View Full Version : Seeking Class Action Lawyer for suit against Fictionwise


advocate2
03-31-2010, 05:07 PM
I post this in the hope that some reader knows a Class action law firm which might be interested in bringing a contingency lawsuit against Fictionwise, a wholly owned subsidiary of Barnes & Noble, related to false representations made to folks who purchased memberships in the last 6 months. I, for one, volunteer to be a class representative.

Bilbo1967
03-31-2010, 05:20 PM
Yep, you've certainly provided enough information there to start engaging lawyers :rolleyes:

advocate2
03-31-2010, 05:26 PM
Bilbo,

The UK and the US have a major difference in allocation of legal fees. In the UK, if a party brings a lawsuit and does not prevail, the plaintiff is liable for the Defendant's legal fees. In the US such is not the case, hence the full docket's with contingency matters. The US has specific rules for Class Action cases.

Bilbo1967
03-31-2010, 05:28 PM
Bilbo,

The UK and the US have a major difference in allocation of legal fees. In the UK, if a party brings a lawsuit and does not prevail, the plaintiff is liable for the Defendant's legal fees. In the US such is not the case, hence the full docket's with contingency matters. The US has specific rules for Class Action cases.

I pretend no knowledge of legal matters, particularly in the US. I would expect a plea for help in a legal matter to contain a modicum of detail is the point I was making.

Graham
03-31-2010, 05:31 PM
The difficulty with this is at the moment you don't know that you are being disadvantaged by Fictionwise. Assuming they continue to provide discounts for the customers already in the Buywise scheme then you have no complaint. The fact that Fictionwise, along with all the other sellers, are being forced to raise some of their prices doesn't have a bearing on this.

At present it looks as though club discounts are being offered on the remaining stock. If, when the 5 agency publishers' catalogue returns, we find that no discounts are offered on those titles, and if this represents a large proportion of the books you might normally buy, in that case then you will have a reasonable complaint.

Graham

advocate2
03-31-2010, 05:36 PM
I just sent this to FW Customer Service:

Yesterday I checked my wishlist and had many titles. Today my wish list has collapsed and the titles available for purchase have been reduced dramatically. Prices on titles remaining, even with the Club discount, exceed the price available at the Sony EReader Store. Please explain this disruption at your earliest opportunity.

Graham
03-31-2010, 05:37 PM
I just sent this to FW Customer Service:

Yesterday I checked my wishlist and had many titles. Today my wish list has collapsed and the titles available for purchase have been reduced dramatically. Prices on titles remaining, even with the Club discount, exceed the price available at the Sony EReader Store. Please explain this disruption at your earliest opportunity.

They will explain that they are doing what they have been asked to do. Remove the titles while those publishers sort out the new pricing structure. All sellers have to do this over the next 24 hours. Sony are just a little later at implementing it than Fictionwise.

The fact that an existing title is priced cheaper on Sony is a different issue, I imagine, as that should be one of the titles unaffected by agency pricing, and just relates to Sony undercutting Fictionwise on that one.

EDIT: Or it could relate to the introduction of sales tax, with Sony lagging behind. Does someone have more information on the requirements that are being imposed there?

Marcy
03-31-2010, 05:39 PM
Oh please. Class action lawsuits are scams that make lawyers rich and nothing else. Every "successful" one nets the supposed hurt people some piece of crap like a $10 phone card while the lawyers rake in millions.

If they stop the discounts you can charge back any remaining balance on your cc if Fictionwise won't refund it. That's what I will do for the 4 yrs and 8 mos I have remaining on my membership. If they don't stop them, you're still getting the benefit. I'm pretty sure you still have a legitimate claim to charge back or request a refund if the discounts don't apply to the books you're interested in, even if you can still get them on other books.

-Marcy

rleguillow
03-31-2010, 05:41 PM
Is this 5 publisher thing possibly price fixing? And isn't that illegal?

Are there any lawyers on MR who can shed some light?

Graham
03-31-2010, 05:44 PM
Is this 5 publisher thing possibly price fixing? And isn't that illegal?

Are there any lawyers on MR who can shed some light?

This has been discussed in other threads here, with the consensus being that as it is being done very openly it can't be regarded as price fixing.

Graham

advocate2
03-31-2010, 05:55 PM
Marcy,

For those who purchased memberships with Paypal, how do you suggest a chargeback?

Graham
03-31-2010, 05:56 PM
The Fictionwise Buywise page now includes the benefits again:

http://www.fictionwise.com/help/buywise_message.htm

This states that the Buywise 15% will continue to apply to all eBooks purchased for the remainder of your membership, so you may find everything's OK.

Graham

Elfwreck
03-31-2010, 06:00 PM
Marcy,

For those who purchased memberships with Paypal, how do you suggest a chargeback?

I suggest you wait to see what actual changes have occurred before attempting to take legal action.

Contacting FW right now, if they reply at all, is going to get an answer of "changing coding; bear with us." Which doesn't mean that Buywise memberships are going to be worth less than they were before. Maybe the books on wishlists will all come back tomorrow.

It's possible that the 5 agency publishers will be removed from FW entirely, in which case Buywise won't be as useful, and they might be planning on offering pro-rated refunds to anyone who requests them, but keeping them for the customers who aren't affected by the changes. (I used to have a Buywise membership, and I only buy Multiformat.)

Threatening legal action before you know what happened, other than "some book listings are missing," is pointless.

Graham
03-31-2010, 06:03 PM
Contacting FW right now, if they reply at all, is going to get an answer of "changing coding; bear with us." Which doesn't mean that Buywise memberships are going to be worth less than they were before. Maybe the books on wishlists will all come back tomorrow.

