

support of Plaintiffs’ Motion for Class Certification.

2. Attached as Exhibit 1 to this affirmation are the relevant pages of the June 13,

2014 30 (b)(6) Deposition of William Becher, the Senior Vice President of Global Fulfillment at

Author Solutions LLC (“AS”).

3. Attached as Exhibit 2 to this affirmation are the relevant pages of the January 22,

2015 Deposition of William Becher.


2015 Deposition of Bruce Bunner, the Vice President of Global Sales at AS.

5. Attached as Exhibit 4 to this affirmation are the relevant pages of the December

5, 2014 Deposition of Susan Dunn, the Global Director of Author Marketing Services at AS.

Case 1:13-cv-02801-DLC Document 117 Filed 02/26/15 of 4

6. Attached as Exhibit 5 to this affirmation are the relevant pages of the June 13,

2014 30 (b)(6) Deposition of Kevin Gregory, the Senior Vice President, Chief Operating

Officer, and Chief Financial Officer of AS.


2015 Deposition of Kevin Gregory.


4, 2014 Deposition of Keith Ogorek, the Senior Vice President of Marketing at AS.


2015 Deposition of Joel Pierson, the Editorial Services Manager at AS.

10. Attached as Exhibit 9 to this affirmation are the relevant pages of the Deposition

of Don Seitz, the Senior Vice President of Business Development at AS.

11. Attached as Exhibit 10 to this affirmation are the relevant pages of the Deposition

of Kevin Weiss, the former Chairman and Chief Executive Officer of AS.

12. Attached as Exhibit 11 to this affirmation are the relevant pages of the January

16, 2015 Deposition of the Plaintiff Jodi Foster.


10, 2014 Deposition of the Plaintiff Mary C. Simmons.

14. Attached as Exhibit 13 to this affirmation is a document marked Exhibit 2 from

the Deposition of Kevin Weiss.


the January 22, 2015 Deposition of William Becher.


the January 22, 2015 Deposition of William Becher.



the Deposition of Keith Ogorek.

18. Attached as Exhibit 17 to this affirmation is an email dated July 14, 2008 from

Marcella Smith to Antoinette Ercolano and Patricia Bostelman produced to Plaintiffs pursuant to

a subpoena served on Barnes & Noble on July 7, 2014.

19. Attached as Exhibit 18 to this affirmation is an email dated July 22, 2008 from

Antoinette Ercolano to Marcella Smith, with an email below from Terry Dwyer to Antoinette

Ercolano that was produced to Plaintiffs pursuant to a subpoena served on Barnes & Noble on

July 7, 2014.

20. Attached as Exhibit 19 to this affirmation is the Resume of the firm Giskan

Solotaroff Anderson & Stewart LLP.

21. Attached as Exhibit 20 to this affirmation is the Declaration of Jodi Foster.

22. Attached as Exhibit 21 to this affirmation is the Declaration of Mary Simmons.

23. Attached as Exhibit 22 to this affirmation is a screen shot of the link

https://www.linkedin.com/company/author-solutions-inc.


http://www.iuniverse.com/why-iUniverse/publishing-the-iUniverse-way/selling-your-book.aspx.


https://web.archive.org/web/20131206041103/http://www.authorhouse.com/Servicestore/Service

List.aspx?Service=CAST-1582.


http://www.iuniverse.com/why-iUniverse/publishing-the-iUniverse-way/selling-your-book.aspx.



http://www.iuniverse.com/Packages/Premier-Pro.aspx.


http://www.iuniverse.com/Packages/BookstorePremierPro.aspx.


http://www.iuniverse.com/.


http://www.iuniverse.com/why-iuniverse/recognition-programs.aspx.


http://web.archive.org/web/20110809150834/http://www.iuniverse.com/why-

iuniverse/programs-awards/rising-star.aspx.


http://www.iuniverse.com/why-iuniverse/programs-awards/rising-star.aspx.


http://www.iuniverse.com/ServiceStore/ServiceList.aspx?Service=CAST-105.

Dated: February 13, 2015

New York, New York

s/

OREN GISKAN


EXHIBIT 1

Case 1:13-cv-02801-DLC Document 117-1 Filed 02/26/15 Page 1 of 3

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877-479-2484 U.S. LEGAL SUPPORT, INC. www.uslegalsupport.com

[Page 1]



13 Civ. 2801 (DLC)

--------------------------------------

KELVIN JAMES, MARY SIMMONS, and :

JODI FOSTER, on behalf of :

themselves and all others similarly :

situated, :

Plaintiffs, :

- against - :

PENGUIN GROUP(USA) INC., and :

AUTHOR SOLUTIONS, :

Defendants. :

--------------------------------------

* * *

30(B)(6) DEPOSITION OF AUTHOR SOLUTIONS

BY WILLIAM BECHER

* * *.

TRANSCRIPT of testimony as taken by

and before MONIQUE VOUTHOURIS, a Certified Court

Reporter, RPR, CRR and Notary Public of the States

of New Jersey and New York, at the offices of

DORSEY & WHITNEY, LLP, 51 West 52nd Street,

New York, New York, on Friday, June 13, 2014,

commencing at 3:00 p.m.



[Page 53]

1 form language that's used by --

2 A. I do not know. This is a salesperson

3 and I don't lead sales, so I don't know what language

4 may or may not be form language that salespeople use.

5 Q. How does Editor's Choice provide for

6 increased book sales?

7 A. Again, this is a sales conversation.

8 I'm not -- I personally, nor did any of my people

9 make this statement. So I would refer you to Kevin

10 Gregory or out of the sales organization to be able

11 to answer that question.

12 Q. Do you know whether any analysis has

13 ever been done to determine if people with the

14 Editor's Choice designation sell more books than

15 people who don't have it?

16 A. I am not familiar with any analysis.

17 Q. Do you know how you would do such an

18 analysis?

19 MR. HERMAN: If it could be done.

20 A. Yeah.

21 Q. Do you look at sales by book and

22 cross-reference it with Editor's Choice?

23 A. I'm assuming it could be done.

24 Q. What is Rising Star?

25 A. Rising Star is a designation that we


EXHIBIT 2


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[Page 1]



______________________________________x

KELVIN JAMES, MARY SIMMONS and JODI

FOSTER, on behalf of themselves and all

others similarly situated,

Plaintiffs,

- against -

PENGUIN GROUP (USA) INC. And AUTHOR

SOLUTIONS,

Defendants.

_____________________________________ x

January 22, 2015

10:05 a.m.

DEPOSITION OF WILLIAM BECHER, taken by

Plaintiffs, held at the offices of Dorsey

& Whitney, LLP, 51 West 52nd Street, New

York, New York, before JOELLE FALSETTA, a

registered reporter and Notary Public of

the State of New York.



[Page 43]

1 WILLIAM BECHER

2 A. I don't know. That is not

3 my department.

4 Q. Are you familiar with the

5 book story returnability service?

6 A. Yes.

7 Q. Can you explain what that

8 service provides for?

9 A. We will make this known to

10 retailers that if they purchase a book,

11 if they make a decision to purchase a

12 book and stock it, that they can return

13 it to us and not be charged for the

14 book or more accurately they return it

15 to our printer.

16 Q. Does Author Solutions pay

17 any third party in connection with that

18 service?

19 A. Can you be more specific in

20 your question?

21 Q. Yes. We could break it

22 down.

23 So some authors are charged for

24 that service; correct?

25 MR. HERMAN: Some authors



[Page 44]

1 WILLIAM BECHER

2 are charged for what service?

3 MR. GISKAN: Book store

4 return ability.

5 A. Correct.

6 Q. Do you know how much the

7 price is for that service?

8 A. I do not know.

9 Q. Is it on the website?

10 A. It's on the website.

11 Q. At the time -- strike that.

12 Does Author Solutions pay any

13 amount of that purchase price to any

14 third parties?

15 MR. HERMAN: I don't

16 understand. If you understand

17 the question, you could answer.

18 And when you say that, you

19 mean the amount that the author

20 is paying for the service?

21 MR. GISKAN: Yes.

22 A. I am not familiar with any

23 specific ear marking of bookings

24 related to this. Any specific ear

25 marking of that, that are then paid to



[Page 45]

1 WILLIAM BECHER

2 a third party.

3 Q. If a book store returns a

4 book to the printer, to Author

5 Solutions, does Author Solutions pay

6 any money to that book store?

7 A. I do not know the mechanics

8 of how the money flows in that

9 situation.

10 Q. Do you know any of the

11 mechanics of how the money flows?

12 A. I do know that we are

13 effectively out the cost of printing

14 the book.

15 Q. Are you out any other cost

16 if a book is returned?

17 A. The amount of the royalty

18 the author would receive is not

19 recouped.

20 Q. Let me see if I understand

21 that one. If a book store buys a book,

22 then the author receives the royalty at

23 the time of the purchase?

24 A. If the book store is

25 actually the one that is purchasing the



[Page 46]

1 WILLIAM BECHER

2 book, yes.

3 Q. I believe your testimony is

4 if that book is eventually returned,

5 the royalty is not deducted from the

6 author's royalties?

7 A. That is my understanding.

8 Q. How much does it cost Author

9 Solutions to offer that service?

10 A. I do not know.

11 Q. How does Author Solutions

12 set a price for that service?

13 A. I do not know and that is

14 not my area.

15 Q. Are you aware if any book

16 store has ever returned an Author

17 Solutions book?

18 A. I know that they have, but I

19 can't name any specific instances.

20 Q. Do you have any sense of the

21 volume of returns?

22 A. No.

23 Q. Who would have that

24 information?

25 MR. HERMAN: Objection to



[Page 46]

1 WILLIAM BECHER

2 book, yes.

3 Q. I believe your testimony is

4 if that book is eventually returned,

5 the royalty is not deducted from the

6 author's royalties?

7 A. That is my understanding.

8 Q. How much does it cost Author

9 Solutions to offer that service?


11 Q. How does Author Solutions

12 set a price for that service?

13 A. I do not know and that is

14 not my area.

15 Q. Are you aware if any book

16 store has ever returned an Author

17 Solutions book?

18 A. I know that they have, but I

19 can't name any specific instances.

20 Q. Do you have any sense of the

21 volume of returns?

22 A. No.

23 Q. Who would have that

24 information?




[2]

1 WILLIAM BECHER

2 conversion of MSS to TL for

3 partnerships."

4 A. Yes.

5 Q. What does that mean?

6 A. MSS manuscript sold to the

7 point in time -- the manuscript sold to

8 the point in time which the title was

9 live.

10 Q. Then it reads, "Partnerships

11 are the big growth area for ASI."

12 What does that refer to?

13 A. Sales is the, when you look

14 at core international and partnership,

15 that point in time partnerships was the

16 fastest part of our business.

17 Q. And then it states,

18 "Focusing on TL for partnerships will

19 continue to fuel downstream sales for

20 the MCs and BCs."

21 A. Yes.

22 Q. What does that refer to?

23 A. The MCs is marketing

24 consultants, they are in sales. The

25 leads for marketing consultants are



[Page 153]

1 WILLIAM BECHER

2 submissions. In the middle of our

3 publishing process, there is a

4 milestone called a submission

5 milestone. Once we have a submission,

6 that become as lead for MC. At the end

7 of the process in publishing services

8 our titles go live, that is then a lead

9 for the BC.

10 So there are more opportunities

11 for the MC and BC to engage the author

12 as we move the title through the

13 process.

14 Q. If you could look down to

15 the how, which is just below --

16 A. Yes.

17 Q. Number four reads, "Explore

18 the possibility of reducing the number

19 of packages with editorial assessment.

20 A. Yes.


22 A. In order to speed a title

23 through the process from manuscript

24 sold until title live, a significant

25 component of how quickly it moves



[Page 156]

1 WILLIAM BECHER

2 check-in coordinators working with --

3 we had to entice authors to submit

4 material, so we could get started with

5 their book. So submission miners were

6 a sub set of the check-in coordination

7 group, whose specific responsibility

8 was to reach out to authors who had

9 been languishing. That is authors who

10 had purchased but had not given us

11 anything so we could get started.

12 And their job was, let's get

13 some material from the authors, so we

14 could get started. That is what a

15 submission miner's role was.

16 Q. And what is a resubmission

17 only PSA?

18 A. A PSA is a publishing

19 service associate. They are the main

20 customer service person through the

21 design process in publishing services.

22 There are many ways that you can

23 classify them but there are two ways

24 you could classify books that are

25 relevant to that title, original



[Page 157]

1 WILLIAM BECHER

2 submissions and resubmissions.

3 So original submissions are ones

4 where the author is providing the book

5 for the first time and resubmission is

6 when the author is providing a

7 revision.

8 Typically the revision is a much

9 easier activity. The author has

10 already been through the process one

11 time. They understand more about it.

12 They typically need less hand-holding.

13 So we separate people at that point in

14 time into submission PSAs and

15 resubmission PSAs.

16 MR. HERMAN: I would like

17 to take a break.

18 MR. GISKAN: I am almost

19 finished with the document. Can

20 I finish?

21 MR. HERMAN: Okay.

22 Q. If you could turn the page

23 over. You have "A task to complete in

24 the next two weeks, a partner specific

25 promotion. Launch the May promotion



[Page 158]

1 WILLIAM BECHER

2 for languishing authors to approve by

3 May 31 in order to be entered into a

4 raffle to get their book to appear for

5 free in a gallery at a partner-specific

6 conference."

7 A. Yes.


9 A. Again we were trying to

10 again, the term languishing authors or

11 authors who have not submitted, trying

12 to get them to engage in the process so

13 we could get started on their book.

14 And part of that was to say if

15 you submitted your book by -- I am

16 sorry, this is approval. So it's the

17 second part of the process. So they

18 had their designs and they have been

19 sitting on their designs for a long

20 time and we cannot get them, a reaction

21 from them about whether or not they

22 want us to revise it or approve it.

23 And so we are trying to get them moving

24 on that review process by saying if you

25 approve by this point in time, we will


EXHIBIT 3



[Page 1]



------------------------------------------

KELVIN JAMES, MARY SIMMONS and JODI FOSTER,

on behalf of themselves and all others

similarly situated,

Plaintiffs,

vs. 13-CV-2801 (DLC)

PENGUIN GROUP (USA) INC. and AUTHOR

SOLUTIONS,

Defendants.

------------------------------------------

DEPOSITION OF BRUCE BUNNER

Monday, January 12, 2015

10:00 a.m.

Reported by:

Joan Ferrara



[Page 30]

1 Bunner

2 Q How do they do that?

3 A By asking a series of questions.

4 Q What questions do they ask them?

5 A It would vary tremendously

6 depending on the author.

7 Q Is one of the questions "do you

8 want to sell books?"

9 A No.

10 Q Why doesn't the salesperson ask

11 that question?

12 A We're more interested in

13 promoting the author and reaching the

14 author's goals or asking what their goals

15 are.

16 Q Do some of the marketing

17 services that Author Solutions sell help

18 authors sell books?

19 A They could.

20 Q Do you know?

21 A We don't track book sales to

22 marketing services.

23 Q If an author indicates that they

24 would like to sell books, that that's one

25 of their goals, does the salesperson direct



[Page 37]

1 Bunner

2 Q Okay.

3 You testified that in

4 preparation for today you reviewed training

5 manuals.

6 A Yes.

7 Q Did you see that instruction in

8 those training manuals?

9 A I didn't read them verbatim.

10 Q You don't recall seeing that, do

11 you?

12 A No.

13 Q Have you ever trained any

14 salespeople?

15 A Yes.

16 Q Okay.

17 When you trained them, did you

18 use documents?

19 A We used mostly the website.

20 Q How did you use the website in

21 your training?

22 A Would look at the different

23 products and packages and explain those to

24 the rep and what they're designed to do.

25 Q The website that you're



[Page 42]

1 Bunner

2 Q Did the -- I'm sorry, were you

3 finished with your answer?

