Class Action Lawsuit against Tate Publishing is our dream - Tate Publishing
My mother and I co-wrote a cookbook and sent portions of it to Tate Publishing in 2013. We had excellent communication and interaction from the moment we contacted them until the day we signed the contract, which was March 17, 2014. Our Acquisitions Editor was competent and helpful, but that’s the only good thing I can say about Tate. Once we signed with Tate, we were assigned different representation that did almost nothing for us.
This is the BBB complaint we submitted to Oklahoma’s BBB on 2/4/16:
Multiple issues from production to distribution; chief of which are books not being available, royalties not received, several breaches of contract. We ordered 100 author copies of our book on 6/16/15. We signed a contractual agreement for a $23.99 glossy paged book and they were to arrive in 5-6 weeks. After 10 weeks (no notification of delayed shipment), we got the 100 books wrong (not glossy paged). It took another month to get the correct 100 books, which put us after the national release date and involved 5 canceled book signing events.
The book was to be made available on Amazon.com and barnesandnoble.com specifically per the press release and all promotional items (created and sent by Tate), and in general per our contract (Section IV Subsection 3 a. states that it will “be available in bookstore systems nationwide and on internet sites such as amazon.com and barnesandnoble.com”). Within that same subsection Tate discusses their relationship with distribution centers and other well known chains alluding to the fact that our book will be available in them. As of today, the only place that our book is eligible for purchase is direct through Tate’s website. Although the book is listed on Amazon, it has never been available there. Until 09/11/15 it was listed for pre-order only. After a phone call to Amazon corporate, we were told it was because Tate had sent them nothing and they couldn’t sell something they didn’t have. After that, we contacted Tate via e-mail and phone without a response for a week (I have the written documentation of this). The situation was changed to have the book image, but it was changed to “Currently out of stock” and has remained that way ever since.
In addition to our books not being available anywhere agreed upon, Section II subsection 4 b. of the contract states that we will be paid 40% royalties on all books sold via Tate Publishing’s warehouse. It states that we are to receive that “quarterly by the end of the month following the quarter in which those sales occurred.” We have yet to receive a single check or dollar amount, even though our book has sold something every quarter over the last 3 quarters (2015 Quarter 2, 2015 Quarter 3 and 2015 Quarter 4). Per the agreed terms of the contract, 10 softcover books and 2 ebooks (which, according to Tate is what has been sold, although that seems like a questionably low number based on what customers have said to us) should have totaled $108.75 (although on the quarter 2 report for the ebooks, Tate incorrectly calculated the total for $2.40 less than it should be).
Something else we feel is a breach of contract is the retainer we paid to cover the cost of the marketing representative. We had to pay $3990.00 for the rep, and we have had nothing but issues and problems and lack of communication with the supposed rep. Near every day we get sale offers to buy our own book, even though we’ve never gotten a bulk order on time, we aren’t getting paid for books sold and our books have not been made available anywhere other than at Tate. We only get that $3990 if we sell 1,000 books, but we clearly can’t sell books if they aren’t made available. We are losing money because of this and not being given the opportunity the contract gave us to get out $3,990 back.
The marketing representative has also botched 3 events – the only events that were scheduled for us by Tate. We were given a notice for a potential event on 9/26/15 in Sault Ste. Marie, MI that we were unable to attend. The event was pushed through anyway without our notification or consent. We only found out during a google search and it was left to us to correct the mistake Tate made. They also notified us of 2 events scheduled 10/9/15 and 10/10/15 in Canada. We called the businesses, only to find out only the 9th was agreed on. Again, we were left to correct the mistakes. In addition, we were unable to sell our books in Canada due to international sales regulations. We have each written piece of correspondence between Tate and ourselves that are relevant to these issues, and they can be provided.”