In fact, if you think about it, with the price rises on the agency books, those 15% discounts would end up being more valuable, not less.

Graham

advocate2
03-31-2010, 06:07 PM
I just received this from Sony:

Beginning April 1st some major publishers will be instituting a change in the pricing of eBooks, which puts decisions on eBook pricing firmly in their hands. As a result, prices of bestsellers and new releases from these publishers will be changing on the Reader Store, and during the transition time, some titles may be unavailable. Although most of these eBooks will be priced from about $12.99 to 14.99, there will not be a broad pricing change across the Reader Store. In fact, new releases and bestsellers from other publishers will still be priced at $9.99.

Graham
03-31-2010, 06:09 PM
Yup, that Sony release sums it up well. It's similar to the statement appearing from other sites.

Marcy
03-31-2010, 08:34 PM
Marcy,

For those who purchased memberships with Paypal, how do you suggest a chargeback?

You can chargeback via Paypal. I've done it for an ebay item that was unsatisfactory. You have to wander through their info pages to find out how.

However it seems it will be unnecessary, as the new page says, "Receive a 15% discount on all Fictionwise eBooks for the entire length of your membership. This discount is ON TOP OF all other promotions, coupons, and other discounts!" Note it says *all* books, not selected books. It also says, "All existing Buywise Club members may continue to use their benefits until their memberships expire."

So you will retain your Buywise benefits. Under an agency model this seems like an even better deal. Fictionwise often had the most expensive price for ebooks anywhere. It was only a good deal by massaging the system and using the great sales. Now if everyone has to offer the books at the exact same price, getting 15% off can only be good, right?

-Marcy

JSWolf
03-31-2010, 09:07 PM
But don't buy the new higher priced eBooks or the publishers will think this new pricing scheme actually works.

advocate2
03-31-2010, 09:15 PM
Wolfman,

What do I do with my micropay money if I don't buy ebooks from FW?

Elfwreck
03-31-2010, 09:18 PM
Wolfman,

What do I do with my micropay money if I don't buy ebooks from FW?

Buy Multiformat books, which aren't affected by the new agency model. Buy books from Random House and small publishers.

sabredog
03-31-2010, 09:33 PM
Just did a search for the "Lost Fleet" series by Jack Campbell. No listings now. there was five available for purchase 24 hours ago. Diesel still list them though.

Marcy
04-01-2010, 01:17 AM
It is ironic that 3 of the 4 featured books on 100% rebate are among the books not available since if you click on them you are told "no longer on sale." Clearly Fictionwise was unprepared for this whole thing or they would have picked books from different publishers for this week.

-Marcy

SpiderMatt
04-01-2010, 02:58 AM
This lawsuit would fail. Flat out fail. If you want to waste a shit ton of money to make a point and get nothing in return, go for it. Fictionwise has done nothing wrong. Buying into the Buywise Club meant a 15% off ebooks which FW said will not change for the remainder of any individual's subscription. There was no promise of what books would be available, something to company can't be expected to predict. I assume most books will return tomorrow, anyway, and as Marcy pointed out, if we get 15% off the agency model pricing, we're going to get better deals than before. I don't understand the righteous indignation and anger that's been expressed by some on this board over this decision. A day hasn't even passed yet since changes started being implemented.

JSWolf
04-01-2010, 01:53 PM
Wolfman,

What do I do with my micropay money if I don't buy ebooks from FW?

You wait until the agency mess is sorted at FW and all the affected books are back and then see what's what at FW.

JSWolf
04-01-2010, 01:59 PM
Just did a search for the "Lost Fleet" series by Jack Campbell. No listings now. there was five available for purchase 24 hours ago. Diesel still list them though.

Go to Sony and get them in ePub for less then for can get at Diesel and you can get ALL of them as well.

http://ebookstore.sony.com/author/jack-campbell_43887

DawnFalcon
04-01-2010, 02:54 PM
You wait until the agency mess is sorted at FW and all the affected books are back and then see what's what at FW.

They won't BE back. This is the point - FW need to honor the Buywise club, and that means that they can't reach agreement under the agency model. It's done, stick a spork in it.

JSWolf
04-01-2010, 02:56 PM
They won't BE back. This is the point - FW need to honor the Buywise club, and that means that they can't reach agreement under the agency model. It's done, stick a spork in it.

How can you be 100% sure these 5 publisher's eBooks will not be available on Fictionwise?

DawnFalcon
04-01-2010, 02:59 PM
100% sure? I'm not, but if they do come back (and they can't get a discount if Amazon can't), then the class action lawsuit mentioned would have merit!

JSWolf
04-01-2010, 03:00 PM
100% sure? I'm not, but if they do come back (and they can't get a discount if Amazon can't), then the class action lawsuit mentioned would have merit!

I think FW will just have to bite the bullet and take the loss for all club members until the memberships are over.

DawnFalcon
04-01-2010, 03:07 PM
Some of them have a decade+ to run. I'd be highly unsurprised if FW became a branded shell of it's parents company, with buywise kept only for legal reasons.

Nakor
04-01-2010, 03:53 PM
Do you think FW could negotiate an exception for existing BW members allowing them to keep the existing discounts?

Elfwreck
04-01-2010, 03:58 PM
Do you think FW could negotiate an exception for existing BW members allowing them to keep the existing discounts?

Not likely. Apple's contracts require that nobody offer lower prices than theirs; other bookstores are trying for the same terms.

It's possible that FW could keep its lower prices by offering *rebates* instead of *discounts*--Micropay dollars probably don't affect anything. But by offering a direct discount, they run into contract terms that the publishers aren't going to be willing/able to change.