4 A Yes.

5 Q Okay.

6 Do marketing consultants have

7 any marketing experience?

8 A Specifically, I would not know

9 per rep.

10 Q Was it required?

11 A No.

12 Q Was any experience in the

13 publishing industry required for marketing?

14 A No.

15 Q So how were the marketing

16 consultants able to consult with authors on

17 marketing services?

18 A Through training.

19 Q Through training.

20 Did you have any experience in

21 the publishing world when you were doing

22 the training?

23 A Yes.

24 Q What experience did you have?

25 A I had been a publishing or an



[Page 54]

1 Bunner

2 to reach out quickly and inexpensively to

3 truly huge markets, hundreds of thousands

4 or even millions of people. By increasing

5 your book's exposure to subscribed book

6 lovers and reading enthusiasts across the

7 world, you can vastly increase book sales

8 and awareness about your published work.

9 Is it your understanding that

10 the opt-in e-mail marketing campaign would

11 vastly increase book sales?

12 A I would have no idea what the

13 results of this campaign would be.

14 Q Who would you ask?

15 A The vice-president of marketing

16 or senior vice-president of marketing. We

17 don't really track sales to campaigns.

18 Q You don't really track sales to

19 campaigns?

20 A We don't.

21 Q You don't at all, correct?

22 A Correct.

23 Q I want to focus you on marketing

24 consultants.

25 A Sure.



[Page 57]

1 Bunner

2 Q Okay.

3 So we have time that the

4 marketing consultant has been working with

5 the author; two, whether or not an author

6 has purchased a service.

7 What are some of the other

8 factors that would determine --

9 A If they had purchased a service,

10 over time they would be reassigned.

11 Q If they had purchased a service,

12 would they be reassigned more quickly or

13 less quickly?

14 A That's part of the lead

15 management protocol. I don't know the

16 number of months it would take.

17 Q When you say lead management,

18 once an author has published with Author

19 Solutions, do you still use the terminology

20 lead management?

21 A Yes.

22 Q And how does it work after the

23 author is published, what does it indicate?

24 A There are certain rules where a

25 lead moves from a publishing consultant to



[Page 58]

1 Bunner

2 a marketing consultant, or an editorial

3 consultant, then to a book consultant.

4 Q Is the term lead used

5 interchangeably with author?

6 A Yes.

7 Q So a lead is someone that you

8 could sell services to?

9 A Correct.

10 Q Okay.

11 Getting back to the factors that

12 would go into the decision to move an

13 author from one marketing consultant to

14 another, we had length of time that the

15 marketing consultant has been working with

16 the author, we had services purchased by

17 that author. Are there any other

18 variables?

19 A If the consultant was no longer

20 with the company.

21 Q Any others?

22 A I'm not familiar with the lead

23 management protocol, but I believe that's

24 pretty comprehensive.

25 Q Are there tiers of marketing



[Page 63]

1 Bunner

2 have read a book --

3 MR. GISKAN: No, generally,

4 generally.

5 BY MR. GISKAN:

6 Q Are marketing consultants

7 prohibited from telling authors that they

8 have read the book?

9 A Unless they have, in fact, read

10 the book.

11 Q How is that communicated to the

12 marketing consultants?

13 A They are trained.

14 Q It's in the training manual?

15 A I do not know.

16 Q Well, you renewed some training

17 manuals in preparation. Did you see them

18 in there?

19 A I did not see it in there.

20 Q Do you recall ever seeing it in

21 a training manual?

22 A I do not.

23 Q Are marketing consultants

24 permitted to give authors their opinion of

25 the book?



[Page 65]

1 Bunner

2 draw against future commissions?

3 A What time period are we talking

4 about?

5 Q You tell me. Because obviously

6 there is a difference.

7 A It's varied many times in the

8 last 10 years.

9 Q Okay.

10 But divide for me the main

11 periods where it's varied.

12 A It varies year to year.

13 Q You'll change the system from

14 a --

15 A We could.

16 Q I know you could. Have you?

17 A We have.

18 Q Okay.

19 So currently, what's the system?

20 A It is base salary, no draw,

21 commission above base salary.

22 Q And is it an actual salary or is

23 it an hourly rate?

24 A It's -- because they are

25 non-exempted, it's an hourly rate.



[Page 66]

1 Bunner

2 Q What is that hourly rate?

3 A It, again, varies by location.

4 Q What is it in Indiana?

5 A Today?

6 Q Yes.

7 A I would have to do the math, but

8 it's a month, so that equals out

9 to -- I would need a calculator --

10 dollars something an hour.

11 Q What are the other locations

12 you're referring to?

13 A In Cebu.

14 Q And what's the pay there?

15 A pesos plus commission.

16 Q Is that a monthly amount?

17 A Yes.

18 Q Okay.

19 I'm not familiar with the

20 Philippine currency conversion. Do you

21 know what it is?

22 A It fluctuates actually a lot

23 more than the dollar.

24 Q What's the range?

25 A 42 to 1 to almost 50 to 1.



[Page 67]

1 Bunner

2 Q 42 to 50.

3 A to roughly.

4 Q A month?

5 A A month.

6 Q That's the base salary for all

7 marketing consultants?

8 A Yes, in Cebu.

9 Q And in Indiana?

10 A It is what I previously

11 mentioned.

12 Q Okay.

13 Plus they can get a commission?

14 A Correct.

15 Q And that's on top of the salary?

16 A Yes.

17 Q And when did that system go into

18 place, that it was on top of the salary?

19 A January 1.

20 Q Of?

21 A This year.

22 Q What was the system prior to

23 January 1, 2015?

24 A It was a commission where to

25 receive additional commission they had to



[Page 68]

1 Bunner

2 earn out their base. So a non-refundable

3 draw.

4 Q Were the monthly rates

5 essentially the same in 2014?

6 A Rates?

7 Q In Cebu it was to a

8 month?

9 A Correct.

10 Q And in Indiana it was .

11 A Correct.

12 Q So those numbers are roughly the

13 same?

14 A Correct.

15 MR. HERMAN: In Indiana, it was

16 , what do you mean?

17 MR. GISKAN: a month.

18 MR. HERMAN: No, that's not what

19 he testified.

20 BY MR. GISKAN:

21 Q a month?

22 A Yes.

23 Q Okay.

24 Why was that change made to make

25 the commission on top of the salary?



[Page 104]

1 Bunner

2 indicates that the book is not very good,

3 does Author Solutions, does iUniverse try

4 to market -- strike that.

5 Does iUniverse try to sell

6 marketing services to an author who

7 received a poor editorial evaluation?

8 A It would depend on what the

9 author's goals are.

10 Q Can you elaborate?

11 A Well, a bad review in no way

12 prohibits a book's success.

13 Q Have you ever -- by you, has

14 Author Solutions ever looked at the sales

15 of books that have received poor

16 evaluations?

17 A Not that I'm aware of.

18 Q Do other imprints have something

19 like an editorial evaluation?

20 A I believe some have an editorial

21 assessment.

22 Q Do those other imprints have

23 editorial services?

24 A Yes.

25 Q But they don't have editorial


EXHIBIT 4


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877-479-2484 U.S. LEGAL SUPPORT www.uslegalsupport.com

[Page 1]



KELVIN JAMES, MARY SIMMONS, )

and JODI FOSTER, on behalf of)

themselves and all others )

similarly situated, )

)

Plaintiffs, )

)

-v- ) CASE NO.

) 13-CV-02801

PENGUIN GROUP (USA) INC. and )

AUTHOR SOLUTIONS, )

)

Defendants. )

The deposition upon oral examination of

SUSAN DUNN, a witness produced and sworn before me,

Laurie Morgan, RPR, Notary Public in and for the

County of Marion, State of Indiana, taken on behalf of

the Plaintiffs at the offices of Alerding Castor

Hewitt, LLP, 47 South Pennsylvania Street, Suite 700,

Indianapolis, IN 46204, Indiana, on December 5, 2014,

at 8:57 a.m., pursuant to the Federal Rules of Civil

Procedure.



[Page 15]

1 estimate.

2 MR. HERMAN: Well, you can estimate, if you

3 can.

4 A Maybe 30 percent.

5 Q In Indiana?

6 A In Indiana. That's a very rough guess.

7 Q I'd like to go over a few examples of marketing

8 services offered. For instance, book galleries, do

9 you know what that service is?

10 A Absolutely.

11 Q What is that?

12 A Authors get their book placed in a booth at a

13 gallery, a show, that we attend.

14 Q How much do these services cost?

15 A I don't know prices off the top of my head.

16 Q What's the goal of the service?

17 A The goal of the service is to give the author a

18 means to reach out to the participants of that book

19 fair.

20 Q Is the service offered to every author?

21 A It's offered to those imprints that we offer that

22 service to.

23 Q Can you describe for me a little bit more about the

24 book gallery? What does it look like at the event?

25 A There's a booth, a 10 x 10 booth, as an example.



[Page 17]

1 It could be -- you know, if we had one booth,

2 it might be 50 books. If we have four booths, it

3 might be 200 books. I don't know.

4 Q Does the staff at the event read the books on

5 display?

6 A No.

7 Q Does this event ever sell out?

8 MR. HERMAN: The event? The fair, you're

9 talking about?

10 Q Does the service sell out?

11 A Yes. It could if we had too many people that we

12 could display books for, yes. We would cut it off.

13 Q Have you cut it off?

14 A Yes.

15 Q How many times?

16 A Since I've been there, maybe twice.

17 Q How does Author Solutions decide how to display the

18 books at the event?

19 MR. HERMAN: Objection as to form.

20 A I'm not able -- I'm unclear. I don't understand

21 what you mean.

22 Q Are some books displayed more prominently than

23 others?

24 A No.

25 Q All books are displayed equally?



[Page 18]

1 A Yes.

2 Q What are the criteria for whether this service has

3 been fulfilled?

4 A We take a picture of the book on the shelf that it

5 was on, and we send the author a pdf of the

6 catalog.

7 Q What do you do with the picture of the book on the

8 shelf?

9 A We have that just to show the author that your book

10 was on the shelf. So we take pictures of all the

11 shelves in the booth to show the authors that they

12 were on display. A lot of authors go to the

13 events, but in case they don't.

14 Q How many event-goers stop by the booth?

15 A I would have no way of knowing that.

16 Q Would that number be of interest to you?

17 A It might be. I know that the events -- when we go

18 to launch an event, we usually look at the

19 attendance of that event, but each event attendance

20 is different. Whether those people walk by the

21 booth or not, no way to know.

22 Q Have you handled complaints about book galleries?

23 A Not that I'm aware of. Not that I can think of.

24 Q Are you able to track sales of books from the

25 catalogs that you provide?



[Page 22]

1 Q What are the criteria for whether this service was

2 fulfilled?

3 A The author's attendance.

4 Q Is that it?

5 A Uh-huh.


7 A Every author that is part of the imprints that are

8 launched on that service.

9 Q What are your duties regarding fulfillment of this

10 event?

11 A I don't have any fulfillment duties in regard to

12 that event. I just supervise.

13 Q Have you handled any complaints in connection with

14 PitchFest?

15 A No.

16 Q Can this event sell out?

17 A Yes.

18 Q Does it?

19 A I think the first couple we did, did. But I don't

20 think they did this year.

21 Q How long has this been offered?

22 A About three years.

23 Q Video services, are you familiar with video

24 services?

25 A Yes, I am.



[Page 29]

1 of Author Solutions?

2 A Yes.

3 Q Who works there?

4 A There's only four individuals, and they report to

5 Keith Ogorek. There's a director -- or a director,

6 and then there's our editor, Bronic, and then

7 there's two coordinators or administrators.

8 They're the ones that actually make the

9 assignments.

10 Q Who is the director?

11 A Carolyn Weiss.

12 Q Do they only handle Book-to-Screen services?

13 A No, they handle all the video services as well.

14 Q Are these all full-time employees?

15 A Yes.

16 Q Do you have an address of the office?

17 A I don't.

18 Q Are all authors offered these Book-to-Screen

19 services?

20 A It's on the website, the imprints that offer it.

21 Q Do you assess the quality of the book before

22 fulfilling the service?

23 A No.

24 Q Does that matter?

25 A No.



[Page 30]

1 Q Are you familiar with the book sales return

2 program?

3 A Yes.

4 Q What is that?

5 A That is a program where we actually market a book

6 as returnable so that if a bookstore stocks our

7 book, they can send it back to us and we cover the

8 cost. They're -- the bookstores themselves are not

9 stuck with the cost of books on their shelves that

10 don't sell.

11 Q Is this offered to every author?

12 A Not every author because I think it only applies in

13 the United States.

14 Q Every author who is in the United States?

15 A Every author who is in the United States whose

16 imprint has this service.

17 Q In other words, there's no qualification about --

18 there's no -- the manuscript doesn't have to be of

19 a certain quality to be able to purchase this

20 service?

21 A No.

22 Q Can you tell me a little bit more about the

23 mechanics of this service? In other words, how do

24 you designate a book returnable?

25 A I -- that's not in my area, okay. I know what the



[Page 39]

1 Q Who was that?

2 A I have to think back. Renee, but I'm not going to

3 be able to tell you her last name off the top of my

4 head.

5 Q Who is the most senior individual of these five?

6 A Kara.

7 Q Does she have other responsibilities at Author

8 Solutions?

9 A Yes. Well, she's in charge of all of the events.

10 Q Okay. Does that mean she attends all of the

11 events?

12 A Not personally.

13 Q Are these five individuals in your department?

14 A Yes.

15 Q Are you familiar with the Newsmaker Publicity

16 Campaign?

17 A Yes.

18 Q What is that?

19 A A six-week campaign that is fulfilled through our

20 vendor, Bohlsen. Through our joint venture with

21 our vendor, Bohlsen, I should say.

22 Q What is the six-week campaign?

23 A Six-week campaign involves putting together

24 strategy for the book. Writing a press release,

25 doing a calendar, and doing outreach to the media,



[Page 40]

1 per the strategy.

2 Q Is this service offered to every author?

3 A Every author within an imprint that has that

4 service.

5 MR. HERMAN: Can you read back two questions

6 ago, question and answer.

7 (The requested material was read back by the

8 reporter.)

9 Q How much do you pay Bohlsen?

10 A Per campaign?

11 Q Per campaign.

12 A , per six-week campaign.

13 Q How much do you charge the author for this

14 campaign?

15 A I'm not sure. I would be guessing.

16 Q How do you determine whether the service has been

17 fulfilled?

18 A There are weekly reports that -- and a final

19 wrap-up.

20 Q Is the price the same across all imprints?

21 A I wouldn't know that. If it is different, it would

22 only be because of partner -- a partner royalty

23 or ...

24 Q Why do authors purchase the Newsmaker Publicity

25 Campaign?



[Page 42]

1 kits and services of that kind?

2 A I'm sorry. Could you repeat.

3 MS. KONIDARIS: Could you read back the

4 question.


6 reporter.)

7 A Yes.

8 Q How much do these services cost?

9 A I don't know.

10 Q Are they offered to every author?

11 A Every author that has that service in their

12 imprint.

13 Q Why would an author purchase a book marketing kit?

14 A It gives them materials that they can actually take

15 when they do their own marketing, when they do

16 their own outreach.

17 Q Is there a content component to the book marketing

18 kit? Is there content about the book?

19 A Yes.

20 Q Who creates that content?

21 A The author. It's directly pulled from the author's

22 description.

23 Q Where does that author give that description?

24 A In their author center. In their author account.

25 Q Why would they -- okay. Withdrawn.



[Page 47]

1 A Prior to 2013.

2 Q Where was that staff located?

3 A Indianapolis.

4 Q What is author website setup?

5 A A service where we take the book cover and, again,

6 the synopsis of the book, and create a website, a

7 four-page website for the author.

8 Q Is there a team involved in the author website

9 setup service?