We got a notification on 7/3/16 from the BBB stating, “This complaint has been closed without a response from the business.” Extremely frustrated, we contacted Tate and our lawyer. Our lawyer looked over the contract and found several breaches of contract. It took Tate until the 11th to respond to us and give us excuses that were flat out lies. On 7/22/16 they responded to the BBB concerning the complaint stating that all was resolved:
“To Whom it May Concern:
We have been diligently working with Ms. Heet in order to resolve her issues regarding the publishing of her book. Included are ten pages of notes depicting all correspondence, such as telephone calls and emails with the author and Tate staff.
To address Ms. Heet’s first complaint regarding the delivery of books. Tate has recently as last month partnered with a new printing company, LSI, in order to fill our authors orders in a more precise and timely manner.
Regarding her royalty checks, incorrect data was the cause of checks not being delivered, to date this issue has been resolved. We are actively working to resolve the issue regarding the book availability with vendors such as Amazon and Barnes and Noble.
As you will seen in the notes attached, Ms. Heet’s Author Service Representative, Jan Cara Quinones has been in continual contact with her regarding her complaints.
127 Trade Center Terrace”
This was the first we had ever heard of Mark Mingle. On Tate’s staff website, Vice President is not listed as his title. Also, when Rita Tate referred to him in an e-mail to us after this, she referred to Mark as the Director of Marketing. Terry Cordingley is supposedly the Director of Marketing. Our response on 7/27/16 was a very obvious refusal:
“To whom it may concern:
We are rejecting the “solution” that Tate has recently submitted in response to the complaint made for myself and coauthor, Gail Van Ess. Below you will find detailed reasoning and explanation why.
As for diligently working with us to resolve our issues, we feel that is an exaggeration. We have been bringing these issues to their attention since July of 2015. We were not contacted once from February 5 to July 11 of this year by anyone representing us. The reason for their contact on July 11, was due to me having written another e-mail threatening legal action for their fragrant breach of contract after the BBB had to close the complaint due to no response from Tate. That is not diligence, that’s negligence.
Mark Mingle stated that there were ten pages of notes attached to this complaint. For one, the file was conveniently corrupt so we saw nothing other than the letter. I have brought this to Tate’s attention and no one seems willing to give us those mysterious ten pages or even acknowledge my request. Secondly, notes of correspondence? I can only assume all ten pages are direct print outs of e-mails we have personally sent them as there is never much of a response from Tate, either verbally or physically; certainly not enough to fill ten pages. If it is our direct e-mails, we don’t care about them. We have them all already. In fact, we have saved each and every response and initiation of contact from both Tate and ourselves.
We don’t accept the excuse of switched printing companies. We were told a year ago that that was happening due to the monumental errors and delays. If it took them a year to switch, that’s incredibly unprofessional on their part. Also, as I have been pouring over our contract and researching author issues with Tate, I found several authors experiencing exactly what have or are experiencing. One author in June of 2016 (one month ago) stated his issues with the delivery of his book that could have been our words from a year ago. Tate gave him the same response they gave us. That doesn’t sound like a switch to me. If they had switched printers, they have an uncanny ability to pick the poorest of printers time and time again. That doesn’t reflect on the printers. That reflects on Tate.
We vehemently protest their “resolution” to our royalty check issue. First of all, it was not “incorrect data” that caused the checks to not be delivered. The checks were never even printed. There was no attempt to print them and there couldn’t have been as it was our own ASR who told me via phone and e-mail that they couldn’t get done because they never had Gail’s SSN; a SSN that was given via phone March of 2014 at the same time that I verbally gave mine. Both SSNs were given during the same (conference) phone call with Alan Duffle, and somehow mine is the only one that stuck. To say that there was an attempt to get them to us if a blatant lie.
Mark Mingle suggested that they didn’t have accurate addresses to send the checks to, which is also a blatant lie. Per our ASR, they apparently didn’t have Gail’s address on file so couldn’t send the checks. They had her address in August and October when they sent her books. Where did it go? She hasn’t moved in over 15 years. Also, we had sent them her address via e-mail twice (this is documented, and even our ASR contacted us to say that she found the e-mail we sent her the address in – last year) and a third time on July 13, 2016.