It's possible that some bookstores will start figuring out how to play with rebates instead of discounts--buy this book, and get a $1 credit in our store, or buy any 5 books at $10 or more and get a $5 coupon. But whether or not they can do that depends on the exact phrasing of the contracts.

DawnFalcon
04-01-2010, 04:08 PM
I'd imagine that obvious loopholes like that won't be possible (also, a rebate wouldn't be what the club promised)

Grumpyreader
04-01-2010, 04:19 PM
Looking at the model (or what we know of it anyway) it looks like the publishers are trying to ensure that they get a guaranteed x% back on every sale. So rebates which don't touch the profits of the publishers should be ok. I say "should" because I haven't seen the small print. They could have outlawed that too.

On the legal point, I suppose the one possible claim could be a breach of contract. The "you promised me discounts, so I bought membership and now you're not going to give me the discounts. I want my money back!" approach.

However, I reckon if we check the small print of the contract it'll say that the discounts available can be changed by Fictionwise at any time, without prior notice. That's standard practice so the company doesn't sign themselves up to something the they won't be able to honour at some point in the future...like now. If you want to argue with that clause that the ability to change discounts is unfair then you're into the Unfair Contract Terms Act here and good luck with that one...:blink: Generally the rule is caveat emptor or buyer beware before signing [sic]

However, I freely admit that I'm not a corporate or commercial lawyer, you should in no way rely on my advice and I know nothing about US law and things may be totally different over there. ;)

Infact they are still offering discounts where they can (i.e. honouring the 15% Club discount for the life of your membership) but they're having to withdraw discounts for REP books.

I'm taking a "wait and see approach" as I've only got one year left. I'll see what Fictionwise do once the dust has settled and then decide whether to ask nicely whether I'm entitled to some money back as a good-will gesture.

Nakor
04-01-2010, 04:23 PM
Yeah. In my case I'm kinda lucky. I only got it for 1 year because at the time they were offering a 100% rebate of the BW membership price. I had books I was going to buy anyway, so I figured why not? So I'm actually not out any money at all, even if BW was pulled out from under my feet.

Grumpyreader
04-01-2010, 04:33 PM
For once it's better to be outside US when buying e-books then inside!

I've just noticed that Waterstones are selling [shudder] Twilight by Hatchett Digital at below RRP. A whopping £1.60 off too. Looks like the Brits haven't caught on to REP or perhaps haven't implemented it yet?

I haven't tried to buy it to see if it's still purchasable (does that word even exist?) because...well...it's Twilight but it's still listed for sale at less than RRP.

pilotbob
04-02-2010, 12:55 AM
This is not news... I have moved it to the discussions thread.


BOb

pilotbob
04-02-2010, 12:55 AM
Wolfman,

What do I do with my micropay money if I don't buy ebooks from FW?

Continue to buy books with it. No one said you couldn't.

BOb

advocate2
04-02-2010, 02:16 AM
Bob.

FW induced readers to purchase long term memberships by creating the expectation that deals would be available for the length of their memberships. A question is created regarding whether they have delivered to their members that which they promised. A further question is whether FW had a duty, if any, to tell its members that the opportunities it promised was about to evaporate. I, for one, refuse to believe that FW decided Wednesday morning that they were going to both reduce the books offered and further increase the cost of the books that remained. I believe they had a duty to those from whom they had accepted money to give them a warning of the impending changes.

To you, as an experienced hand in the ebook business, this might not be news. To me, as a newbie who paid good money to FW for a long term relationship, this was important news. Sorry you don't see it that way. If they had told me, I would have purchased the books in my wish list that are now gone.

Dr. Drib
04-02-2010, 06:47 AM
I've changed your title, which is misleading to the membership of MobileRead and to any visitors who happen to pass by.


Don
(Moderator)

ATimson
04-02-2010, 08:40 AM
Continue to buy books with it. No one said you couldn't.
It's foolish to buy books if they don't carry anything good anymore, though. ;)

Graham
04-02-2010, 08:53 AM
It's foolish to buy books if they don't carry anything good anymore, though. ;)

Hmmm. There are 10,490 items from Random House alone available. There must be something worth reading there. ;)

Graham

ATimson
04-02-2010, 09:11 AM
Hmmm. There are 10,490 items from Random House alone available. There must be something worth reading there. ;)
Yes, there is. I own most if not all of it, though. ;)

JSWolf
04-02-2010, 09:15 AM
From what I've read on Teleread, it's possible that Amazon, FW, BON, and others not yet setup for Agency pricing will be set on April 3.

Graham
04-02-2010, 09:33 AM
Yes, there is. I own most if not all of it, though. ;)

:rofl:

Touché

advocate2
04-02-2010, 10:06 AM
Don,

To be precise, I am seeking an attorney willing to take on the case. I am not seeking members to be class representatives. I think the title now is a little misleading. I would prefer "Seeking Class Action Lawyer for suit against Fictionwise". Having made it past my initial devastation over the loss of so many books from my wishlist, my enthusiasm for the suit is cooling.

A fellow pipe smoker.

JSWolf
04-02-2010, 10:14 AM
Don,

To be precise, I am seeking an attorney willing to take on the case. I am not seeking members to be class representatives. I think the title now is a little misleading. I would prefer "Seeking Class Action Lawyer for suit against Fictionwise". Having made it past my initial devastation over the loss of so many books from my wishlist, my enthusiasm for the suit is cooling.

A fellow pipe smoker.

But what will you do if come April 3rd you find your wishlist restored? I think you are jumping the gun here. I think you'll find that in a few days, your case won't have any merit.

pilotbob
04-02-2010, 12:59 PM
FW induced readers to purchase long term memberships by creating the expectation that deals would be available for the length of their memberships. A question is created regarding whether they have delivered to their members that which they promised.