10 A A writer and a web designer.

11 Q Where are these individuals based?

12 A Could be either Bloomington or Cebu.

13 Q Is there criteria for whether an author would be

14 given a writer, a team, in Bloomington versus Cebu?

15 A For web design, no, it's all based on capacity.

16 Q Does anybody on this team read the book?

17 A No.


19 A Yes.

20 Q How much does the service cost?

21 A Approximately, 600, $700.

22 Q How long does Author Solutions have to fulfill the

23 service from the time that title goes live?

24 A We try to get the initial draft to the author

25 within the three-week period after title is live.



[Page 54]

1 services representative?

2 A No.

3 Q Does an author -- when might an author fill out a

4 marketing questionnaire?

5 A There is no such thing as a marketing

6 questionnaire. There are individual service

7 questionnaires.

8 Q What services have service questionnaires?

9 A An example would be a press release.

10 Q Other examples?

11 A Publicity.

12 Q The publicity campaign with Bohlsen?

13 A Yes.

14 Q And the press releases, who does those?

15 A Internal writers.

16 Q Where are those writers based?

17 A Both locations.

18 Q How many staff members do you have to fulfill this

19 service?

20 A About 14 or 15.

21 Q Is it the same who did the author website setups?

22 A Yes.

23 Q So nine are in Cebu, and six are in Indiana?

24 A (Affirmative nod.)

25 Q Is every author offered a press release?



[Page 55]

1 A With their imprint that offers press releases, yes.

2 Q Have you ever heard from any of your writers that

3 the book was of very poor quality that they were

4 given to write a press release about?

5 A Occasionally.

6 Q Does Author Solutions do anything in those

7 instances?

8 A No.

9 Q It fulfills the service?

10 A Absolutely.

11 Q How much is the press release service?

12 A Again, there are several different types. So a

13 range of 400 to 1,400.

14 Q What types of questions are on the questionnaire

15 for the press release?

16 A Target audience.

17 Q Why does target audience matter?

18 A We need to know who the author is trying to make

19 the information available to, whether -- you

20 wouldn't necessarily, for a cooking book, go after,

21 you know, high schoolers. So target audience is

22 going to make a difference.

23 Q What other types of questions are in the

24 questionnaire?

25 A Author biographical questionnaires or questions.



[Page 56]

1 Q Are author goals a part of the questionnaire?

2 A I don't think so.

3 Q Do your marketing service representatives know

4 which services are most effective for the goal of

5 selling books?

6 MR. HERMAN: For the -- I'm sorry, I didn't

7 hear you.

8 MS. KONIDARIS: The goal of selling books.

9 A No, because it's not one of the goals of our

10 marketing services.

11 Q Is fulfillment strategy part of the discussion in

12 launching a new service?

13 A Yes.

14 Q Why?

15 A We have to make sure that we can fulfill it, we

16 have the capacity to fulfill it, and that we are

17 covering our cost in that fulfillment.

18 Q What determines whether you have capacity to

19 fulfill a service?

20 A A number of things. The current services we're

21 offering, our staffing capacity.

22 Q Is skill set a factor?

23 A That would be part of capacity.

24 Q Right. That's what I'm asking. What makes up

25 capacity?



[Page 61]

1 MR. HERMAN: Fifteen writers and 15 web

2 designers?

3 THE WITNESS: Correct.

4 Q You also said that they're the same?

5 A The same writers.

6 Q The same 15 writers?

7 A Yes.

8 Q But there are an additional 15 web designers?

9 A Correct.

10 Q Where are those 15 web designers?

11 A In Cebu.

12 Q What do the web designers do in relation to the

13 service?

14 A Create the HTML code.

15 Q What do the writers do?

16 A Write the copy that's going to be included in that

17 HTML code, the book offering the description.

18 Q Is there an editing process for the writer?

19 A No.

20 Q So, in other words, the content that goes in the

21 press release, in the e-mail, how does it get

22 there?

23 A The writers would write the copy and send it to the

24 designers. The designers drop it into the e-mail.

25 Q Who edits the writer's writing?



[Page 62]

1 A No one.

2 Q How much does the service cost Author Solutions?

3 A I don't recall.

4 Q Have any -- does anyone in this pool of web

5 designers and writers read the book?

6 A No.

7 Q How do the recipients of this campaign opt in to

8 the campaign?

9 A They have opted in to Thrive Marketing's list. I

10 don't know how they do that.

11 Q Did you have a sense of who these outlets are that

12 opt in to the campaign?

13 A No.

14 Q So can any individual opt in into the campaign?

15 Could I opt in to the campaign?

16 A I don't know. Thrive Marketing provides an

17 opted-in list.

18 Q Does anybody at Author Solutions know who the

19 recipients are?

20 A No. It's proprietary.

21 Q It's proprietary for Thrive Marketing?

22 A (Affirmative nod.)

23 Q Does Thrive Marketing give you a sense of who these

24 recipients are?

25 A No.



[Page 63]

1 Q So how do you know -- withdrawn.

2 What is the value of this service to authors?

3 A Awareness of their book to potential book readers.

4 Q Are there any metrics that Author Solutions is

5 given to see whether somebody has opened the e-mail

6 or clicked on the link?

7 A Yes. Authors are actually sent a month into the --

8 after it's launched, a month later, they're sent a

9 click and open report.

10 Q Are they given any other information?

11 A No.

12 Q Is there any information that might be relevant to

13 the author?

14 A No. Since it's an awareness campaign, no.

15 MR. HERMAN: Can we take a break?

16 (A brief recess was taken.)

17 Q Why would an author buy an e-mail marketing

18 campaign?

19 A I can't presume to know why an author would buy

20 one.

21 Q From the company's perspective?

22 A To get awareness of his book to the public.

23 Q What is a book lover?

24 A I don't have thrive's definition of a book lover.

25 I know what I think a book lover is, someone who is



[Page 79]

1 sales. So I wanted to point out some things to see

2 if we should proceed." What does that mean "vetted

3 before sales"?

4 A When we sell a global publicity campaign, which is

5 a different campaign, we vet the book to make sure

6 that it has global possibilities. There are

7 certain books that don't lend themselves to being

8 globally publicized.

9 We don't vet or look at content or author

10 qualifications of any other book, or any other book

11 that has a potential campaign at the time of sale.

12 In other words, we are just looking at the book for

13 content.

14 Q Here for the global publicity campaign?

15 A Uh-huh. So the term "vetted," she says, "I'm not

16 sure if this was vetted before sales."

17 Q Is every author offered the global publicity

18 campaign?

19 A If it's available for sale on their imprint, yes.

20 Q Why would this book not -- in the e-mail above

21 responding to this one, you write that this book is

22 not appropriate for a publicity campaign. Why not?

23 A When you market a book, it's different than when

24 you publish a book. There are a lot of things that

25 we can publish that we wouldn't necessarily want to



[Page 114]

1 Q Do you inform authors -- withdrawn.

2 Does Rising Star still maintain a relationship

3 with Barnes & Noble?

4 A As far as I know.

5 Q What is that relationship?

6 A We have a boutique on their website.

7 Q How many books are in that boutique?

8 A It varies.

9 Q Is there a range?

10 A I don't know how many they allow. So, no, I don't

11 know.

12 Q Is there a limit to how many can go into

13 boutique --

14 A I don't know.

15 Q -- from Author Solutions?

16 A We've never hit it, if there is.

17 Q So has Author Solutions imposed a limit as to how

18 many people can be featured in the boutique?

19 A Not that I'm aware of.

20 Q Are you familiar with whether Author Solutions

21 makes presentations to Barnes & Noble buyers in New

22 York?

23 A Presentations in what manner?

24 Q Regarding Rising Star authors.

25 A By what method?



[Page 115]

1 Q Any method at all.

2 A E-mail, they do.

3 Q What is the nature of those e-mails?

4 A There is a sell sheet -- a book summary sheet, we

5 call them sell sheets -- and a new title

6 information sheet that are e-mailed to our contact

7 at Barnes & Noble for every Rising Star author.

8 Q Who is your contact at Barnes & Noble?

9 A I don't remember her name. Evelyn.

10 Q How frequently do you e-mail Evelyn?

11 A It would be every time the board meets, which is

12 approximately once a month.

13 Q Does anybody make a presentation in person to

14 Evelyn?

15 A No.

16 Q Did Jay Holt work for you?

17 A Yes.

18 Q Did he report to you?

19 A Yes.

20 Q From when?

21 A From 2013 January until, what, late summer 2014.

22 (Plaintiffs' Exhibit 6 was marked for

23 identification.)

24 Q Marking this as Dunn Exhibit 6. This does not bear

25 a Bates number.



[Page 123]

1 A Emily Cessna.

2 Q Can you spell her last name?

3 A Cessna, C-E-S-S-N-A.

4 Q You mentioned that the coordinator puts out

5 materials to the author. What types of materials?

6 A My understanding is that the coordinator sends an

7 e-mail to the author and explains what they're

8 going to get with their Rising Star, in a bulleted

9 form.

10 Q Is there a -- are there form letters currently in

11 place for Rising Star?

12 A There are examples. I wouldn't call them form

13 letters. They're example letters.

14 Q How are those example letters used?

15 A To give the coordinator an idea of different ways

16 to say things.

17 Q And the coordinator can alter the letters?

18 A Sure.

19 Q What is your definition of marketing?

20 A My definition of marketing overall, or in regards

21 to Author Solutions?

22 Q In regards to Author Solutions.

23 A We are trying to provide authors with the best

24 quality services we can in their position for them

25 to be able to market their book.



[Page 124]

1 I mean, it would be unrealistic for us to

2 think that we could market our author's books.

3 Assisted self-publishing is marketing -- assisted

4 marketing.

5 Q What does that mean, it's assisted marketing?

6 A We're giving them the tools to do it on their own.

7 Q What is author marketing?

8 A Author marketing is a term used to define those

9 services that the author uses after the book is

10 published.

11 Q What are some examples?

12 A The services we've discussed today, press release,

13 web design, book marketing kit.

14 MS. KONIDARIS: That's it. Thank you very

15 much for your time.

16 MR. HERMAN: Okay. Read and sign.

17 (The deposition concluded at 2:03 p.m.)

18

19

20

21

22

23

24

25


EXHIBIT 5



[Page 1]



13 Civ. 2801 (DLC)

--------------------------------------

KELVIN JAMES, MARY SIMMONS, and :

JODI FOSTER, on behalf of :

themselves and all others similarly :

situated, :

Plaintiffs, :

- against - :

PENGUIN GROUP(USA) INC., and :

AUTHOR SOLUTIONS, :

Defendants. :

--------------------------------------

* * *

30(b)(6) DEPOSITION OF AUTHOR SOLUTIONS

BY KEVIN GREGORY

* * *

TRANSCRIPT of testimony as taken by

and before MONIQUE VOUTHOURIS, a Certified Court

Reporter, RPR, CRR and Notary Public of the States

of New Jersey and New York, at the offices of

DORSEY & WHITNEY LLP, 51 West 52nd Street,

New York, New York, on Friday, June 13, 2014,

commencing at 9:18 a.m.



[Page 71]

1 A. It's usually a query, asking for

2 specific information. But usually it needs to be

3 created.

4 Q. Does Author Solutions attempt to tie the

5 sale of service to any other measure of success --

6 and let me just give you some examples. For

7 instance, if somebody buys a developmental edit, do

8 they generally sell more books? That would be one

9 measure of success. That would be a measure of

10 success for the author. Another measure of success

11 might be for Author Solutions, that if somebody

12 bought a developmental edit, are they more likely to

13 buy a marketing package later. So does that analysis

14 take place in Author Solutions?

15 MR. HERMAN: If you know.

16 A. Can you elaborate on that question? I'm

17 not quite understanding what you're asking.

18 Q. I want to know --

19 A. Let me ask, are you talking from the

20 author's perspective or internally?

21 Q. Both.

22 A. Okay.

23 Q. I want to know what analysis you're

24 doing of the sales. Is it -- does sales of

25 developmental edits lead to other sales for Author



[Page 72]

1 Solutions?

2 A. No.

3 Q. Does sales of developmental edits lead

4 to sales of books?

5 A. No.

6 Q. You don't do the analysis, or --

7 A. We -- I'm sorry, let me be more

8 specific. We do not do that type of analysis.

9 Q. What analyses of sales numbers do you

10 do, that you're aware of?

11 A. Obviously overall sales, looking at the

12 sales we're generating from services, from books. We

13 look at it from PC's perspective.

14 Q. From what perspective?

15 A. Publishing consultant, call it a type of

16 sales or sales organization.

17 Q. Of the books?

18 A. No, no. So we look at -- two different

19 things; we look at services, we look at books. We

20 also look at it from the perspective of types or

21 sales organizations. We have different sales

22 organizations. And we look at, you know, sales from

23 those different sales organizations, and what they

24 are selling. You know, those are probably the

25 biggest -- the majority of the ways that we look at



[Page 109]

1 A. Again, it's not tied to their commission

2 that they actually make.

3 Q. The commission has a percentage?

4 A. I can tell you --

5 Q. What is the commission based on?

6 A. It's a percent of sales, yes.

7 Q. For all services? In other words, does

8 the percentage vary according to service?

9 A. It varies, depending on who is selling

10 it -- publishing consultants versus marketing

11 consultants versus book consultants. But it's not

12 within that particular area. So marketing

13 consultants, the percentage isn't different if I sell

14 this service versus that service. It's aggregated

15 sales.

16 Q. So when you use quotas or levels to

17 illustrate to salespeople what they could be making,

18 what are you doing? What additional information is

19 in there besides math; in other words, the percentage

20 times the sales figure?

21 MR. HERMAN: I don't understand the

22 question.

23 Q. Well, you indicated to me that the

24 quota-type information is used to -- you share it

25 with the sales representative and you say: Well, if



[Page 110]

1 you achieve this level you would make this much

2 money. What are you telling that person, other than

3 20 percent of 10,000 is higher than 20 percent of

4 5,000?

5 A. I would say that its primary purpose is

6 to be illustrative as to what they could be making.

7 Again, the commission isn't tied to that. It's tied

8 to the percentage that they earn on the sales that

9 they actually make.

10 Q. Is there a document that sets forth the

11 commission percentages?

12 A. Yes.

13 Q. What is that document called?

14 A. It is the -- I call it the one-pager.

15 But it's basically a document that lays out for each

16 of the sales groups, so like PCs, here is their

17 commission. And it's a kind of one-pager that kind

18 of lays that out, that the salesperson would receive

19 to kind of understand what the commission plan is.

20 Q. Commission plan is the term you used?

21 A. Again, I call it the one-pager. It kind

22 of lays out the plan: Here is the sales, here is the

23 percentage.

24 Q. If I ask John to get me the one-pager,

25 he might ask me what am I talking about?


EXHIBIT 6


afriedman

Typewritten Text


[Page 1]


FOR THE SOUTHERN DISTRICT OF NEW YORK

Case No. 13-CV-2801

KELVIN JAMES, MARY SIMMONS, and JODI :

FOSTER, on behalf of themselves and all :

others similarly situated, :

:

:

Plaintiffs, :

:

:

vs. :

:

:

:

:

PENGUIN GROUP (USA) INC. And AUTHOR :

SOLUTIONS, :

:

Defendants. :

:

-------------------------------------

DEPOSITION UNDER ORAL EXAMINATION OF:

KEVIN GREGORY

January 21, 2015

-----------

REPORTED BY: JENNIFER L. WIELAGE, CCR, RPR, CRR

------------



[Page 28]

1 direct as well as the channel.

2 Q. Direct to author as well as

3 the channel?

4 A. Correct. The third item is

5 Payment Plan Revenue and that is,

6 basically, the revenue that is generated

7 or the fees that are generated from the

8 payment plan that authors can choose so

9 they can choose to pay on payment plan.