As it concerns my address, our ASR tried to tell me that they didn’t have my new address because I moved. I moved on April 9, 2016. Tate had already been out of contact with us for a minimum of two months at that point and we should have received four royalty checks prior to my move. I moved during the quarter that just ended – Quarter 2 of 2016. We haven’t even gotten a report on that quarter yet, so the address they had on file for me (that they obviously had since they sent me books) was correct until April 9, 2016. Quarter 2 2015 should have been sent July 2015; Quarter 3, 2015 should have been sent October 2015; Quarter 4, 2015 should have been sent January 2016; and if we had ever gotten a report for Quarter 1, 2016 (which we never have, we in fact have received NOTHING for 2016 even though Amazon both received and sold out of our product in 2016) it would have been sent April 2016, but since we didn’t get a report, that shouldn’t have been an issue. Of course, those dates are laid out in the contract which Tate has been rather lax in complying with.
Also, we have yet to receive a single royalty check so we will absolutely not call this issue resolved. That’s laughable.
Mark stated that they are working to make the book available with online vendors. Why was this attempt not made in the several, several e-mails and notifications we sent them since September 9, 2015? We brought it to their attention time and time again, and they have waited nearly a year to have it figured out? Terry Cordingley sent me an e-mail stating that it was now available at B&N, but our issue is the contract violation with waiting almost a year to make it happen. We also got a marketing report stating that our book was made available for e-books this month. That should have been done on September 8, 2015 per contract; again, another flagrant breach. I have asked why this is, and I have (not surprisingly) not received a response.
That our ASR, Jan, has been in constant contact is a cosmic joke. Jan has sent two e-mails and called once since July 11. That’s 3 pieces of contact in 16 days. The e-mails I sent to her trying to ask her questions have been unanswered by her since July 14. That’s 13 days of no contact. This is, once again, an outright lie.
It is for all the reasons listed above (and so many other breaches of contract, which I am compiling and will be more than happy to supply once finished) that we reject this “solution.”
We do not have a marketing team, and past September, never have. We have been given a website which we have little use for, a clip that was very little shown and a Facebook page that was given to us EIGHT MONTHS after the book was released. We also have no use for this Facebook page as I, myself, created (in ten minutes) in June of last year. Mine looks better and has more followers, so that is the one we will maintain. There were three events scheduled for us through Tate; one we never agreed to nor were we notified it existed. We found it during a Google search for our book and had to call the business and cancel due to one of us being out of town. There were two they scheduled for Canada in October that was wrong from start to finish. The owner of the establishments was only aware of one of the events and only wanted one event. The other issue with these was that we weren’t even allowed to bring our books to sell in that country, we had to leave all 100 of them at customs and sit at a table with nothing but ourselves and some book marks. Those were the only “three” events scheduled for us by Tate.
Therefore, we are still requesting our marketing retainer back. We don’t have a marketing team or a publicist and contractually, that is what the $3990 was for. If that’s not what it’s going towards, Tate is contractually obligated to return that money. We are also demanding our royalty checks that, by law and contract, Tate owes us. It has been over 2 weeks since they acknowledged completion of all information to print them, yet we haven’t received them.
We await a legitimate solution and resolution.”
On 8/11/16 the BBB contacted us again to say that the complaint had been closed as unresolved. On 8/22/16 Tate responded to the complaint:
” Whom It May Concern,
In responding back to Ms. Heet regarding her rejection of resolution to her original complaint filed with the BBB. Although Ms. Heet states that it is misconception that Tate has been diligently working to resolve her complaints and issues, we have been actively pursuing a resolution to her complaints. She states that NO ONE that represents herself or Ms. Von Ess within Tate Publishing has not had any contact/communication to either of them since February 2016. Although there has not been direct communication from Mr. Cordningley, Jan Cara Quinoes (whom is the ASR/Assistant to Marketing Representative) has been in contact with Ms. Van Ess. [I omitted the “documentation” they supplied but have it and am able to produce it if desired.] We do apologize that the internal notes/exhibits were not applicable for Ms. Heet’s review. In no way did we maliciously intend for the file to become damaged. We have been experiencing numerous errors with the new system that the BBB has implemented through their website. We are more than happy to supply the internal notes to Ms. Heet and Ms. Van Ess.