Loyalty programs are discontinued and/or modified all the time. For example... for over 20 years my wife and I had been a member of the Fridays Points club. Each time you go and spend money they give you a certain number of points depending on how much money you received.

Later you could redeem the points for various food items or other stuff. One of the items was a cruise. We decided to go for that... know it would take a long time. however, we would choose to go to Friday's rather than elsewhere to keep getting more points.

A few years ago... the totally changed the loyalty program. What did we get for our 20 years of patronage? A $25 gift card iirc.

I'm also guessing the terms of the club probably said the reserved the right to change the deal at any time with no notice. I fully expect the Buywise club says something like this too.

The bottom line is... nothing here is actionable...

As a matter of fact:

YOU ARE STILL A MEMBER AND STILL GET DISCOUNTS!!!

BOb

advocate2
04-02-2010, 03:11 PM
Three questions seem to me paramount.

First, what representations were made by FW at the time an individual became a member? If those representations ended up being false then a cognizable wrong exists.

Second, when did FW know that it would be subjected to a radical change in its pricing model?

Third, did FW have an implied duty to notify its members that it was about to experience this change.

If the pricing changes are temporary and the old model restored, of course damages would be minimal

pilotbob
04-02-2010, 03:35 PM
If the pricing changes are temporary and the old model restored, of course damages would be minimal

Can you tell me what you feel has changed for a BuyWise member? The BuyWise FAQ says:

The Fictionwise Buywise Club can no longer be renewed and new subscriptions are no longer available. All existing Buywise Club members may continue to use their benefits until their memberships expire.

So please... what did you loose? You still haven't answered that question.

BOb

DawnFalcon
04-02-2010, 04:15 PM
Maybe, just maybe, this (http://www.mobileread.com/forums/showthread.php?t=78899) has something to do with it?

pilotbob
04-02-2010, 04:24 PM
Maybe, just maybe, this (http://www.mobileread.com/forums/showthread.php?t=78899) has something to do with it?

You mean books being removed from the wishlist?

Once again, I don't see how that has anything to do with the benefits of the club.

Also, wrt books being pulled from your bookshelf FW also says, if you read their info, that they will make "best effort" to keep your books in your bookshelf as long as possible.

BOb

DawnFalcon
04-02-2010, 04:25 PM
You're not really very familiar with the legal system and how these lawsuits work, are you Bob?

(This is of course not necessarily a BAD thing...)

pilotbob
04-02-2010, 04:28 PM
You're not really very familiar with the legal system and how these lawsuits work, are you Bob?

(This is of course not necessarily a BAD thing...)

I'm happy to say that I am not. :D

Were you referring to people suing people with no real reason other than blaming someone else for their misfortunes?

BOb

Elfwreck
04-02-2010, 04:31 PM
First, what representations were made by FW at the time an individual became a member? If those representations ended up being false then a cognizable wrong exists.

This'd be crucial.

Second, when did FW know that it would be subjected to a radical change in its pricing model?

Third, did FW have an implied duty to notify its members that it was about to experience this change.

There have been no changes in the pricing model. And FW doesn't inform its customers every time a publisher pulls a book from availability, nor every time it stops carrying a particular line of books.

If the pricing changes are temporary and the old model restored, of course damages would be minimal

As far as we know, no pricing changes have occurred. All that's happen is that FW is carrying considerably less books than it used to; all their promises seem to be intact.

It's possible that customers who could claim FW implied an ability to provide their full former selection would be eligible for legal refunds; it's also possible that FW would provide refunds on request, with no legal liability, just to avoid huge numbers of disgruntled customers.

But so far, it looks like nothing has changed except what FW has available to sell, and some of what's available to download in one's bookshelf. Since they make no promises that those books will be available forever, that's not actionable.

advocate2
04-03-2010, 01:15 AM
Bob,

I purchased a four year membership because I was given a clear impression that I would be receiving a discount on the prices I could purchase ebooks elsewhere. Let's take Grisham's The Appeal as an example. FW shows a list price of $18.95 but gives me a discount with a final price of $16.11. Now, look at the same title in the same format at the Sony Reader Store. It's price is $7.99. Perhaps you enjoy paying membership fees that give you the opportunity to purchase a title at twice the price available elsewhere. I do not. Sadly, I conclude that I have not received the benefit I was promised when I purchased my FW membership. Still not convinced, then please check the same title at Barnes and Noble, the parent company of FW. Surprise!!! It's $7.99!!!! Please explain the benefit I have received.

Shopaholic
04-03-2010, 01:57 AM
Bob,

I purchased a four year membership because I was given a clear impression that I would be receiving a discount on the prices I could purchase ebooks elsewhere. Let's take Grisham's The Appeal as an example. FW shows a list price of $18.95 but gives me a discount with a final price of $16.11. Now, look at the same title in the same format at the Sony Reader Store. It's price is $7.99. Perhaps you enjoy paying membership fees that give you the opportunity to purchase a title at twice the price available elsewhere. I do not. Sadly, I conclude that I have not received the benefit I was promised when I purchased my FW membership. Still not convinced, then please check the same title at Barnes and Noble, the parent company of FW. Surprise!!! It's $7.99!!!! Please explain the benefit I have received.


But isn't price comparison your responsibility and something you should have done before buying the membership in the first place, which in the end has nothing to do with your complaint now? It seems like you're talking about two different things here.