10 Q. Let me just stop you there.

11 That's some sort of financing charge?

12 A. Correct. The Total Revenue

13 row there is -- I, again, don't have my

14 calculator, but I assume that that is the

15 combination of the revenue categories

16 above.

17 Q. Can we go back to Payment

18 Plan Revenue? If an author elects to use

19 a payment plan, are the services begun at

20 the time of the first payment?

21 A. It depends on when the

22 information actually comes in for the

23 author. It's not necessarily linked to

24 the payment plan. The work actually

25 starts happening once the collateral


EXHIBIT 7


afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text

afriedman

Typewritten Text


[Page 1]



KELVIN JAMES, MARY SIMMONS )

and JODI FOSTER, on behalf of)

themselves and all others )

similarly situated, )

)

Plaintiffs, )

)

-v- ) CASE NO.

) 13-CV-02801

PENGUIN GROUP (USA) INC., )

and AUTHOR SOLUTIONS, )

)

Defendants. )

The deposition upon oral examination of

KEITH OGOREK, a witness produced and sworn before me,

Debbi S. Austin, RMR, CRR, CSR, Notary Public in and

for the County of Hendricks, State of Indiana, taken

on behalf of the Plaintiffs at the offices of Alerding

Castor Hewitt, 47 South Pennsylvania Street,

Suite 700, Indianapolis, Indiana, on December 4, 2014,

at 9:45 a.m., pursuant to the Federal Rules of Civil

Procedure.



[Page 13]

1 A Just made an introduction to them.

2 Q Do you know if they purchased any marketing

3 services?

4 A I -- I do not.

5 Q Did AuthorHouse offer marketing services at that

6 time?

7 A I believe so.

8 Q What were the specific aspects of marketing that

9 you consulted with AuthorHouse about during the

10 period you were a consultant?

11 A Specifically around lead generation.

12 Q Any other areas?

13 A That was the primary one.

14 Q Other than self-publishing with AuthorHouse and

15 assisting two others, did you have any other

16 experience in book publishing as of September 2007?

17 A No.

18 Q What was your position in September 2007 at Author

19 Solutions?

20 A I was the director of marketing.

21 Q What were your responsibilities as director of

22 marketing?

23 A I was responsible for lead generation, content

24 creation, product development, and what would be

25 considered broadly public relations and



[Page 15]

1 A Yeah.

2 Q Those are the services that Author Solutions offers

3 to authors to market their books. What you

4 described sounds like marketing for Author

5 Solutions to sell the products of Author Solutions

6 to authors.

7 MR. HERMAN: Which actually the way you just

8 said it almost sounded the same way.

9 MR. GISKAN: More confusing.

10 MR. HERMAN: Yeah, so maybe --

11 MR. GISKAN: Let's go through it.

12 MR. HERMAN: I think we know what you're

13 saying, but it might be a little --

14 Q Lead generation, explain what that means.

15 A Lead generation is simply making known to aspiring

16 authors and writers that our imprints are available

17 to help them get to their goal of publishing their

18 book.

19 Q Okay. Content creation, what is that?

20 A That involves writing and designing content for

21 people to read on the websites or in e-mails that

22 we would send out.

23 Q Product development?

24 A Over time, as authors' goals change and the market

25 changes, we would develop services to help them



[Page 36]

1 of the first question. And you can -- and you can

2 decide whether you want to ask the first or the

3 second question. I don't know what you --

4 MR. GISKAN: Got it. Fair objection.

5 Q We'll just call them book signing events; is that

6 okay?

7 A Book signings at events.

8 Q Yes.

9 A Yes.

10 Q Okay, we'll call it that.

11 So my question was: Which authors did you

12 market that service to?

13 A We made the opportunity available to any author who

14 would want to take advantage of it.

15 Q How did you go about making authors aware of the

16 service?

17 A It first is posted on the website. So any author

18 looking at the website could see it. Depending on

19 the imprint, depending on the event, we also might

20 do a promotional e-mail from the marketing

21 department announcing the event.

22 Q And would that promotional e-mail be sent to all

23 authors?

24 A It could be.

25 Q Under what circumstances wouldn't it be?



[Page 43]

1 materials --

2 A Correct.

3 Q -- that they're giving away books?

4 A Correct.

5 Q My question was how do you know in those two

6 scenarios that those authors were not interested in

7 selling books?

8 A They never spoke about the goal being to sell books

9 at those events, because I think we limited our

10 discussion here to those events.

11 Q Have you ever done any sort of analysis of whether

12 authors who participated in the book signings at

13 events were able to as a result of those events

14 sell books?

15 A We have not.

16 Q Have you ever looked at the subsequent sales for

17 authors who attended those events?

18 A We have not.

19 Q The next one you mentioned was book galleries.

20 What are book galleries?

21 A Book galleries are where a book is put on display

22 at an event. It does not require the author to

23 attend. And there's a catalog made available for

24 anyone who would go in the book gallery to then

25 know how to order the book if they were so



[Page 44]

1 interested in ordering the book.

2 Q Who did you offer that service to?

3 A We make it usually known to any author who would

4 want to take advantage of the opportunity.

5 Q Well, how do you determine whether the author would

6 want to take advantage of the opportunity?

7 A Well, we would make -- we would communicate it, as

8 I said previously, on the website or perhaps

9 through a promotional e-mail.

10 Q To everyone?

11 A Yes.

12 Q So if I understand this service, you would have a

13 booth at a show?

14 A Correct.

15 Q And you would display the books of people who

16 purchased this service as opposed to the books of

17 other authors?

18 A Correct. And we'd provide a catalog for people who

19 come through the gallery to know how to order the

20 books.

21 Q Did you just -- give me some examples of places you

22 had book galleries.

23 A The Miami Book Fair; Los Angeles Times Book Fair;

24 Women of Faith writers conferences; I Can Do It,

25 which are Hay House conferences.



[Page 48]

1 A Yes.

2 Q Which ones?

3 A I don't know.

4 Q Were any of those books purchased at the Miami Book

5 Fair?

6 A I don't know.

7 Q Did you do anything to determine whether any sales

8 resulted from the book gallery at that show that

9 you attended?

10 MR. HERMAN: Can you repeat that question,

11 please.

12 THE WITNESS: Yeah.

13 MR. HERMAN: Actually, repeat the last two

14 questions, please.


16 reporter.)

17 MR. HERMAN: If you can answer, answer.

18 THE WITNESS: Yeah.

19 A No.

20 Q Did you do anything to determine if any sales

21 resulted from any book gallery at any show?

22 A It would be impossible to tell that.

23 Q Well, it might be impossible to tell all the sales,

24 but is it impossible to tell any of the sales?

25 A Yes, because someone could see a book at a gallery.



[Page 50]

1 A We could look at channel book sales, but that's

2 just one small part of how authors have

3 opportunities to sell books.

4 Q Have you ever looked at the channel sales for books

5 that were displayed in book galleries?

6 A We have not.

7 Q With respect to these services, you have testified

8 that the description of the service is presented on

9 the website?

10 A Correct.

11 Q And you said some of the time it's in a promotional

12 e-mail?

13 A It could be.

14 Q Well, has it ever been?

15 A Yes.

16 Q Okay. Anywhere else where the --

17 MR. HERMAN: I'm sorry, can you repeat the

18 question and the answer, please.


20 reporter.)

21 MR. HERMAN: I wasn't sure from your question

22 what "it's" -- what was "it's"?

23 MR. GISKAN: Yeah, I think the earlier

24 testimony was, and correct me if I'm wrong, that

25 some of these services are promoted through e-mails



[Page 52]

1 after the event?

2 A I don't know.

3 Q Who would know that?

4 A Susan Dunn.

5 MR. HERMAN: I'm sorry, can you repeat that

6 question and answer, please.


8 reporter.)

9 Q You mentioned video services as the next one on the

10 list.

11 A Correct.

12 Q What are the video services?

13 A There are services that include interviewing an

14 author at his or her location to help -- to give

15 them the opportunity to speak about their book.

16 And then there are what are commonly known as book

17 trailers that would involve music and images and a

18 call to action to let people know where the book

19 could be purchased. Sometimes there's voiceover

20 included as well.

21 Q Are the video services marketed to all the authors?

22 A Yes.

23 Q Have you ever attempted to measure the book sales

24 of authors who purchased the video services?

25 A No.



[Page 65]

1 BY MR. GISKAN:

2 Q We were talking about the marketing services --

3 A Correct.

4 Q -- sold by Author Solutions.

5 You mentioned that the terms of the services

6 were on the website or various websites; is that

7 correct?

8 A Descriptions of the services are on websites,

9 correct.

10 Q Fair enough. Could an author purchase the service

11 on the website?

12 A It depends.

13 Q What does it depend on?

14 A If there is a shopping cart on that website.

15 Q I'm guessing that certain websites didn't have

16 shopping carts?

17 A Correct.

18 Q Which did and which didn't?

19 A I do not know.

20 Q Did most of them have shopping carts?

21 A I would say most probably do.

22 Q Okay. Other than the websites with shopping carts,

23 where -- how else could an author purchase the

24 service?

25 A By speaking with a marketing consultant, or in some



[Page 66]

1 cases, maybe a publishing consultant, depending on

2 the service.

3 Q That would be over the phone in both of those

4 instances?

5 A Yes.

6 Q Could you do it by e-mail?

7 A Not that I'm aware of, but I'm not ultimately

8 responsible for sales.

9 Q Were you involved in any way of the -- with the

10 creation of the materials that were used in sales

11 to sell these services?

12 A When you say "the materials used in sales," could

13 you restate that?

14 Q Well, I'll try. Let me describe what I'm talking

15 about.

16 A Yeah.

17 Q Maybe that would be helpful. When a marketing

18 consultant or in some cases a publishing consultant

19 is speaking to an author about a particular

20 service, were you involved in any way in creating

21 the materials that that marketing consultant or

22 publishing consultant uses to sell the service to

23 describe the service, things of that nature?

24 A It depends.

25 Q What does it depend on?



[Page 67]

1 A For some services, there are what we would call

2 template e-mails that they are supposed to use.

3 But in most cases, they are supposed to point

4 people to the website.

5 Q Would the -- to your knowledge, would the marketing

6 consultants or publishing consultants -- let's just

7 call them consultants.

8 A Yeah.

9 Q -- access that information, discussing it with the

10 author?

11 A I don't know, because I'm not responsible for

12 sales.

13 Q But you also aren't responsible for the provision

14 of any materials to sales for selling these

15 services?

16 A We are responsible for creating the content on the

17 website. In select cases there are e-mails that we

18 will create, but not for every service and not for

19 every imprint and not in every case. So generally,

20 sales is responsible for their sales communication.

21 Q Okay. Let's talk about those e-mails for a second.

22 Who would write those e-mails, draft them?

23 A The template e-mails?

24 Q Yes.

25 A People on the marketing communications team.



[Page 116]

1 A Yes.

2 Q Was the price the same across the imprints?

3 A No.

4 Q How do you determine what price to charge on what

5 imprint?

6 A We follow the model, but in addition we pay a

7 royalty to the partners. And so we build that into

8 our margin as well too.

9 Q Is that the only factor?

10 A Yes.

11 Q So the PitchFest price for Xlibris and iUniverse

12 and AuthorHouse was the same?

13 A Yes.

14 Q Does the price for a service ever vary across the

15 core imprints; Xlibris, iUniverse, Trafford, and

16 AuthorHouse?

17 A No.

18 Q It's always the same?

19 A Not to my recollection have we ever done that, yes.

20 Q And the increased price that you charge on the

21 partner imprints is solely to cover the cost of the

22 payment to the partner?

23 A Correct.

24 Q What percentage of the cost of services goes to the

25 partner?



[Page 127]

1 Q Could you look at the total dollar figure for

2 services purchased and the number of book sales?

3 Could you examine a correlation between those two

4 things?

5 A I believe I said earlier, there are so many

6 different ways that authors do sell their books

7 that we have no visibility and no way to judge what

8 their total book sales are that it would be an

9 impossible measure for us to make.

10 Q So you have no idea whether the services help

11 authors sell books?

12 A The services are intended to help them create

13 awareness, build their platform, which could result

14 in book sales if that's their ultimate goal.

15 MR. GISKAN: Could you read back my question.

16 Q And I'd ask for a yes/no answer, and then you can

17 elaborate as you see fit.

18 A Okay.


20 reporter.)

21 A No.

22 Q Does Author Solutions track sales of books in their

23 retail channel?

24 A Yes.

25 Q Is that something you could compare to the amount



[Page 128]

1 spent on services?

2 A Yes.

3 Q Have you ever done that?

4 A No.

5 Q Are you aware of anyone at Author Solutions ever

6 having done that?

7 A No.

8 Q Do you personally talk to Author Solutions authors?

9 A Yes.

10 Q Have you discussed with them how many books they've

11 sold?

12 A Can you be more specific in that question?

13 Q I'm not sure I could be. I'm not sure anyone could

14 be.

15 A Yes, yes.

16 Q And what do they tell you?

17 A They tell me all the different ways that they sell

18 books.

19 Q Have any of them ever expressed to you that they

20 purchase services in the expectation that they

21 would sell more books?

22 A No.

23 Q You've never heard that from an author?

24 A Not directly.

25 Q Have you heard it indirectly?



[Page 129]

1 A At times.

2 Q At what times?

3 A Very rarely.

4 Q Most authors are happy with the services provided

5 by Author Solutions? And I'm talking about your --

6 A My conversations?

7 Q Yes.

8 A Yes.

9 Q Do you have a sense of how many Author Solutions

10 authors sell enough books to break even on the

11 services they purchased?

12 A No.

13 Q Are you aware of any analysis like that?

14 A No.

15 Q If somebody purchases $80,000 in services,

16 approximately how many books would they need to

17 sell to make up -- back the $80,000?

18 MR. HERMAN: There's so many variables.

19 MR. GISKAN: We can take your deposition next

20 round. I'm sure you have some good answers.

21 A That was going to be my answer. There are so many

22 variables.

23 Q That's my next question. What are the variables?

24 A The type of book it is, the size of book it is, the

25 number of books that the author purchases, if the



[Page 166]

1 represent their book for international rights.

2 Q Do they get any other benefits?

3 A There may be some other ones, but those are the

4 main ones that I can recall at this point.

5 Q Is there a department at Author Solutions

6 designated to increase book sales in the channel?

7 A Not specifically that I'm aware of.

8 Q Do you know anybody at Author Solutions that works

9 towards that goal?

10 A Not specifically that I'm aware of.

11 Q Do you know what percentage of Author Solutions'

12 revenues is derived from new authors?

13 A I do not.

14 (Plaintiffs' Exhibit 6 was marked for

15 identification.)

16 MR. HERMAN: Take your time and read every

17 page.

18 Q Actually, don't.

19 A Thank you.

20 Q Let me ask some initial questions, and then if you

21 want to take a look.

22 MR. HERMAN: Wait a minute, are you going to

23 mark this?

24 MR. GISKAN: I am. We are going to mark this

25 as Exhibit Ogorek 6. It is a long document bearing



[Page 188]

1 that the -- the metadata was appropriate for

2 Barnes & Noble to be able to order the books.

3 That's I believe what she means by "retail prep."

4 And then the Barnes & Noble boutique, one of

5 the unique benefits that only Rising Star authors

6 have is there's a unique collection page on the

7 Barnes & Noble website designated for Rising Star.

8 And there was a way that they requested that we

9 provided the information to them so that they could

10 update their website with our books.

11 Q Was Barnes & Noble pleased with the books that

12 iUniverse provided it?

13 A I never asked them if they were pleased or not

14 pleased. They were -- they continued the program.

15 Q Is the program still in place?

16 A It is.

17 Q Have you looked at the sales of books on Barnes &

18 Noble website, the Rising Star sales?

19 A No.

20 Q Would that be something useful to know in marketing

21 the Rising Star program to authors?

22 A It could be I guess, but ...

23 Q Was the decision -- at this time was the decision

24 made by Shelley and Joy to -- whether or not to

25 award Rising Star? Was it their decision?