Regarding Ms. Heet and Ms. Von Ess’s complaints and issues surrounding book shipments, Tate has partnered with the largest printing company as this June. This partnership has given Tate Publishing the ability to have the fastest print turnaround in the publishing industry and will ensure to resolve all current and future author issues surrounding deliveries and shipments of book orders.
Addressing Ms. Heet and Ms. Van Ess issues regarding royalties (payments and statements), We currently do not have any sales data to report, and as we mentioned in our initial response,we had to update our accounting database to include and reflect Ms. Heet’s correct address. As future sales occur, any royalties will be sent to this address on file, and we will ensure that she is paid for any and all books reported sold. As sensitive information is located with the sales report, this document is available and will be sent directly to Ms. Heet and Ms. Von Ess.
We do apologize for any miscommunication on our behalf and our excited to move forward with Ms. Heet and Ms. Von Ess project.
Tate Publishing and Enterprises, LLC”
On the same day (8/22/16), we responded with another obvious refusal.
“BBB and Tate Publishing:
First of all the second author’s last name is VAN ESS not Von Ess, but this mistake has been made before (on our press release which took over 24 hours to correct) and it’s only written to the authors so it’s not as big of a mistake.
In regards to our belief that Tate is not being as diligent as the situation requires, it’s a belief and a feeling. In my rebuttal I used phrases like, “we find it hard to believe.” There is no way for us to make that determination with absolution not being at Tate. What we’re basing it on are the results (or lack of) we are (or are not) seeing on our end. Did Tate make the book available for e-download? Yes. Should it have been done in September of 2015 instead of July of 2016? Contractually, yes. Did Tate stock our books at Amazon? Yes. Was it when they were contractually obligated to? No. Our book was to be available there on its release date and it wasn’t until February of 2016 and only after we fought with them to get it there for 5 months. Our biggest problem with this “diligence” is that there is no movement until we put up a fuss. Even then there’s a 50/50 chance that things will be completed. Even now, questions to our ASR and our “marketing rep” have gone unanswered. Not all of them, just the ones we have to keep asking over and over again. We expected our publishing company to be diligent as it pertains to the sale and production of our book simply because it’s their job, not because their authors have demanded they do what they are contractually required to do.
I stated that we hadn’t had contact with Terry Cordingley since February 2016 aside from the sale offers that are automatically sent out via group message. I did state that we hadn’t heard from Jan since November of 2015. I am supposed to be the point of contact for Tate. We’ve established this and reestablished this more than once with Jan and Terry. Any e-mail that is sent to my Gail needs to have me on it, even if it’s just Gail who wrote originally. We had it set up this way because I am the one more in my e-mail and I understand sending and cc’ing. Gail does not. I don’t always get the e-mails Gail sends because I haven’t been cc’d. She has sent a few to me and Jan (the same e-mail sent to two people), but when Jane replies it only gets sent to the author. On my end it appears that she hasn’t responded to a question asked when that happens. When our ASR responds to Gail’s inquiries, it is her job to make me aware of HER response to it (not Gail’s response, Jan’s) because I am the point of contact. We were told by Tate they wouldn’t be writing and responding to us individually so we needed only one of us to be that contact; it’s why we set me up as that point of contact. So, while one of the authors may have heard from Jan, the point of contact hadn’t heard from her since November 2015.
On April 15, it looks like Jan asked Barnes and Noble to update the picture of our book. That’s seven months after the release date, and 7 months after we asked them to get our book on the site and get a picture up. We asked them more than once to get those things done and now I see it wasn’t even looked into until 7 months after we tried getting it done. This is one of the results we factor into our belief Tate isn’t as diligent with us as they would like to think. Maybe it’s miscommunication amongst them, maybe they assume someone else is getting it done, we don’t know. What we do know is this is usually how it goes for our book at Tate.