I don't know. I price compare pretty much everything I buy. If some club tells me I'm going to pay less from them by being a member you're darn right I'm going to do price comparisons to see if that claim is true for what I would buy from them. *shrug*

pilotbob
04-03-2010, 02:01 AM
Bob,

I purchased a four year membership because I was given a clear impression that I would be receiving a discount on the prices I could purchase ebooks elsewhere. Let's take Grisham's The Appeal as an example. FW shows a list price of $18.95 but gives me a discount with a final price of $16.11. Now, look at the same title in the same format at the Sony Reader Store. It's price is $7.99. Perhaps you enjoy paying membership fees that give you the opportunity to purchase a title at twice the price available elsewhere. I do not. Sadly, I conclude that I have not received the benefit I was promised when I purchased my FW membership. Still not convinced, then please check the same title at Barnes and Noble, the parent company of FW. Surprise!!! It's $7.99!!!! Please explain the benefit I have received.

Well... apparently we will have to agree to disagree.... if you find a lawyer that agrees with you and will take on this case... well... you've found a lawyer I won't be hiring.

BOb

Elfwreck
04-03-2010, 02:46 AM
Bob,

I purchased a four year membership because I was given a clear impression that I would be receiving a discount on the prices I could purchase ebooks elsewhere.

Fictionwise never promised a discount against the prices of other ebook stores, just that Buywise members got a discount on *its* prices. It's your job to figure out if its prices are low enough to make that worth the price of club membership.

If I had a Buywise account--which I don't because I don't like the new customer service--I wouldn't be affected at all by the recent changes, because I only buy multiformat books from Fictionwise. So the 5 publishers they no longer carry wouldn't affect me at all. Almost none the books I wanted to buy at Fictionwise are available cheaper anywhere else. (And when they are, FW is still better, 'cos the other places often only sell 1 format per purchase.)

You *might* be able to argue that you expected the full array of publishers to continue to be available, but the most you're likely to get out of that is a pro-rated refund. If you're really upset, I suggest you wait a couple of days for the coding to settle down, and then send an email demanding a refund. If you paid by credit card, you can possible contest the charges, or part of them, even a year later.

Seabound
04-03-2010, 03:00 AM
I purchased a four year membership because I was given a clear impression that I would be receiving a discount on the prices I could purchase ebooks elsewhere.

I am a Buywise Club member, and Fictionwise did give me that benefit as part of membership. Here is what is listed on their website as Buywise Club benefits:



The Fictionwise Buywise Club can no longer be renewed and new subscriptions are no longer available. All existing Buywise Club members may continue to use their benefits until their memberships expire.

- The Fictionwise Team
Buywise Club Benefits
Receive one free eBook of your choice for free for each year of membership (up to $10, see more details below).
Receive a 15% discount on all Fictionwise eBooks for the entire length of your membership. This discount is ON TOP OF all other promotions, coupons, and other discounts!

For example, if you buy an eBook in its first week of sale at Fictionwise it's automatically 15% off. You may have a 20% off coupon that you use to further reduce the price of this eBook. After all those other discounts are applied, your Buywise Club discount still kicks in for another 15% off the already discounted price.
Quantity Purchase Rebates. You will receive a micropay rebate for large credit card transactions. Again, these rebates are above and beyond all other discounts that apply to the sale:
Orders over $100 and under $200 will receive a 10% micropay rebate.
Orders over $200 will receive a 15% micropay rebate.

Example 1: as a member if you place a credit card shopping cart order for ten novels totalling $60 after your discounts, and you add another $50 of micropay for a total sale price of $110, you will receive an $11 rebate (10% of $110) into your micropay account.

Example 2: if you placed a credit card order at Fictionwise with a total sale price of $200, you would receive a micropay rebate of $30 (15% of $200).

Special promotions and discounts. Buywise Club members will additionally receive special promotions and discounts throughout the year, which will not be available to non-club members. We will typically run one of these special promotions about once every two months.

Graham
04-03-2010, 05:52 AM
Let's take Grisham's The Appeal as an example. FW shows a list price of $18.95 but gives me a discount with a final price of $16.11. Now, look at the same title in the same format at the Sony Reader Store. It's price is $7.99.

It's worth noting here that Grisham is a Random House author, and so the pricing is not affected by the recent agency changes. This is simply a case where other booksellers are discounting a book more than Fictionwise, for their own reasons.

I'm sure you can find numerous examples of books where the Fictionwise discount is higher. For example, the very first one I checked, as it was the banner ad on the Sony store, "Solar" by Ian McEwan is cheaper on Fictionwise after the Buywise discount.

Graham

Kali Yuga
04-03-2010, 10:00 AM
Dude, you have no case.

Not only is your alleged case devoid of merit, it's a screaming example of the need for tort reform in the US.

I have absolutely no doubts that Fictionwise never guaranteed that specific books would be discounted. They can't even guarantee you that a certain item will be available on their site, since ultimately they are just the retailer.

Nor, I expect, did they ever guarantee specific prices.

Legally, it is utterly irrelevant when FW knew that their prices were going to change, or how they notified you. Odds are also very high that within a week or two, all their prices will be adjusted and your wishlist, for example, will be restored.

And as Pilotbob (and probably others) pointed out, Fictionwise hasn't voided your membership. You'll still have all your benefits until your membership runs out.

There are no "damages" here, the very idea is patently absurd. All they've done is irritated a customer, which is unfortunate but perfectly legal. You may even have the option to request that they cancel your membership and refund you the balance.

So at the risk of presumption about your gender, and to quote the Supremes: "Why don't you be a man about it?"

DawnFalcon
04-03-2010, 12:17 PM
But isn't price comparison your responsibility and something you should have done before buying the membership in the first place, which in the end has nothing to do with your complaint now? It seems like you're talking about two different things here.

He might well of done. But the playing field just totally changed, and before the iBooks announcement, there was no clue this was coming.