[Page 194]

1 sarcastic in her comment of, "Unfortunately all

2 true," because of the context of this e-mail. So

3 that's -- I'm just --

4 And then the second piece is she would have --

5 in her position, she would have no way to be able

6 to evaluate whether any of these things were true

7 or not true.

8 Q Okay. Let's get your opinion on whether they're

9 true or not. If you look on the second page.

10 A Yes.

11 Q The person who posted on the blog who is -- we'll

12 call angry at ASI --

13 A Yes.

14 Q -- writes, "Salespeople brag about pushing

15 customers to overextend themselves, promising them

16 the world, laughing about how they'll probably only

17 sell a dozen copies."

18 Is there any truth to that?

19 A Again, I do not have any responsibility to sales,

20 so I've not heard anyone doing that.

21 Q Does that comment ring true to you?

22 A It does not.

23 Q Angry at ASI goes on and writes, "Authors are

24 regularly ridiculed for how bad the cover/content

25 can be."



[Page 195]

1 Have you ever heard of that happening at

2 Author Solutions?

3 A I would not use the term "ridicule." We offer

4 suggestions to authors about what to do with their

5 covers. Some authors choose to ignore those

6 suggestions and create their own artwork, and

7 sometimes those covers are things that we would

8 talk about. But I wouldn't use the word

9 "ridicule."

10 Q What word would you use?

11 A "Evaluate."

12 Q Were you ever present when a cover or content was

13 ridiculed by a employee at Author Solutions?

14 A I've been -- I've been present when covers were

15 discussed. I would not use the word "ridicule."

16 Q Mocked?

17 A Discussed.

18 Q Made fun of?

19 A Discussed.

20 Q Angry at ASI continues, "Keith Ogorek has a shelf

21 of the worst books in his office that he laughs

22 about."

23 Do you have such a shelf of books?

24 A I have a shelf of books in my office that has all

25 kinds of books on there.



[Page 196]

1 Q Was there any point in time where you would keep a

2 collection of the worst books?

3 A I have books as examples that I use for inspiration

4 for writing my blog, for talks I give. And so I do

5 have a shelf of books that are not the best covers,

6 and I also have on that same shelf books that are

7 very, very good covers, all done by us.

8 Q Angry at ASI also writes, "The royalties system has

9 always been a mess, but now it's in meltdown."

10 Would you agree with that statement --

11 A No.

12 Q -- as of the date that --

13 A No.

14 Q -- the posting was made?

15 A No.

16 Q Did Author Solutions have any problems with its

17 royalty system in or about May 2012?

18 A There were some issues related to the royalties

19 system, even on selective authors. There were some

20 selective authors that we needed to make some

21 payments to. But the characterization of

22 "meltdown" I think is incorrect.

23 Q He also -- I don't know that it's a he. Angry at

24 ASI also writes, "Sometimes people pay $80,000 or

25 more and barely sell a thing."


EXHIBIT 8


877-479-2484 US LEGAL SUPPORT, INC. www.uslegalsupport.com

[Page 1]



______________________________________x

KELVIN JAMES, MARY SIMMONS and JODI

FOSTER, on behalf of themselves and all

others similarly situated,

Plaintiffs,

- against -

PENGUIN GROUP (USA) INC. And AUTHOR

SOLUTIONS,

Defendants.

__________________________________________

January 23, 2015

10:05 a.m.

DEPOSITION OF JOEL PIERSON, taken by

Plaintiffs, held at the offices of Dorsey

& Whitney, LLP, 51 West 52nd Street, New

York, New York, before JOELLE FALSETTA, a

registered reporter and Notary Public of

the State of New York.



[Page 17]

1 JOEL PIERSON

2 to for each?

3 A. That is correct.

4 Q. After you realized that you

5 didn't do great at a grassroots level,

6 why didn't you purchase marketing

7 services.

8 A. It was a matter of money, I

9 didn't base my perceptions of success

10 for these books on huge sales for me.

11 It was the love of writing and the

12 satisfaction of having them out there

13 that made me happy.

14 Q. sales per book, is that

15 a low figure?


17 the form. Are you asking for his

18 opinion?

19 Q. Yes, in your opinion?

20 A. I would have been thrilled

21 if tens of thousands had been sold but

22 I felt a great deal of satisfaction for

23 every copy that was sold. So I am

24 going to say no, it's not a low figure

25 in my mind.



[Page 33]

1 JOEL PIERSON

2 an editorial services recommendation.

3 An editorial assessment is a

4 sample edit, typically 1,700 words and

5 a two-to three-page report summarizing

6 the book's strengths and areas for

7 improvement, followed by an editorial

8 services recommendation.

9 Q. Do either of these

10 evaluations recommend marketing

11 services?

12 A. No.

13 Q. Do either of these

14 evaluations allow an editor to mark

15 anywhere in sales force or any other

16 database that an author should or

17 should not buy marketing services?

18 A. No.

19 Q. So regardless of the

20 editorial evaluation, an author is able

21 to buy marking services?


23 the form. Do you understand the

24 question?

25 A. I understand the intent of



[Page 34]

1 JOEL PIERSON

2 the question but there is a difficulty

3 in that it asks me to speak to an area

4 outside of my field of knowledge.

5 I can say that the evaluations

6 have no impact on another department,

7 whether or not an author is eligible.

8 But I cannot say what criteria in that

9 department makes the candidate

10 eligible, if that is to the point.

11 Q. Does the editorial

12 evaluation or assessment determine what

13 editorial services an author can buy?

14 A. It includes a

15 recommendation. When developmental

16 editing is recommended, we always

17 include an alternate core service such

18 as line editing or content editing.

19 Q. Why?

20 A. We like to give authors a

21 choice because not everyone wants or

22 needs the extra attention of

23 developmental edit.

24 And we don't want to say it's

25 this or nothing because there would be



[Page 38]

1 JOEL PIERSON

2 specifically asks to bypass it.

3 Q. Do you know how errors might

4 appear in an author's manuscript?

5 A. I don't understand the

6 question.

7 Q. Do you know how publisher

8 errors might appear in an author's

9 manuscript?


11 the form. You can answer if you

12 think you understand.

13 A. A publisher error could stem

14 from a conversion error during book

15 design, when the manuscript goes from

16 Microsoft word to In Design.

17 Our company Lexicon also calls

18 a publisher error an error that an

19 editor omitted fixing, over looked I

20 should say or accidently introduced as

21 a typo during the editing process.

22 Those are the two that come to mind.

23 Q. What safeguards are in place

24 to ensure these errors don't happen?

25 A. I can speak to the editorial



[Page 45]

1 JOEL PIERSON

2 Q. Is there any concern that

3 working off the track changes document

4 new errors could be introduced and the

5 quality of the manuscript would be

6 compromised?

7 A. This is possible with either

8 version the author uses. Any revisions

9 hold the possibility of introducing new

10 errors.

11

12 Q. How does your department

13 address that concern?

14 A. We caution authors when they

15 make changes, they should look them

16 over carefully. And if the imprints

17 they are looking at features a quality

18 review, we encourage them to select

19 that quality review if they feel they

20 made extensive changes and may have

21 introduced errors.

22 MR. HERMAN: Can we take a

23 break now.

24 MS. KONIDARIS: Okay.

25 (A recess was taken.)



[Page 66]

1 JOEL PIERSON

2 provide.

3 Q. Do you feel that the sales

4 team is well-versed on the services

5 that, on the editorial services that

6 Author Solutions offers to its authors?

7 A. I can say yes to that.

8 Q. Do does a sales team sell

9 editorial services to authors?

10 A. Yes.

11 Q. Which sales individuals are

12 tasked with selling these services?

13 A. For iUniverse, it is the

14 editorial consultants.

15 For most other imprints, it's

16 the marketing consultants.

17 Occasionally an author will purchase

18 editing at the time he or she purchases

19 the package. And that is sometimes

20 completed by the publishing consultant

21 but that is rare.

22 Q. Why does iUniverse have

23 editorial consultants?

24 A. Part of the distinctiveness

25 of iUniverse is its focus on editorial



[Page 68]

1 JOEL PIERSON

2 Q. Has the editorial consultant

3 read the book?

4 A. No.

5 Q. Why does the editorial

6 consultant go over the EE and EE here

7 is editorial evaluation?

8 A. Understood, it's an

9 opportunity for the author to ask any

10 questions about the evaluation.

11 The editorial consultants are

12 very familiar with the format of it.

13 They will have read the specific

14 author's editorial evaluation and they

15 are ideally positioned to answer any

16 questions.

17 They are not there to talk about

18 chapter six needs more punching up or

19 your preface does not quite introduce

20 what the book is about.

21 It's more about the evaluator

22 has looked through the book, made a set

23 of recommendations. And here is why we

24 think they are good recommendations.

25 Q. So the author can talk to a



[Page 69]

1 JOEL PIERSON

2 salesperson about their evaluation but

3 they cannot talk to the editor?

4 A. Correct.

5 Q. For other imprints?

6 A. For other imprints, give me

7 a moment please. I am he trying to

8 remember the process for other

9 imprints. It's less structured but

10 after the editorial assessment is

11 complete, if one is obtained, a

12 marketing consultant will reach out

13 usually within a couple of days to

14 perform a similar role, going over the

15 assessment, going over the

16 recommendations and asking the author

17 if there are any questions.

18 Q. Does a marketing consultant

19 reach out even if there is no editorial

20 evaluation or assessment on the

21 author's work?

22 A. Typically not.

23 Q. Are there marketing

24 consultants that are specifically

25 trained to sell editorial services?


EXHIBIT 9



[Page 1]



-----------------------------------x

KELVIN JAMES, MARY SIMMONS and

JODI FOSTER, on behalf of

themselves and all others

similarly situated,

Plaintiffs,

-against-

PENGUIN GROUP (USA) INC. and

AUTHOR SOLUTIONS,

Defendants.

-----------------------------------x

January 13, 2015

10:00 a.m.

Deposition of DON SEITZ, taken by

Plaintiffs, pursuant to notice, at the offices

of Dorsey & Whitney, LLP, 51 West 52nd Street,

New York, New York, before SUZANNE PASTOR, a

Shorthand Reporter and Notary Public within and

for the State of New York.



[Page 4]

1 Solutions in 2009.

2 Q. Can you quickly go over your

3 employment history from 1983 to 2009?

4 A. Yes. I started with IBM and was

5 with IBM in various capacities through 1991 I

6 believe. Then I joined a large commercial

7 printing company located in New Jersey. My jobs

8 with IBM were up and down the East Coast.

9 Worked at that firm as head of sales for two or

10 three years. And then that was followed by two

11 senior roles at venture capital backed

12 companies; one was called Automated Compliance

13 Systems, which was a laboratory information

14 management systems provider, which is akin to an

15 ERP for laboratories.

16 MR. HERMAN: What was the name of

17 that?

18 THE WITNESS: ACS, Automatic

19 Compliance Systems.

20 A. Following that role I was in

21 another senior roles for a company called CARS,

22 headquartered in Baltimore, Maryland.

23 Then I joined Lucent Technologies

24 and was in their integration and mergers

25 organization. Then I went back to the



[Page 5]

1 commercial printing company New Jersey.

2 Q. What was the name of that company?

3 A. LP Thebault, T-H-E-B-A-U-L-T. A

4 family run business, very large family run

5 business.

6 We sold that company. Upon the

7 sale I joined a startup company in Boston called

8 HubCast, H-U-B-C-A-S-T, also in a business

9 development and sales senior capacity.

10 That takes me up to 2009.

11 Q. Have you worked continuously from

12 2009 to the present at Author Solutions?

13 A. Yes.

14 Q. And where is your office?

15 A. My office is in Bloomington,

16 Indiana. I also have an office in Indianapolis.

17 Q. But you live in New Jersey?

18 A. I live in New Jersey.

19 Q. Sounds like a long commute.

20 A. 643 miles.

21 Q. Do you commute back and forth?

22 A. I typically am in one of those

23 Indiana offices every two to three weeks and

24 then performing business development

25 responsibilities at other times.



[Page 11]

1 A. We managed the self-publishing

2 imprint called WestBow Press on behalf of Thomas

3 Nelson.

4 Q. What does that mean you managed

5 WestBow Press?

6 A. We would with them generate leads

7 from people who were interested in

8 self-publishing. We would contact and engage

9 those leads to discern their interest. We would

10 sell services to them, we would fulfill services

11 to them. We would meet regularly with Thomas

12 Nelson, and we would pay them royalties. "Them"

13 being Thomas Nelson.

14 Q. What did Thomas Nelson do as part

15 of that partnership? What was their role?

16 A. Their role was to also contribute

17 and assist in lead generation and to help define

18 and deliver unique services that would only be

19 available from WestBow Press and from nowhere

20 else in the marketplace.

21 Q. What unique services did Thomas

22 Nelson help define and deliver?

23 A. Probably a range of them. A couple

24 that come to mind, one is Thomas Nelson had

25 developed a blogger community, and through that



[Page 21]

1 they would have any specific knowledge beyond

2 that.

3 Q. Were the marketing services for

4 WestBow Press priced differently than the

5 marketing services for AuthorHouse?

6 A. I believe they were priced

7 similarly with the exception that we paid a

8 royalty to WestBow Press -- to Thomas Nelson.

9 And the price would possibly reflect that

10 differential cost that we have.

11 Q. Possibly or did?

12 A. I think in most cases did.

13 Q. Can you think of any cases where it

14 didn't?

15 A. Not off the top of my head.

16 Q. Was the royalty you paid upon the

17 sale of services to WestBow authors the same

18 percentage across the board? For example, did

19 you pay a royalty of 20 percent on all services?

20 A. I think your question, if I heard

21 it correctly, was a royalty to WestBow authors?

22 Q. No.

23 A. Or are we talking about the royalty

24 to the partner?

25 Q. Royalty to the partner. I agree,



[Page 49]

1 Q. Same as to the core imprints. I

2 think that was a "yes."

3 A. In addition to the services that

4 would be unique to the imprint.

5 Q. Were there book consultants for

6 Inspiring Voices authors?

7 A. Yes.

8 Q. Any other partnerships?

9 A. Yes.

10 Q. What's the next one?

11 A. Partnership with Nook Press.

12 Q. What is Nook Press?

13 A. Nook Press is the self-publishing

14 platform associated with the Nook eReader.

15 Q. The Barnes & Noble reader?

16 A. I'm not sure what the official

17 relationship is between Nook and B&N.

18 Q. Was there an imprint for your

19 partnership with Nook Press?

20 A. Nook Press is the imprint.

21 Q. Nook is the partner?

22 A. Nook is the partner.

23 Q. How did that partnership differ

24 from the others?

25 A. The folks who would have access to



[Page 54]

1 A. Yes.

2 Q. Are you referring to anything else?

3 A. No.

4 Q. Are you referring to book sales?

5 A. Sales to authors.

6 Q. Just book sales to authors?

7 A. Excuse me?

8 Q. Let's break it out. You have sales

9 services to authors. That's one part of it.

10 Another part is sales of authors' own books to

11 the authors themselves. Was that part of your

12 responsibility?

13 A. Yes.

14 Q. Did you have any responsibility for

15 sales in the retail channel?

16 A. No.

17 Q. Who was responsible for sales in

18 the retail channel?

19 A. I don't know where that fell.

20 Q. Was there someone --

21 A. I'm not sure -- we made books

22 available -- the reason I'm hesitating, we made

23 books available through various retail

24 distribution outlets. But that was an

25 operational function, if you will; that was not



[Page 55]

1 a sales function.

2 Q. Who did you report to when you

3 first started at Author Solutions in 2009?

4 A. The CEO.

5 Q. Kevin Weiss?

6 A. Yes.

7 Q. Did you know Kevin Weiss prior to

8 your employment?