I stand by our statement that we don’t have a marketing rep besides the fact that we get e-mails once every few months that are auto generated and telling us of activity. The reason we stand by this is because we have asked them on more than one occasion to stop looking into things in that area. We have asked them more than once to look into Wisconsin. At one point Jan had told us it automatically looks for venues within a certain distance from the author. We pointed out at that time one of the authors lived in Wisconsin. We noticed two things: the marketing report is automated and so is the search for venues. If we have someone scheduling events and looking for places in an area we said we’d be unable to make it to, we don’t consider that a rep. A rep represents their author. Doing the opposite of what we are able to do is not representing us. As previously stated, we made things very easy for Tate by giving them five pages worth of information in regards to proprietors and venues, per their request, none of which has been used.
I would like the internal notes sent direct to me, yes. I would like to be made aware of what Tate has been doing. In fact, we have been requesting more frequent contact and more details on what they’ve been doing with our book. We made it known very clearly we wanted daily communication but settled for weekly communication on what Tate is doing for problems and the book in general since July of 2015. That contact was upheld for a few weeks before disintegrating into sporadic contact.
Book shipments weren’t a huge deal in our complaint, but they are the reason we don’t want to do book signings at a venue that doesn’t purchase their own copies and why we won’t order from Tate with their “special” offers. Our proof in this is the numerous times we got our book wrong (and each time we were told it was a problem with the printers), and the more than double wait time to get our books in the first place. Our faith has been somewhat broken in this regard so we can’t put a lot of stock in the idea that this new printer will solve all their issues. When we had problems getting our books in July 2015, we were told they were switching printers then, too.
I’m trying to be professional as it pertains to the royalties, but I’m very, very upset about this situation. If you don’t have current sales data to report and have none since December 2015, my address should never have been an issue. I don’t know how to make you understand that that is a 100% false excuse. I did not change my address until quarter two of 2016. By that time, according to law and our contract, we should have already RECEIVED THREE royalty checks. I laid out the dates in our refusal of Tate’s “solution.” My address should NEVER have been a factor because Tate stated that there have been no sales report this year so far (even though Amazon sold every copy of our book they had from February to June, so we know for a fact there were sales, but understand Amazon may not have sent them a report yet however unlikely that is) and I did not move until this year!! This is extremely frustrating to have to continue to defend this. Here is a break down:
Quarter 2 2015, sales made, sales report issued, royalty check SHOULD have been sent July 2015. MAUREEN STILL AT ADDRESS ON FILE.
Quarter 3 2015, sales made, sales report issued, royalty check SHOULD have been sent October 2015. MAUREEN STILL AT ADDRESS ON FILE.
Quarter 4 2015 sales made, sales report issued, royalty check SHOULD have been sent January 2015. MAUREEN STILL AT ADDRESS ON FILE.
Quarter 1 2016 sales made, no sales report issued, theoretically no royalty check sent until sales receipts acquired. MAUREEN MOVED MID APRIL in Quarter 2 2016.
And yet, even though Tate’s reasoning is that they only had to update their address book with my new address, they’ve had that address for a month and a half and STILL NO ROYALTY CHECK. Not only is the address claim bogus according to law via our contract, it still hasn’t been rectified after Tate declared the situation resolved. That is legally our money for a product we created and Tate can’t seem to get it together to get it to us. Honestly, this is the biggest reason we have lost all faith in Tate; all. Tate keeps saying they will insure we get paid, but we have been selling books for 14 months now and haven’t seen a single dime.
We don’t want excuses anymore. It’s feeling a lot like their word against ours and our word against theirs. We have a lot of documentation to back up each complaint we made and we tried to resolve this issue without going to the BBB. We filed with the BBB as a last resort, and it appears we may need to take another step.
Again, we are requesting the full reimbursement of our marketing retainer for a total of $3990.00 for each reason already stated, as well as every single royalty owed us since June of 2015, along with every single sales receipt and report since June of 2015 up until today. Because of how Tate has handled every situation from September 2014 to now, we can accept no less.