Kali Yuga - A brilliant defence of corporate behaviour, no matter how exploitative. Now, I don't think this case has merit if he can get a refund, but your defence...um...

advocate2
04-03-2010, 01:04 PM
Kali,

Tort is a separate area of law from Contract. This has nothing to do with tort which deals with negligence and intentional torts such as trespass.

This case has to do with promises made to induce the public to deliver money to FW to obtain a benefit. It has to do with duties between two parties to a contract. May I ask all those who find FW's behavior acceptable, did you actually buy a membership or are you just throwing in your two cents? Perhaps your feelings about damages would be different if you had made a payment to FW.

Contracts have covenants. Those covenants can be implied or express. Perhaps you should read a book on Contract law. You don't indicate your location so I don't know if you live in a common law jurisdiction or not. Keep in mind that the law of continental Europe is based upon the Napolionic Code while the UK and the US use the common law. I am not really interested in giving a course in US consumer protection and contract law, but your analysis is flawed by your misunderstanding of the law.

Dr. Drib
04-03-2010, 01:26 PM
Thread title change as per OP's request.


Don
(Moderator)

Graham
04-03-2010, 01:57 PM
May I ask all those who find FW's behavior acceptable, did you actually buy a membership or are you just throwing in your two cents?

FWIW, I was a BuyWise member for many years until the geographic restrictions made it pointless. Now, no, but that is completely irrelevant. My opinions on this would be the same regardless of whether I had money invested in the Club.

Graham

DJHARKAVY
04-03-2010, 02:13 PM
I am a fictionwise member, and I have been a Buywise member since before most publishers were putting their work on Fictionwise.

And I will be even if they don't get these publishers back. I save more money than I paid for the membership and I understand (although would be unhappy) if they don't work things out.

Although I will shop around more to get the best prices that I can...

Grumpyreader
04-03-2010, 05:49 PM
Those covenants can be implied or express.

A bit of poking around the web reveals the following.

Indemnities are the "if x happens, we agree to pay you (indemnify you) $" whereas warranties are the "we guarantee (warrant) that the situation will always be this, otherwise we'll give you $". With indemnities you don't have to prove loss, just that the action event occurred. With warranties you have to prove a financial loss as a result of relying upon the statement.

But you specifically mentioned indemnities...

As you rightly point out there are two types of indemnities, implied and express. But, as mentioned above, this all assumes that your contract with FW specifically states that if they change the terms of the contract, you're entitled to money back...I can't find anything on the website along those terms but perhaps you have something squirreled away in your inbox from FW?

Implied covenants: Did FW say or do anything to give you the impression that buying membership entitled you to guaranteed discount on every book they sold (or at least all or a significant number of the ones you want)? And did FW agree to reimburse you if it didn't happen (then you wouldn't have to prove any financial loss like you would for a warranty). Do you have any evidence to back up this belief? That'd be an implied covenant I think...

Express: Did you email FW and agree that, before you bought your membership, they would guarantee all or a significant number of the books you wanted would be discounted AND that you make it clear that this was vital to your membership (hence any deviation would result in a material breach on FW's behalf)? Again, I think written evidence would help.

Ultimately you have to show that an event happened which you were promised wouldn't to prove a breach of indemnity.

Again, I'm not a contract/commercial lawyer, my knowledge of US contract law is nil and you definitely shouldn't rely on anything I say, yadda yadda.:rolleyes:

Graham
04-03-2010, 05:55 PM
Implied covenants: Did FW say or do anything to give you the impression that buying membership entitled you to guaranteed discount on every book they sold (or at least all or a significant number of the ones you want)?

This is the one they did (do) do:

Receive a 15% discount on all Fictionwise eBooks for the entire length of your membership.

This is also why I'm getting more convinced that Fictionwise are going to drop the agency Publishers and leave sales of those to Barnes & Noble.

That would leave them able to continue to offer a discount on all Fictionwise ebooks and so continue to honour their Buywise commitment.

Graham

Grumpyreader
04-03-2010, 06:06 PM
This is the one they did (do) do:



This is also why I'm getting more convinced that Fictionwise are going to drop the agency Publishers and leave sales of those to Barnes & Noble.

That would leave them able to continue to offer a discount on all Fictionwise ebooks and so continue to honour their Buywise commitment.

Graham

I totally agree. It might also explain the delay for FW getting themselves up and running. As others have suggested, they're probably trying to negotiate something with the Big 5 (are we calling them that now?) so that they can honour their commitments to members. If they can't I suspect it's the end for the Big 5 (surely there's got to be a better name) at FW.

However if they still offer the 15% discount for the book they do list, they'll be honouring that statement and, subject to anything else people can find, I don't think there's any breach of an implied covenant.

advocate2
04-03-2010, 07:35 PM
Grumpy,

Indemnification is a separate issue which deals more with guarantees. It is not relevant to the issues here. If you read my posts you will see that I never mentioned indemnification. I am not sure where you came up with the term.

Please consider this hypothetical.

Seller A says "pay me a fee and I will give you a discount on books you buy from me. I have great prices to start with and you will save even more. I have a massive inventory."

Buyer pays the fee in reliance on that statement.

Seller A then says, "I am increasing the price of the books I sell and also reducing significantly the number of books available from me. This is not my fault. It is because of industry conditions."

Seller A is acquired by Seller B. At the same time Seller A reduces its books available and increases its prices, Seller B Sells those books at one half of the price of Seller A.

Buyer then faces this choice: Buy the book from the Seller A Membership club. Buy the book from Seller A's parent at one-half the price Buyer would pay Seller A.

Please explain the benefit Buyer received for the fee he or she paid Seller A to join the club? Please explain Seller A's statement that the change is due to industry conditions when its parent company charges one half the price?

