Seeking Class Action Lawyer for suit against Fictionwise

[Graham]

Originally Posted by advocate2

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]

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]

Originally Posted by Shopaholic

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]

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]

Thread title change as per OP's request.


Don
(Moderator)

[Graham]

Originally Posted by advocate2

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]

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]

Originally Posted by advocate2

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.

[Graham]

Originally Posted by Grumpyreader

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:

Originally Posted by Buywise Club FAQ

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]

Originally Posted by Graham

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]

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]

Originally Posted by Grumpyreader

(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]

Originally Posted by Grumpyreader

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]

Originally Posted by advocate2

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]

Originally Posted by KarenH

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).