9 A. I did.

10 Q. How did you know him?

11 A. We went to college together.

12 Q. Did you stay friends?

13 A. We did.

14 Q. Did you ever work with Mr. Weiss

15 prior to Author Solutions?

16 A. No.

17 Q. Did you report to Mr. Weiss until

18 he left Author Solutions?

19 A. I did.

20 Q. Who do you currently report to?

21 A. The current CEO.

22 Q. Andrew Phillips?

23 A. Yes.

24 (Counsel and witness confer.)

25 A. In answer to your very last


EXHIBIT 10



[Page 1]



-----------------------------------------x



similarly situated,

Plaintiffs, :

- against -


SOLUTIONS,

Defendants. :

-----------------------------------------x

51 West 52nd Street

New York, New York

November 20, 2014

9:30 a.m.

EXAMINATION BEFORE TRIAL of KEVIN

WEISS, a Non-Party Witness herein, taken by the

Plaintiffs, pursuant to Court Order, held at

the above-mentioned time and place, before

Michelle Lemberger, a Notary Public of the

State of New York.



[Page 11]

1 Kevin Weiss

2 Q. That was your first job out of

3 college?

4 A. It was.

5 Q. Briefly, what was your educational

6 background or what is your educational

7 background?

8 A. Princeton University.

9 Q. Do you have any graduate degrees?

10 A. I don't.

11 Q. Prior to your employment at Author

12 Solutions, did you have any experience in the

13 publishing industry?

14 A. No.

15 Q. At the time you were hired by Author

16 Solutions, did other employees in the company

17 have experience in publishing?

18 MR. HERMAN: I'm sorry, I'm not

19 sure I understand that question.

20 MR. WEISS: Well, what I'm

21 asking is whether employees of Author

22 Solutions at the time he was hired

23 had experience in publishing other

24 than at Author Solutions.

25 A. I believe so.



[Page 18]

1 Kevin Weiss

2 Solutions, do you recall which imprints were

3 part of Author Solutions?

4 A. Yes.

5 Q. Can you tell me?

6 A. AuthorHouse, iUniverse and Word

7 Play.

8 Q. Did Author Solutions have any

9 partnerships --

10 A. No.

11 Q. -- with other publishers at the

12 time?

13 A. No.

14 Q. Can you take me through the

15 acquisitions and partnerships that you did

16 while at Author Solutions?

17 A. To the best of my recollection, we

18 did a partnership with Lifeway, which became

19 CrossBooks around -- I don't remember the

20 precise date, but it was around the time, a

21 little before we did the acquisition of

22 X-L-I-B-R-I-S.

23 MR. HERMAN: He's not asking

24 for dates.

25 A. The next acquisition that we did was



[Page 19]

1 Kevin Weiss

2 Trafford, and then we did partnerships with

3 Harlequin, Hay House, Thomas Nelson, Writers

4 Digest, Simon Schuster.

5 Q. These were all while you were CEO?

6 A. Correct.

7 Q. Any other acquisitions or

8 partnerships?

9 A. Not that I can think of.

10 Q. Why did Author Solutions enter into

11 the partnership with Lifeway then Crossbooks?

12 A. I don't recall the precise reason

13 for the partnership at the time.

14 Q. Was that partnership -- strike that.

15 What was the role of Bertram in the

16 decisions to form partnerships and

17 acquisitions?

18 MR. HERMAN: Objection as to

19 form.

20 A. Bertram was the owner of the

21 company, but they weren't the day-to-day

22 operation of the company. We made the

23 decisions on the operation of the company.

24 Q. How often did you consult at

25 Bertram?



[Page 21]

1 Kevin Weiss

2 Author Solutions' revenues?

3 A. Among others.

4 Q. Who else would you speak with?

5 A. Jeff Drazin.

6 Q. Do you recall when Author Solutions

7 acquired Xlibris?

8 A. I believe it was in January of 2010.

9 Q. Why did Author Solutions acquire

10 Xlibris?

11 A. We -- our desire was to make several

12 acquisitions in the assisted self-publishing

13 space to try to increase revenues and grow

14 our business.

15 Q. Was that the purpose of the Trafford

16 acquisition as well?

17 A. Partially.

18 Q. What was the other purpose of the

19 Trafford or purposes of the Trafford

20 acquisition?

21 A. Trafford was bordering on insolvency

22 and I was concerned that if they became

23 insolvent there would be many authors who

24 would be left out in the cold. And I didn't

25 think that was a good thing for the authors



[Page 22]

1 Kevin Weiss

2 or for the industry.

3 Q. Why wouldn't it be good for the

4 industry?

5 A. You know, people would point to

6 Trefford as having taken people's money and

7 never delivered a service.

8 Q. Was it your intent when you were

9 increasing revenues and growing the business

10 to position Author Solutions to go public?

11 A. That was an option.

12 Q. Were you positioning Author

13 Solutions for an acquisition?

14 A. Ultimately.

15 Q. Is that what Bertram Capital does?

16 A. Correct.

17 Q. Was that made clear to you at the

18 time of your hire?

19 A. Yes.

20 Q. Were there any other imprints that

21 Author Solutions acquired or created during

22 the time you were there other than those that

23 you've mentioned?

24 A. Yes.

25 Q. What are the others?



[Page 27]

1 Kevin Weiss

2 Indiana?

3 A. Eventually.

4 Q. Were there any difficulties in

5 integrating Xlibris into the operations in

6 Indiana?

7 A. Not that I can recall.

8 Q. During the time you were CEO at

9 Author Solutions did Author Solutions have

10 employees in the Philippines?

11 A. Yes.

12 Q. When did Author Solutions start

13 operations in the Philippines?

14 A. When we acquired Xlibris.

15 Q. Did Xlibris have employees in the

16 Philippines?

17 A. Yes.

18 Q. Was that one of the reasons that you

19 acquired Xlibris?

20 A. No.

21 Q. That was beginning in 2010?

22 A. Yes, I believe that was.

23 Q. Did Author Solutions expand its

24 operations in the Philippines after the

25 acquisition of Xlibris?



[Page 28]

1 Kevin Weiss

2 A. Eventually.

3 Q. Why was that?

4 A. Access to quality employees, growth

5 in their business.

6 Q. Was the labor cheaper in the

7 Philippines?

8 A. It is.

9 Q. How much cheaper is it?

10 A. I couldn't tell you.

11 Q. What operations were conducted in

12 C-E-B-U, is that the name of the place in the

13 Philippines?

14 A. Yes.

15 Q. What operations were conducted in

16 Cebu as of the time you left Author

17 Solutions?

18 A. Sales, marketing, production

19 services.

20 Q. Can you explain what you mean by

21 sales in that context?

22 A. Sales of publishing packages,

23 marketing services, and book sales.

24 Q. Are you referring to book sales to

25 the authors themselves?



[Page 33]

1 Kevin Weiss

2 Q. Can you tell me what employees in

3 Cebu do related to production?

4 A. They create a book block, which is

5 taking an author's Word doc, for example, and

6 turning it into a production form book block

7 that can go to a printer. They create covers

8 for books. They answer authors' questions.

9 I think that that's the general category,

10 customer service, answering customers'

11 questions.

12 Q. Any other functions related to

13 production?

14 A. Not that I can think of.

15 Q. Were employees of Cebu involved in

16 the creation of press kits for authors?

17 A. I wouldn't know the answer to that

18 question.

19 Q. Who would?

20 A. I don't know.

21 Q. Were the employees of Cebu involved

22 in the creation of marketing materials or

23 kits for authors?

24 A. I don't know the answer to that

25 question.



[Page 50]

1 Kevin Weiss

2 example of where someone would get a call.

3 Q. Okay. And is that a good time to

4 approach authors to sell marketing services,

5 shortly before their manuscript is published?

6 A. I think generally, to understand

7 what the plan is, so that when your book

8 launches, and if you are interested in

9 marketing it, that you are marketing it at

10 the time of launch.

11 Q. Are salespeople instructed not to

12 pitch marketing services to authors until the

13 author's manuscript is close to publication?

14 A. I believe so.

15 Q. Where would you look to determine if

16 that was true?

17 A. You know, I'd look for education

18 materials and talk to training instructors.

19 Q. You used the term marketing

20 consultant. What is a marketing consultant?

21 A. Marketing consultant is a person who

22 engages with authors to understand which

23 marketing services make the most sense to

24 them and then sell services to the author.

25 Q. Is part of the marketing



[Page 55]

1 Kevin Weiss

2 common.

3 Q. Would you say it was rare?

4 A. I don't have the data in front of me

5 to make that.

6 Q. Are you aware of authors complaining

7 they were switched around from consultant to

8 consultant; have you ever heard that before?

9 A. I've heard that from time to time.

10 Q. Are authors approached by marketing

11 consultants made aware that the consultant

12 has a quota?

13 A. I don't know.

14 Q. You don't know one way or the other?

15 A. Correct.

16 Q. Who would know that?

17 A. The author would know.

18 Q. Are marketing consultants trained to

19 explain that to authors?

20 A. I'm not aware of that.

21 Q. Is every author contacted by a

22 marketing consultant with the exception of

23 ?

24 A. I would assume so, but I can't say

25 for sure.



[Page 64]

1 Kevin Weiss

2 those times were?

3 A. I can't.

4 Q. Would you agree that Author

5 Solutions aggressively sells marketing

6 services?

7 A. No.

8 Q. Why not?

9 A. I don't believe we do.

10 Q. What do you base that on?

11 A. My involvement with the company

12 while I was there.

13 Q. How often does an author contact you

14 for the purpose of selling the author

15 marketing services?

16 A. I have no idea.

17 Q. Do you know what percentage of

18 Author Solutions' authors make more money

19 from the sale of books than they spend on

20 services from Author Solutions?


22 Q. Has Author Solutions ever done that

23 analysis?

24 A. Not that I am aware of.

25 Q. Is that -- would that information be



[Page 65]

1 Kevin Weiss

2 relevant to the business of Author Solutions?

3 A. I don't believe so.

4 Q. Do you know what percentage of books

5 that Author Solutions' publishers make money

6 for Author Solutions?

7 A. Could you ask that question again?

8 Q. What percentage of books does Author

9 Solutions make money off of?

10 MR. HERMAN: I object to the

11 form of the question. I'm not sure I

12 understand what you are talking

13 about.

14 A. Yeah, I'm having trouble

15 understanding.

16 Q. Do you make money when you publish a

17 book? Did you make money when you published

18 a book?

19 A. You make money on -- I think we make

20 money on some books. I mean, we don't make

21 money on other books.

22 Q. Which books don't you make money off

23 of?

24 A. I suspect if a book took a long,

25 long time in the production process and was



[Page 66]

1 Kevin Weiss

2 very complicated to assemble and we spent an

3 enormous amount of time working with the

4 author to get the book done, I would guess in

5 some cases that we didn't make money.

6 Q. Would you factor into that equation

7 whether you sold that author marketing

8 services?

9 A. I guess you could, but that would

10 depend on the author.

11 Q. Has Author Solutions ever done an

12 analysis of what percentage of the authors it

13 publishes it makes money from?

14 A. Not that I am aware of.

15 MR. GISKAN: Mark this as

16 Exhibit 2.

17 (Whereupon, at this time, the

18 reporter marked the above-mentioned

19 management presentation as Weiss

20 Exhibit 2 for identification.)

21 MR. HERMAN: Off the record.

22 (Discussion held off the

23 record.)

24 Q. The court reporter has handed you

25 what's been marked Weiss Exhibit 2. It is a



[Page 86]

1 Kevin Weiss

2 Q. Okay. Let's go to --

3 MR. HERMAN: Can we take a

4 break?

5 MR. GISKAN: Can I just finish

6 up with book consultants? It will

7 take a couple minutes.

8 MR. HERMAN: How much more?

9 MR. GISKAN: Maybe another ten

10 minutes.

11 MR. HERMAN: Let's take a break

12 now.

13 (Whereupon, a brief recess was

14 taken at 11:42 a.m.)

15 (Back on the record at 11:55

16 a.m.)

17 BY MR. GISKAN:

18 Q. Mr. Weiss, are you familiar with

19 Author Solutions statements that it provides

20 one-on-one support for authors?

21 A. I believe so.

22 Q. What is your understanding of what

23 that statement means?

24 A. That you have the ability to speak

25 with an individual when you are working on



[Page 87]

1 Kevin Weiss

2 your book.

3 Q. Is a particular individual assigned

4 to the author for that purpose?

5 A. Depending on the function. I

6 believe depending on the function.

7 Q. We've gone over a few of the

8 consultants that an author interacts with,

9 the marketing consultant, the publishing

10 consultant. We are going to get to others.

11 That's already more than one person. So I'm

12 trying to understand what one-on-one support

13 means for an author.

14 Is there a single point person for

15 all issues for an author to communicate with?

16 A. I mean, that's -- I can't answer the

17 question. I'm not sure I understand what you

18 are asking.

19 Q. I'm asking what does one-on-one

20 support mean. One-on-one to me means there

21 is one person that deals with one author. It

22 doesn't appear that that's the case. So I'm

23 trying to understand what it means in the

24 minds of Author Solutions or its employees or

25 at least your mind.



[Page 88]

1 Kevin Weiss

2 A. Okay. In my mind it means that when

3 I'm in the middle of a publishing process,

4 that I have one -- generally one publishing

5 consultant that I work with throughout that

6 process. I say generally because someone

7 could change jobs or someone could lose --

8 but generally that's what you want.

9 Or if you know you are in the

10 marketing consultant, we would generally like

11 to have one person so that you establish a

12 relationship, know the book and so on. Same

13 thing with book consultant. That's the

14 intention.

15 Q. And in what percentage of cases does

16 that play out?

17 A. I don't know.

18 Q. More than 50 percent?

19 A. I don't know.

20 Q. Could it be less than five percent?

21 A. I doubt it.

22 Q. But it is possible? I mean, we hear

23 from authors all the time they are switched

24 from person to person and it's hard to get

25 anything done. So that's where this line of



[Page 95]

1 Kevin Weiss

2 Q. Do you know when it changed?

3 A. I don't.

4 Q. So the, if you look in the metrics

5 here, the quota here is a month?

6 A. Correct.

7 Q. And if my math is correct, they are

8 expected to sell an average order of to,

9 would that be 100 authors?

10 A. Yes.

11 Q. Was the author himself or herself

12 the biggest source of sales on average for

13 any given book?

14 A. I would generally say, yes.

15 Q. What percentage of authors were the

16 biggest customer for their own books?

17 A. I don't know.

18 Q. And I think we understand each

19 other, but what I mean, what we call book

20 sales are greater than channel sales?

21 A. Correct.

22 Q. You've never done an analysis or

23 looked at analysis of what percentage of

24 authors are their biggest customer?

25 A. Not that I recall. Not that I



[Page 144]

1 Kevin Weiss

2 the comments field for those project

3 IDs. And my understanding is these

4 are the results of editorial

5 evaluations for Author Solutions'

6 books.

7 BY MR. GASKIN:

8 Q. And Mr. Weiss, I'd like you to look

9 at the comments fields for the books and then

10 I will ask you about them.

11 (Witness peruses document.)

12 Q. I'm going to read into the record

13 the comments for the first entry.

14 A shapeless, soggy memoir by a woman

15 who divorced after 34 years and has been

16 rejected by her son and his family. She

17 presents letters, diary entries, quotes from

18 Garth Brooks' songs strung together with

19 endless hyphens and ellipses and includes

20 notes that indicate this is a nowhere near

21 finished product, though she thinks of

22 herself as a writer.

23 The referral is, non-editor's

24 choice, limited services available.

25 Do you know what is meant by limited



[Page 145]

1 Kevin Weiss

2 services available?

3 A. I don't.

4 Q. Who would you ask?

5 A. Bill Becker.

6 Q. Would Author Solutions sell or

7 market services to this book?