DawnFalcon
04-03-2010, 07:38 PM
(surely there's got to be a better name)

"Agency Cartel".

And sure there's a breach, especially if the parent company are still selling the ebooks elsewhere. A significant breach? Can't speak to how US law sees that.

Elfwreck
04-03-2010, 07:42 PM
However if they still offer the 15% discount for the book they do list, they'll be honouring that statement and, subject to anything else people can find, I don't think there's any breach of an implied covenant.

While they never claim to carry all their books forever, I suspect that if they dropped all DRM'd books and just offered multiformats, or removed everything except its erotica selections, many people who bought Buywise memberships would say that they had been cheated--they bought them under the very reasonable assumption that, while FW might not have *all* its current offerings forever, it was at least implied that FW would continue to offer a comparable range of books for the length of the club memberships.

A bookstore that sells $200 "lifetime reader's club" memberships, "good for 15% off everything in our stock for life!" and then closes down in two months, will be facing a lot of angry customers and demands for refunds. A bookstore that sells those memberships, and then in two months, turns into a specialty store focused only on travel books and foreign language dictionaries, is also going to face a lot of heat.

It can be argued that that's what FW has done--had a recent big push for long-term memberships, followed by a substantial drop in available stock. Whether that would hold up in court is anyone's guess.

However, it doesn't have to hold up in court for FW to face widespread drops in sales from bad public opinion. The money they get from long-term club memberships is very much secondary to the money they get from those members buying new books, which is why they can afford to have 100% micropay rebates on club memberships. They may have dropped club memberships in awareness that they have less to offer now, and may be willing to refund club memberships rather than face the public outcry (in addition to what they'll be getting for just not stocking those lines anymore).

KarenH
04-03-2010, 10:27 PM
May I ask all those who find FW's behavior acceptable, did you actually buy a membership or are you just throwing in your two cents? Perhaps your feelings about damages would be different if you had made a payment to FW.

I've only been a BuyWise member for a little over a year, but my membership now extends out about 6 years. At this point, the only thing that I know of that I feel Fictionwise has done wrong is not keeping their customers informed of the status of the situation. Other than that I think they're very much in a "rock meet hard place" situation. The publishers won't allow them to carry their books and offer any discounts, yet they have customers out there who have already paid for these discounts. As of now I can still get the promised discount, I just don't have nearly the selection of books from which to choose.

Am I happy about the situation? Of course not, but I don't blame Fictionwise (other than for the lack of communication), and my hope is that maybe the reason they HAVEN'T communicated is that they are still trying to come up with some solution that will be a little more palatable to their customers than the current situation - either a deal with the publishers that will allow at least the 15% membership discount, or maybe some kind of membership "buyback" plan so they can just get rid of the BuyWise program entirely and get the publishers back that way. It may be wishful thinking, but I'm going to give them some time and reserve judgement for now.

ATimson
04-03-2010, 10:34 PM
Of course not, but I don't blame Fictionwise (other than for the lack of communication), and my hope is that maybe the reason they HAVEN'T communicated is that they are still trying to come up with some solution that will be a little more palatable to their customers than the current situation - either a deal with the publishers that will allow at least the 15% membership discount, or maybe some kind of membership "buyback" plan so they can just get rid of the BuyWise program entirely and get the publishers back that way. It may be wishful thinking, but I'm going to give them some time and reserve judgement for now.
So will I... for now. My concern is less my Buywise membership than the $300 in Micropay I have sitting around (after having bought all the John Grisham titles, thinking that there'd be titles I'd want to spend that rebate money on).

pilotbob
04-04-2010, 12:14 AM
So will I... for now. My concern is less my Buywise membership than the $300 in Micropay I have sitting around (after having bought all the John Grisham titles, thinking that there'd be titles I'd want to spend that rebate money on).

Did someone (fictionwise) say you can't spend your micro pay on ebooks at FW?

BOb

ATimson
04-04-2010, 12:22 AM
Did someone (fictionwise) say you can't spend your micro pay on ebooks at FW?
You appear to have missed or ignored the "that I want to spend money on" clause in my post. :)

pilotbob
04-04-2010, 12:25 AM
You appear to have missed or ignored the "that I want to spend money on" clause in my post. :)

Guess I did. Of course... that could have been the case even if the agency model didn't cause them to pull books. I really expect those books will be back though.

BOb

ATimson
04-04-2010, 12:32 AM
Guess I did. Of course... that could have been the case even if the agency model didn't cause them to pull books.
It could've. It's not likely, but it's possible. But that's also why it's a "concern" and not "something I feel the need to push Fictionwise on".

I really expect those books will be back though.
Which is another reason why I'm content to wait for now. :)

Grumpyreader
04-04-2010, 08:06 AM
Grumpy,

Indemnification is a separate issue which deals more with guarantees. It is not relevant to the issues here. If you read my posts you will see that I never mentioned indemnification. I am not sure where you came up with the term.

Please consider this hypothetical.



Ah, a key difference between US and UK law there I think. We call "covenants" indemnities. Covenants only seem to crop up for land law purposes. The rules about implied, express and (most importantly) the need to prove a financial loss still remain though. Although no doubt a qualified attorney will now jump in and prove me wrong...cue qualified attorney.

Whilst the Seller A and Seller B point is incredibly irritating for you and us all, I'm not sure it would impact upon any legal claim. The ultimate point is that FW made a statement and you relied upon it when buying your membership. If that statement turns out to be false then no doubt you, and lots of other people, will be considering your options.

However it looks like all FW said was "we'll give you an extra 15% off all ebooks at FW". And they're doing that. The fact that you thought they'd always offer the books that you wanted, at a cheaper price than B&N etc is only pertinent if FW made statements to lead you to think that.