We understand this will mean an end to our contract and so an end to Tate Publishing printing and distributing our book. If necessary, we will compile a list of other willing authors to join suit with us so we can all get what Tate owes us. We have no desire to see it come to that point, but if that’s what it takes to get what is legally and contractually ours we have no other choice.
Not hearing anything from them whatsoever, our lawyer worked with us to try to garner some action. On 9/9/16, after continued radio silence I contacted Tate:
We have been trying to handle and deal with you professionally and respectfully, but you have, so far, been unwilling to comply.
We submitted a complaint to the OK BBB in February due to refusal to pay us our royalties due. You did not respond to the complaint until July 22 when they contacted us to say you never responded (they closed the complaint on 7/3 for that reason). Even then, it took me contacting you on 7/7 before you did anything. When you responded to them on 7/22, Tate told the BBB the issue was resolved. We officially rejected that on 7/27, due to the falsity of that statement. On 8/11, the complaint was closed AGAIN due to lack of response from Tate. On 8/22 you responded to our rejection stating, again, that the matter was resolved. We, of course, rejected it on the same day (8/22) because the entire rebuttal rang false.
It is now September 9 and we have yet to receive a single penny from Tate Publishing for our 7 quarters of sales. We are currently in our 8th quarter with Tate. On July 13 we were told Tate had everything they needed to send us our royalties. That was 4 days shy of TWO MONTHS ago. Our lawyer sent you a letter (which I have included for your SECOND look) telling Tate to pay us our royalties in full, give us every sales receipt and report to date, refund our $3990.00 and give us leave from our contract due to flagrant and frequent breaches of contract. Tate was given 14 days to respond and the letter was sent 8/12/16. We gave you an additional 2 weeks and still we have heard nothing.
We have been in contact with some other authors who are currently experiencing what we are with you and they are equally as upset. They are willing to join with us to procure what we are legally and contractually entitled to. I have also CC’d our lawyer so he is kept aware of everything that is happening.
We have several pieces of documentation to support our claims and warrant a release from contract as well as a full refund of the money you were paid that has not been allocated as you were legally required to do.
We are expectantly awaiting your speedy response, a quick delivery of all our funds and a formal documentation declaring our release of contract with full repayment and distribution of all royalties in full. We understand this means that Tate will no longer produce and sell our product. ”
Rita Tate was being contacted every time we responded to them with issues and proof from June 2015 until this month. Only recently has she replied confused why she was being involved at all:
“Hello, Maureen – I received your note below copied to me. I am actually not involved in the production side of our business, (I am a writer for our celebrity clients) however, I am sorry that you are having issues you feel are unaddressed and I thank you for making us aware. I am confident that our Director of Marketing, Mark Mingle, or someone on his great staff, will look into each one and get back with you as soon as possible. I also know that we will be able to solve every concern to your satisfaction.
On a side note, I want to order a personal copy of your book – the subject of nutrition and a gluten-free diet is more relevant than ever and I look forward to reading it! Blessings today, Maureen!”
After she was contacted again after this, we received this e-mail from Rita:
“Well, again, I don’t know why I AM so privileged to get these notes from upset author. Is she getting responses needed guys? Is she being contacted directly and not just by phone? Let me know if I can do anything to appease situation. ”
We have approximately 150 pages of documentation concerning all contact (including proof of breaches in contract, complaints and responses, supposed resolutions and all missteps and repeated information). All of these documents are available upon request. We included the BBB correspondence because we felt it explained the situation in full.
To this day we have received no money from Tate Publishing; they’ve stopped responding to all correspondence and have ignored our lawyer’s requests. Because our lawyer is licensed to practice law in our state and not Oklahoma, he can only do so much in terms of legal action. At this time, we are trying to gather other Tate authors who have been denied their legal and contractual rights in terms of payments, publication and marketing. We were notified by another author that the attorney general in OK was investigating Tate, so our next step is to contact that office and see what actions we need to take to bring suit against them. It’s not something we want to do, but something Tate has made necessary by how they run their business. If you have any information to add please respond here.
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