8 A. I don't know.

9 Q. Does it have -- does Author

10 Solutions have a policy of not selling

11 services to books with poor editorial

12 evaluation?

13 A. I don't know.

14 Q. During your time at Author

15 Solutions, other than the experience with

16 , did any book come to your attention

17 that was so poorly written that Author

18 Solutions made the determination not to try

19 to sell marketing services to that author?

20 A. I can't recall.

21 Q. Not a single instance?

22 A. I can't recall a specific.

23 Q. Do you recall that happening

24 generally?

25 A. I'm sure there were cases when that



[Page 163]

1 Kevin Weiss

2 their granddaughter and spent several

3 thousand dollars to go to the Miami book fair

4 and do book signings. And the author said

5 that it was the best money that he ever spent

6 because it allowed them to do that.

7 So the notion that every service

8 that gets procured by an author must receive

9 a return in book sales is not correct.

10 Q. Do you provide the author with any

11 explanation of how many books they might need

12 to sell to recoup their investment?

13 A. I don't know. It depends on whether

14 the author was interested in that.

15 Q. If the author asked the consultant

16 would you tell them?

17 A. I'm sure that the consultant would

18 work with them to understand how many books

19 they would need to sell to pay for the

20 service.

21 Q. How many other instances can you

22 recall where authors indicated to you that

23 they were not interested in book sales and

24 were purchasing the services for other

25 reasons like the grandfather you described?



[Page 164]

1 Kevin Weiss

2 A. I didn't speak to authors on a

3 day-in and day-out basis. That was an

4 example of somebody that said that to me.

5 Q. I'm asking how many others told you

6 similar stories.

7 A. I can't recall. That was one that

8 sticks out. I'm a recent grandfather and I

9 remembered it.

10 Q. Congratulations.

11 A. Thank you.

12 Q. Can you recall any other instances

13 of similar stories?

14 A. Not in specifics.

15 Q. Can you go back to Exhibit 11?

16 A. Is that the one we were just on?

17 Q. Two back. I just wanted to ask a

18 couple of other questions about that

19 document.

20 A. Is this the one? Let's make sure we

21 are on the same one.

22 Q. Yes.

23 MR. HERMAN: I'm sorry, which

24 one?

25 MR. GISKAN: 11.



[Page 218]

1 Kevin Weiss

2 fulfillment of author marketing services?

3 A. I believe that's what it's saying.

4 Sorry for cutting you off.

5 Q. And the number above COGS on the

6 chart on the left is the revenue from sale of

7 publishing services and author marketing

8 services to authors?

9 A. Not really. It's the revenue

10 associated with the fulfillment of services

11 sold to the authors; in other words, if

12 you -- if I were to buy a publishing package,

13 $900, there is no revenue associated with

14 that for the company. We don't receive any

15 revenue for that transaction until we fulfill

16 the services, generally. And so this

17 is when we have fulfilled the service

18 that was sold. Does that make sense?

19 Q. I think so. I think you are drawing

20 a distinction in timing.

21 A. No. Let me try to do a

22 hypothetical. I buy a publishing package

23 from AuthorHouse for $1,000 today. And I

24 submit my manuscript tomorrow. And

25 AuthorHouse starts working on my manuscript.



[Page 219]

1 Kevin Weiss

2 AuthorHouse doesn't receive revenue on that

3 package, we don't get to claim revenue until

4 we fulfill that service. Just a

5 generalization, we don't.

6 So it's in our best interest to work

7 with me to get this done, not to drag it out.

8 So what this is is a -- what we are planning

9 on fulfilling for marketing services and

10 publishing services -- publishing packages,

11 publishing services in 2012. It's nothing to

12 do with what is sold. It has to do with

13 what's fulfilled. Does that make sense?

14 Q. It does. And the revenue is, if you

15 paid $1,000 for your package, once it's

16 fulfilled that $1,000 goes in the revenue

17 box?

18 A. Generally, it depends on the mixture

19 of what's in the package but the $1,000 is

20 recognized, which is why there is no

21 incentive whatsoever for Author Solutions to

22 delay any.

23 MR. GASKIN: This is 22.

24 (Whereupon, at this time, the

25 reporter marked the above-mentioned


EXHIBIT 11



[Page 1]



___________________________________________x



similarly situated,

Plaintiffs,

- against -


SOLUTIONS,

Defendants.

__________________________________________x

M.O.A. Deposition Reporters

1074 East Avenue, Suite A

Chico, California 95926

January 16, 2015, 9:05 a.m.

EXAMINATION BEFORE TRIAL OF JODI FOSTER,

taken by Defendants, held at the above-mentioned

time and place, before ERIN WORLEY, CSR #13139.



[Page 66]

1 purchased from iUniverse?

2 A. It was Premiere Pro.

3 Q. Bookstore Premiere Pro Package?

4 A. Correct.

5 Q. That was in or around March of 2010, right?

6 A. Yes.

7 Q. How did you learn about iUniverse?

8 A. I did an internet search.

9 Q. Had you ever tried to have a book published

10 through a traditional publisher before you decided to

11 use an assisted self-publisher?

12 A. No.

13 MR. GISKAN: Objection. Form.

14 BY MR. KARAGHEUZOFF:

15 Q. I am going to -- so the record is clear, I am

16 going to define what I mean by traditional publisher.

17 Let's start with that.

18 A. Okay.

19 Q. By a traditional publisher, I mean a publisher

20 who obtains rights to your manuscript and publishes and

21 pays you in advance or royalties. An example of a

22 traditional publisher would be Penguin, Random House,

23 Llewellyn. Do you understand what I mean by traditional

24 publisher?

25 A. Yes.



[Page 74]


2 Q. What did you understand?

3 A. At the time they had not read my manuscript at

4 this point, so what they were doing was saying that they

5 were going to provide me a -- provide to me equal

6 comparatively to the publishers who have published Anne

7 Rice and Stephen King quality work. They were going to

8 give me the same quality work, and they worked with the

9 same people --

10 Q. Okay.

11 A. -- in the editing world.

12 Q. Did they discuss more than one package with you?

13 A. I believe they were, most of the time, promoting

14 a Premiere Pro package with me for $2,500. And what

15 they were saying was that it had returnability, and so

16 therefore I should buy this package because

17 returnability was very important when you have a book

18 out in the world. So when you had it at a bookstore,

19 they can return it if it doesn't sell. The bookstore

20 can return it to iUniverse.

21 Q. What did you pay for the Bookstore Premiere Pro

22 package?

23 A. She gave me a discounted price of 1,490 and

24 something dollars.

25 Q. Okay. When you made your purchase, did you have



[Page 81]

1 A. I don't believe I put it in writing.

2 Q. Okay.

3 A. But I do recall speaking with Kathi Wittkamper

4 about that in length.

5 Q. Okay. And when you spoke with Kathi, what did

6 she tell you about that?

7 A. Basically, she said if I purchased this package,

8 that it would give me the opportunity to qualify for

9 Editor's Choice and Rising Star program. That if I did

10 not purchase this, that I would not be able to qualify

11 for those two programs.

12 Q. Let me ask you, because I think my question was a

13 little different than that. My question was -- I asked

14 you a moment ago if you ever complained in writing that

15 the services that were part of the $4,000 package, the

16 editorial services, you thought were included in your

17 $1,500 package. The answer to that --

18 A. Okay. I have to stop you for a minute because

19 you're kind of making this a big, long question. Can

20 you just ask me, like, directly one question at a time.

21 Q. Sure. You purchased a $4,000 package, correct?

22 A. Yes.

23 Q. Prior to that, you purchased a $1,500 package;

24 correct?

25 A. Yes.



[Page 91]

1 A. I purchased the service, and there we go. Okay.

2 So I need to take a break now for a second.

3 Q. Sure.

4 A. Thank you.

5 (A break was taken.)


7 Q. You indicated earlier that you were told by Kathi

8 -- that you had indicated that you thought you would

9 have a book ready to go, and she said you should be

10 purchasing these additional services as part of the

11 Developmental Edit, correct?

12 A. Yes.

13 Q. Okay. You indicated to her that you were

14 surprised because you thought that the book was ready to

15 go and that some of these services were already part of

16 your prior package, is that correct?

17 A. Uh-huh.

18 Q. Okay.

19 A. Yes.

20 Q. So given that -- in other words, given that you

21 have said that you thought that these services were

22 previously going to be included and you were surprised,

23 why did you purchase additional services?

24 A. Because I was on a time schedule, and at this

25 point they had my book kind of held hostage, and I



[Page 106]

1 A. What's the question?

2 Q. The question is: Does it refresh your

3 recollection as to what you were told and when you were

4 told it?

5 A. Yes.

6 Q. Okay.

7 A. Now it does. I'm reading it.

8 Q. That was around August of 2010, correct?

9 A. Yes.

10 Q. And you purchased the Developmental Edit in

11 January of 2011, right?

12 A. I think we had talked about it at this point in

13 time, but I couldn't afford it.

14 Q. Okay.

15 A. And so she made a payment arrangement for me.

16 Q. In any event, whenever the payment plan began, it

17 was after August of 2010, wasn't it?

18 A. I believe so.

19 Q. In fact, whatever was told to you about Editor's

20 Choice and your ability to get it or not get it in

21 connection with Developmental Edit, you first received

22 your evaluation with respect to it before you made the

23 purchase decision; correct?

24 MR. GISKAN: Objection. Form.

25


EXHIBIT 12



[Page 1]



-----------------------------------------x



similarly situated,

Plaintiffs, :

- against -


SOLUTIONS,

Defendants. :

-----------------------------------------x

1400 Wewatta Street, Suite 400

Denver, Colorado

December 10, 2014

7:56 a.m.

EXAMINATION BEFORE TRIAL of MARY C.

SIMMONS, taken by the Defendants, held at

the above-mentioned time and place, before

Dawn K. Larson, MBA, RDR, CRR, and Notary Public of

the State of Colorado.



[Page 8]

1 that, I've not.

2 Q. Did you review any documents?

3 A. I looked over what was sent. I looked

4 over a bunch of the e-mails that went from me to

5 iUniverse and back.

6 Q. Do you remember any that stand out?

7 A. Well, the one that stands out always

8 the most to me is the one -- actually, I have to

9 rephrase that. There was such a tremendous lack of

10 communication from iUniverse in the last days that

11 what stands out are how many out-of-office replies I

12 got.

13 Q. How did you first hear about iUniverse

14 or Author Solutions?

15 A. I heard about Author Solutions because

16 I had been working on writing this book for a while,

17 and I decided that it was time to make a commitment

18 to publish it. So I researched the various

19 opportunities, and I understood from paying

20 attention out there and I have a friend who is an

21 author, that the publishing industry has really

22 changed and it's very difficult to find an agent.

23 So I am a rather independent sort, and I kind of

24 liked this change, so I said, "Well, who's out

25 there?" and I wanted to find a company that would



[Page 9]

1 provide editorial services as well as publishing

2 services. And so I did a little research, and that

3 is how I found iUniverse, and I had talked to the

4 people at Xlibris. I didn't understand at the time

5 that they are owned by the same company, but that is

6 how I researched it on the Internet.

7 Q. What steps, if any, did you take to

8 contact iUniverse?

9 A. I called them -- this is a while ago.

10 I might have sent in a form from their Web site

11 because they give you the programs, their various

12 programs, and possibly I wrote and said interested

13 in this one, and a person named Kim called me.

14 Q. Do you remember what month of what

15 year that was that you first made that contact?

16 A. It was in May. It was 2010 or '11.

17 It took me a long time to get my book done and back

18 to them, so it might have been May of 2011.

19 Q. Okay. And so you mentioned a Kim. So

20 Kim contacted you?

21 A. Uh-huh. Yes.

22 Q. And how many conversations did you

23 have with Kim or anyone else from iUniverse before

24 you actually committed to purchasing a package from

25 iUniverse?



[Page 38]

1 talk about who my audience was, what the genre of my

2 book was, and that there had been a marketing survey

3 that I filled out, which revealed that I don't know

4 anything about marketing, and that was what this

5 conversation was about. It was probably a half

6 hour.

7 Q. Was that survey that you filled out in

8 connection with the Rising Star program?

9 A. I don't know necessarily that it was.

10 I think it was just -- the way that I thought of if

11 at the time was: "Here's the next step. You've

12 written this book. They don't sell themselves. So

13 how do you plan on marketing it?" And so I filled

14 it out.

15 Q. What did you understand about the

16 Rising Star program, if anything?

17 A. I understood that it was a program

18 that the author had to qualify for, and I didn't

19 really understand what the qualifications were, and

20 I didn't until well after. What I thought it was

21 was that they have this program for a new author,

22 first book, first publication, and that they really

23 liked my book and that it would be in their interest

24 as well to promote my book to sell it because we're

25 all in this to sell books.



[Page 95]

1 100.

2 Q. And the second proofreading?

3 A. After the second one where I sent them

4 in a batch of "I want you to fix these," I think I

5 bought 50, but I might have bought 100. There were

6 more.

7 Q. So there were hundreds more?

8 A. I don't know if there were hundreds

9 more after the first hundred, but there were quite a

10 few more.

11 Q. In your interrogatory answer, you only

12 listed 60-something errors that were considered to

13 be publisher errors.

14 Do you recall doing that?

15 MR. GISKAN: Do you understand the

16 question?

17 THE DEPONENT: I do.

18 A. There was a place on their Excel file

19 where I could say it was a publisher error, and, for

20 me, all typographical errors were a publisher error.

21 I had paid for this service. As far as I remember,

22 I checked where I thought it was the publisher

23 making an error. There are things that I probably

24 wanted to change that I maybe paid for, but the

25 very -- the reason that I started up that


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From: Keith OgorekSent: Thursday, May 17, 2012 6 :40 AMTo: Tracey RosengraveSubject: Re: Author Solutions, :Inc. Employee Cries `Scam'

Aie c-¡investigating. Hard to prove and without confession Jr evidence we can't do much. We think it mighteven be artex employee posing- as an employee. Unfortunately j/ fiLFr best "sicti£ii? is to flood the web wl';;h good r:;.ils and iäí':ot"E? her.

From: Tracey RosengraveSent: Thursday, May 17, 2012 05 :23 AMTo: Keith OgorekSubject: FW: Author Solutions, Inc. Employee Cries 'Scam'

Assuming you kr.C}w but on tilg 15`1' an employee made a very negative comment on her biog.

From: Athena CatedralSent: Wednesday, May 16, 2012 8 :11 AMTo: ASI -Cebu Imprint Managers; Tracey RosengraveSubject: Fw: Author Solutions, Inc. Employee Cries 'Scam'Importance: High

Disgruntled ASI employee hates Keith, Kevin and the piar.t, in the Philippines. Highlights include meltdown of royalties.,?S,

scam o:`marketing "'".rvi.C.F.:rr and not taking author complaints seriously. Unfortunately ?i true.

The new AH Nog rr:ir5ht help but this is targeting RI directly and ."";`i; in E+ef`erc".`:

Might be worth looking into

From: Churchill LucenoSent: Wednesday, May 16, 2012 02:35 AMTo: Athena Catedral; 'Athena Catedral' <Athena.Catedral @Xlibris.com>Subject: Author Solutions, Inc. Employee Cries 'Scam'

Hi Te,

Latest post from Emily Seuss: httpj /blo_g_emiysu Pss. comj2012/{) 5/ 1Jáuthor- sólutions_inc- employee_cries-scam,/

Author Solutions, Inc.'s customers- particularly those self -publishing under the iUniverse imprint-have beencrying 'scam' for years now, but on Thursday an anonymous employee stepped forward here on Suess's Piecesconfirming that the company's royalty system is "in meltdown" and calling the marketing services offered bythe company "the big scam."