As before I'm not a US corporate/commercial lawyer (it shows I know) and you shouldn't rely on anything I say.

Kali Yuga
04-04-2010, 07:10 PM
Tort is a separate area of law from Contract....
What contract do you have with Fictionwise that has been violated?

They're honoring your membership until your time period is up:

http://www.fictionwise.com/help/buywise_message.htm

Ergo, I do not see that they violated your contract.

Substitute whatever term you like to indicate "frivolous lawsuits," as that is clearly what this would be.

No. Case. Period.

DawnFalcon
04-04-2010, 07:18 PM
So, you're a lawyer by profession then Kali Yuga. Nice to know.

JSWolf
04-04-2010, 07:42 PM
One thing Fictionwise never said is that they were going to be removing all the eBooks from the publishers going with the agency pricing. FW is not saying what's going on and when these publishers will (if ever) be back there. Having them at B&N is useless as B&N is eReader only now.

Basically, Fictionwise & B&N can kiss my ass and get shat on doing so.

DawnFalcon
04-04-2010, 07:56 PM
Yep. Information, information, information. Even if it's "Don't panic".

BuddyBoy
04-04-2010, 08:45 PM
Kali,

Tort is a separate area of law from Contract. This has nothing to do with tort which deals with negligence and intentional torts such as trespass.

This case has to do with promises made to induce the public to deliver money to FW to obtain a benefit. It has to do with duties between two parties to a contract. May I ask all those who find FW's behavior acceptable, did you actually buy a membership or are you just throwing in your two cents? Perhaps your feelings about damages would be different if you had made a payment to FW.

Contracts have covenants. Those covenants can be implied or express. Perhaps you should read a book on Contract law. You don't indicate your location so I don't know if you live in a common law jurisdiction or not. Keep in mind that the law of continental Europe is based upon the Napolionic Code while the UK and the US use the common law. I am not really interested in giving a course in US consumer protection and contract law, but your analysis is flawed by your misunderstanding of the law.Um, when did class action suits become part of contract law?

pilotbob
04-04-2010, 08:48 PM
Yep. Information, information, information. Even if it's "Don't panic".

the time most people panic is when people tell them not to panic. ;)

They are probably better off waiting until they are sure what is happening. They may not even know.

BOb

advocate2
04-05-2010, 12:02 AM
Buddy,

Contract law is a substantive area of law. Class Actions are a procedural matter. Whenever you have many persons who are similarly situated, it is not cost effective for the plaintiffs and burdensome to the Defendants and Courts system to have a proliferation of many lawsuits. The Class Action Procedure allows consolidation of many plaintiffs into one case. The problem with the case at hand is that there may not be enough members and the damages each suffered is not likely to be more than a couple of hundred dollars each. Honestly, I'm just not sure that enough damages have been sustained by the class to attract the typical class action contingency law firm.

Kali,

a small amount of damages does not make a case frivolous. A court can grant damages of $1 for a wrong sustained and proven. Frivolouse refers to cases under which no meaningful legal theory can be sustained. It is also, in the US, illegal to practice law without a license, which you appear to be doing. You should also know that if you ever are called to be a juror in the US that you do not tell the jurors the law, the Judge does. The jury is presented with admissable evidence and decides the facts from the evidence. Thank heavens we will not have to rely on you and Bob to be apologists for a large company that has misrepresented facts to its customers in order to take their money.

BuddyBoy
04-05-2010, 12:39 AM
Buddy,

Contract law is a substantive area of law. Class Actions are a procedural matter. Whenever you have many persons who are similarly situated, it is not cost effective for the plaintiffs and burdensome to the Defendants and Courts system to have a proliferation of many lawsuits. The Class Action Procedure allows consolidation of many plaintiffs into one case. The problem with the case at hand is that there may not be enough members and the damages each suffered is not likely to be more than a couple of hundred dollars each. Honestly, I'm just not sure that enough damages have been sustained by the class to attract the typical class action contingency law firm.Hey Advocate2,

Yes I am familiar with contract law and the wild and wonderful place it fills in the halls of jurisprudence. I confess it was my favorite subject, whereas criminal all just seemed grimy and repetitive. That said, I am NOT licensed to practice law in the US - my schooling was England & Wales, with no exposure to class action law, for obvious reasons.

I will defend the fella that misspoke of "tort reform" only because, while not precisely correct in this instance, it is sometimes used by the layperson to describe reforming not only tort, but also the rush to and ease of overzealous civil litigation in general. But that just my opinion. ;)

Kali Yuga
04-05-2010, 02:00 AM
It is also, in the US, illegal to practice law without a license, which you appear to be doing.
Oh, for crying out loud. If that's the case, then half the Internet is guilty of "practicing law without a license."

Thank you for illustrating your *cough* depth of understanding of the law.

Congrats, you're now on my Ignore list.

Hamlet53
04-05-2010, 09:02 AM
I'm happy to say that I am not. :D

Were you referring to people suing people with no real reason other than blaming someone else for their misfortunes?

BOb

:rofl:

advocate2
04-05-2010, 10:57 AM
Buddy,

The real problem with US law compared to that of the UK is the allocation of legal fees. In the UK if a plaintiff brings a case and does not prevail, then plaintiff is liable for defendant's legal fees. In the US the rule is different and no legal fees are paid except in limited circumstances. The bottom line is that in the US there is little downside to commencing a suit. Also, in the US it is perfectly fine for a barrister to take a case on a contingency. Until recently, that was not the case in the UK. Hence the US has a proliferation of litigation while the UK does not.

Sadly, in the US, the "cost of litigation" is often a deciding factor in offering a settlement even if a case does not have particular merit.