Posting with the screen name Atatiry a.t AS, the anonymous writer says, "You folks havee no idea how deep thedeceit runs at Author Solutions." The comment came in response to a series of o posts about thedeceptive practices of iUniverse and its parent company, Author Solutions.

ongoing

Author Solutions, which maintains offices in Bloomington, Indiana and the Philippines, has acquired a numberof self -publishing imprints in recent years in addition to iUniverse including Author House, Xl_ibr:is andTrafford.

Considered to be vanity presses, these and other self -publishing companies offer print -on- demand publishing

Confidential AS_00056091


for writers who simply don't want to publish traditionally or have not had success finding a traditionalpublisher. According to V /riter beware®, a committee created by the Science Fiction & Fantasy Writers ofAmerica, "The average printed book from a POD service sells fewer than 200 copies, mostly to `pocket'markets surrounding the author -friends, family, local retailers who can be persuaded to place an order -and tothe author him/herself."

Angry at ASI confirms suspicions that aspiring writers are often pushed to buy overpriced publishing packagesand add -on marketing services by the sales teams of Author House and iUniverse who work out of the sameIndiana office. "Sales people brag about pushing customers to overextend themselves, promising them theworld, laughing about how they'll probably only sell a dozen copies," the employee writes.

Keith Ogorekk;<.i:"::a;

,.. "r' ..... ......... . .. . ,..'"..4........

. ..

The whistleblower also calls out Kevin Weiss, President and Chief Executive Officer, and Keith Ogorek, SeniorVice President of Marketing, specifically for their lacking leadership. "Authors are regularly ridiculed for howbad the covers /content can be," Angry at ASI writes, adding, "Keith Ogorek has a shelf of the `worst' books inhis office that he laughs about."

These comments in particular lend credibility to earlier accusations that the folks at iUniverse don't takecustomer complaints seriously. And Angry at ASI's description of the workplace environment just might shed alittle light on why customer service reps are accused of being rude to authors. "I've never seen such ademotivated, miserable office," Angry writes, "probably because a lot of us feel terrible about what we'redoing."

COW:1%1E,ri,l.,:

You folks have no idea how deep the deceit runs at Author Solutions. I work there, and every day, I getsmacked in the face with what seems like fraud happening. That's my legally- neutral phrasing. I've never seensuch a demotivated, miserable office, probably because a lot of us feel terrible about what we're doing. Sue, Iknow who your husband is, and though he may be behind requesting you as a book review target, he's not thereal problem there.

The royalties system has always been a mess, but now its in meltdown. They know they're not tracking themwell.

That's pennies compared to the big scam at Author Solutions: Marketing Services, Sales people brag aboutpushing customers to overextend themselves, promising them the world, laughing about how they'll probablyonly sell. a dozen copies. Then customer service ignores them and tries to squeeze them for even more.Sometimes people pay $80,000 or more and barely sell a thing. Authors are regularly ridiculed for how bad thecovers /content can be, and Keith. Ogorek has a shelf of the "worst" books in his office that he laughs about.Very respectful.. The biggest irony is that this is supposedly such a Christian organization, with partnershipimprints with Thomas Nelson, Hayhouse & Guideposts.

I often think about testifying against them in lawsuits, and I think I have to. I might not pound my fist againstthe table like Mr. Christian / Keith Ogorek, but I know the difference between right and wrong. Beyond thespineless Keith Ogorek is the CEO, Kevin Weiss, who has an online reputation showing that he does not have a

Confidential AS_00056092


firm grasp on moral guidelines, in a number of arenas.

For your enjoyment, here is a full list of the brands ASU Bertram Capital owns and runs out of a giant plant: inthe Philippines and two small offices in Indiana:

BOOKS:Author House Sales people sit three feet from iUniverse sales peopleiUniverse Sales people sit three feet from Author House sales peopleXLibrisTraffordPalibrio Spanish -speakingAbbott Press Writer's Digest- branded lineBalboa Hay House- branded lineWestBow Thomas Nelson -branded lineInsp.iri.ng Voices Guideposts Magazine- branded lineLegacy Keepers private books, not selling

MODERN MEDIA:FuseFrame Previously Author Solutions FilmsPitchfest Authors pay to come pitch their stories for film adaptationsAuthor Learning Center - online learning tool hoping you'll forget to cancel your credit card after the free trialendsWordClay Abandoned ebook imprintBookTango New ebook imprint that's a mess

05/10/2012 12 :32 AMCheers.

Churchill LuceilQ5.:. ..,. :... . .. ;......

P:+í'.!t!6+,5.:,, 'fi`.,

Confidential ÁS_00056093


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GISKAN SOLOTAROFF ANDERSON & STEWART, LLP

Firm Biography

Giskan Solotaroff Anderson & Stewart, LLP is a firm with significant experience in complex litigation involving consumer fraud, antitrust, and employment discrimination litigation in state and federal courts, on behalf of plaintiffs and often involving class actions.

OREN GISKAN is admitted to practice in the states of New York (1993) and

Illinois (1990). He received his law degree from the University of Pennsylvania in 1990 and his Bachelor of Arts from the University of Chicago in 1986.

Mr. Giskan served as lead class counsel in In re Check Loan Litigation, N.D. Cal.

09-md-02032 ($100 million settlement of claims related to increase of minimum monthly credit card payments); Cohen v. JP Morgan Chase & Co. and JP Morgan Chase Bank, E.D.N.Y. 04-cv-4098 (settlement of deceptive claims related to charging of mortgage fee resulting in a recovery of 100% of damages for class members); Sebrow v. Allstate Insurance Company, E.D. N.Y., CV-07-3929 (settlement of deceptive practice claims regarding non-renewal of homeowners insurance policies), Education Station v. Yellow Book USA, Superior Court of New Jersey ($70 million settlement of false advertising claims), Danielson v. Rockford Memorial Hospital, Circuit Court of Winnebago County Illinois, No. 01 L 139 (settlement of patient billing claims under the Illinois Consumer Fraud Act), and Truschel v. Juno Online Inc., Supreme Court of the State of New York, New York County, No. 01/602486 (settlement of consumer protection claims regarding failure to provide Internet service). He is actively litigating several other consumer fraud actions throughout the country as lead or class counsel against companies including, LG Electronics, Apple,and others. Prior to forming the firm of Giskan & Solotaroff in October 2002, Mr. Giskan worked for the firms of Prongay & Borderud, the Law Offices of James V. Bashian, P.C. and Zwerling, Schachter & Zwerling, LLP, in New York, New York where he was actively involved as lead counsel for plaintiffs in many securities class action lawsuits including: Hal Bloomberg Trust v. Gencor Industries, Inc., M.D. Fla., 99-106- Civ-Orl; Kaplan v. Prins Recycling Corp., D.N.J., 96 Civ. 2444; In re Lady Luck Gaming Corporation Securities Litigation, D. Nev., CV-S-95-266-LDG (RLH); In re American Pacific Securities Litigation, D. Nev., CV-S-93-00576-PMP; and In re Foodmaker/Jack- in-the-Box Securities Litigation, W.D. Wash., No. C93-517WD. He also actively participated as one of the lead counsel in coordinated nationwide class actions against America Online Inc. regarding its deceptive billing practices.

From 1990-92, Mr. Giskan was an associate with Jenner & Block in Chicago,

Illinois where he focused on securities and general commercial litigation.

JASON L. SOLOTAROFF is admitted to practice in the State of New York. He is a 1990 graduate of Columbia Law School where he was an Editor of the Columbia Law


Review and a Harlan Fiske Stone Scholar. He graduated from the Johns Hopkins University with General Honors.

Mr. Solotaroff clerked for the Hon. Eugene H. Nickerson, United States District

Court for the Eastern District of New York. Following the clerkship, Mr. Solotaroff was a Staff Attorney at the Legal Aid Society, Criminal Defense Division from 1991 to 1993. In 1993, he joined the Society’s Federal Defender Division. As a federal defender, Mr. Solotaroff represented clients in a wide variety of matters including complex white-collar cases. Of the nine clients he represented in criminal trials, six were acquitted and one received a partial acquittal.

Mr. Solotaroff entered private practice in 1997. Since 1997, he has devoted a

substantial part of his practice to the representation of plaintiffs in class action matters. Among the cases in which he has had substantial responsibility are consumer class actions against Juno Online Inc., Lincoln Security Life Insurance of New York, Verizon Communications, American Express and antitrust class actions against Abbott Laboratories, Bristol-Myers Squibb and Astrazeneca Inc. He also represents individuals in employment discrimination and criminal defense matters.

CATHERINE E. ANDERSON is admitted to practice in the States of New York

and New Jersey. She received her law degree from New York University School of Law in 1995, where she was an editor of the Journal of International Law and Politics and a participant in the Human Rights Clinic. She graduated magna cum laude from Colgate University in 1992, where she was elected Phi Beta Kappa. Ms. Anderson has specialized in consumer class actions and employment law.

In 2007, Ms. Anderson settled a class action on behalf of approximately 163

members of the defunct Whole Arts Group Health Insurance Plan. As part of the settlement, Ms. Anderson obtained payment of the outstanding medical bills and reimbursement of out of pocket medical expenses on behalf of the consumer class. See Russo v. WholeArts Foundation, Inc., et al, Index No. 603037/03 (KM) (New York Supreme Court). In 2008, Ms. Anderson was co-lead counsel in a consumer class action against Allstate Insurance Co. for violation of the New York General Business Law Section 349 in failing to renew consumer’s Allstate home insurance policies unless the consumer also agreed to buy auto insurance from Allstate. The action resulted in a settlement which provided injunctive relief to the class comprised of over 54,000 homeowners. As a result of the settlement, members of the settlement class were able to obtain precisely what they had been wrongfully denied: renewal of their Allstate home owner insurance policies without having to purchase additional policies. See Sebrow, et al. v. Allstate Insurance Co., et al. 07 CV 3929 (FB)(RLM) (E.D.N.Y.). Ms. Anderson was lead counsel in a consumer class action against JP Morgan Chase, which alleged violations of the Real Estate Settlement Procedures Act (“RESPA”) and New York General Business Law Section 349 for charging home owners a “post closing fee”, an alleged junk fee, on their mortgage. The litigation recently resulted in the creation of a settlement worth more than $20 million and provided approximately 70,000 home owners with the opportunity to be reimbursed 100% in cash, plus interest, for any


post closing fees which the consumers paid to Chase. See Cohen v. JP Morgan Chase & Co. and JP Morgan Chase Bank, 04-cv-4098 (ILG) (E.D.N.Y.).

Prior to joining Giskan Solotaroff Anderson & Stewart LLP, Ms. Anderson was

associated with the firm of Wolf Popper LLP, where she served as lead or co-lead counsel in the following class actions which obtained a substantial recovery for the class: Garcia v. General Motors Corp., Docket No. L-4394-95, Superior Court of New Jersey, Bergen County (obtaining a nationwide settlement of $19.5 million in cash on behalf of a consumer class comprised of 2.6 million owners of GM W-Body cars with allegedly defective braking systems); Whipple v. Happy Kids, Inc., Index No. 99- 603371, IAS Part 10, Supreme Court of the State of New York, New York County (obtaining a settlement providing, among other things, an increase of $0.50 per share on behalf of the Happy Kids public shareholders in a revised buyout transaction); In re Segue Software, Inc., Sec. Litig., C.A. 99-10891-RGS, United States District Court, District of Massachusetts (obtaining a cash settlement of $1.25 million on behalf of a class of all persons who purchased the common stock of Segue Software, Inc. during the period July 14, 1998 through April 9, 1999); Jonas v. Aspec Technology, Inc., Lead Case No. CV775037, Superior Court of the State of California (obtaining a settlement with a $13 million cash component and a stock component of 1.75 million shares of the common stock of Aspec Technologies, Inc. for a class comprised of all persons who owned Aspec common stock during the period April 27, 1998 through June 30, 1998); In re Ugly Duckling Corp. Shareholders Derivative and Class Action, Consolidated C.A. No. 18843, Delaware Court of Chancery, New Castle County (obtaining an increase from $2.51 per share to $3.53 per share cash in going private transaction on behalf of a class comprised of the Company’s minority shareholders, resulting in an aggregate cash benefit of more than $4.7 million).

DARNLEY D. STEWART joined Giskan Solotaroff Anderson & Stewart as Of

Counsel on December 1, 2007 and became a member of the firm on March 1, 2008. She is admitted to practice in the States of New York (1993) and Massachusetts (1990). She graduated from Princeton University in 1984 and received her law degree from Northeastern University School of Law in 1990. After law school, Ms. Stewart served as Law Clerk to the Honorable R. Ammi Cutter and the Honorable Mel. L. Greenberg of the Massachusetts Court of Appeals.

Ms. Stewart specializes in employment class and collective actions and has

prosecuted high impact cases against a number of large companies, including Ford Motor Company, Gerber, Coastal Corporation, First Union Bank, National Car Rental, General Motors, Nissan, Toyota, and Bank of America. In connection with her work on Coleman, et al. v. General Motors Acceptance Corporation, Ms. Stewart was named as a finalist for “Trial Lawyer of the Year” in 2004 by the Trial Lawyers for Public Justice. She has also been named as one of the leading 500 plaintiffs’ lawyers in the country and one of America’s top 1500 litigators by Lawdragon magazine. In addition, Ms. Stewart was selected for inclusion in the list of 2006 and 2007 New York Super Lawyers.


Prior to joining Giskan Solotaroff Anderson & Stewart, Ms. Stewart was a partner at the law firm of Bernstein, Litowitz, Berger & Grossmann LLP. At Bernstein Litowitz, Ms. Stewart was the partner in charge of the employment and civil rights practice, and also prosecuted a number of securities class actions, including Ohio Public Employees Public Retirement System, et al. v. Freddie Mac, et al. , C.A. 03-CV-4261 (S.D.N.Y.) (obtaining a settlement of $410 million) and In re Williams Securities Litigation, Case No. 02-CV-72 –SPF (N.D. Ok.) (obtaining a settlement of $311 million).

Ms. Stewart is a member of the Class and Collective Action Committee of the

National Employment Lawyers Association and serves as President of the Executive Board of the New York affiliate (NELA/NY) of that organization. She is also plaintiffs' Co- Chair of the Technology in the Law and Workplace Committee of the American Bar Association’s Labor and Employment Section. Ms. Stewart lectures regularly on employment class action issues, and has frequently commented in the media, including the Wall Street Journal, the New York Times, National Public Radio and the Today Show, regarding issues raised in a variety of employment discrimination cases.

From 1991-97, Ms. Stewart was an associate with Schulte Roth & Zabel, LLP, in

New York, where she focused on securities, employment and general commercial litigation.

O. ILIANA KONIDARIS

O. Iliana Konidaris, an associate at Giskan Solotaroff Anderson & Stewart LLP,

represents plaintiffs in employment and civil rights cases as well consumer class actions. During law school, Ms. Konidaris worked at Washington University’s Civil Justice Clinic and at the Legal Assistance Foundation of Metropolitan Chicago. She also co-lectured an undergraduate feminist legal studies course at Washington University, covering employment discrimination, global feminism, and aspects of family law.

Before law school, Ms. Konidaris taught English in the public schools in the South of France that served predominantly immigrant families and worked at an immigration non-profit in New York City.

Ms. Konidaris obtained her B.A. from Haverford College in and completed her J.D. at Washington University Law in 2009. She is admitted to practice in New York State Court, as well as the Eastern and Southern United States District Courts.

RAYMOND AUDAIN

Raymond Audain, an associate at Giskan Solotaroff Anderson & Stewart LLP,

represents plaintiffs in employment and civil rights cases and consumer class actions. Mr. Audain is a graduate of the University of Pennsylvania Law School. From 2007 to 2008 he clerked for the Hon. Ronald L. Ellis of the United States District Court for the Southern District of New York. From 2008 to 2010 he clerked for the Hon. Robert L. Carter of the United States District Court for the Southern District of New York. Mr. Audain is a member of the Bar of New York.


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declaration of oren giskan in support of plaintiffs’ … · index no. 13-cv-2801 (dlc) ecf case...

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