In a case that began in June 1992, the authors of the textbook Merrill Mathematics reached an out-of-court settlement in a breach of-contract suit brought against a host of publishing companies including Macmillan and Macmillan/McGraw-Hill School Publishing. Under the settlement the seven authors were awarded $3.2 million and were also given back their publishing rights as well as production materials. Today, 13 years later, the seven authors and their heirs continue to receive annual six figure royalties from continued sales of the reverted rights. The settlement was reported by the publishing industry’s bible, PUBLISHERS WEEKLY to be one of the largest ever won by authors in a suit against publishers.
The suit had its origins in Macmillan’s decision not to publish the third edition of Merrill Mathematics. In addition to not publishing the revised text book, the publisher had refused to return the manuscript to the authors to allow them to find a new publisher, and also refused to release them from a clause in their contract that prohibited them from working on similar materials for another publisher.
The case became increasingly complex as a result of the merger wave that swept educational publishing in the late 1980’s and early 1990s, as well as the collapse of the Maxwell Communication Corp. empire. The seven authors (Audrey Bufrfington, Alice Garr, Jay Graening, Philip Halloran, Michael Mahaffey, John Stoeckinger and Glen Vannatta) had written the revised edition for Merrill Publishing and had met all their contractual obligations to permit the text to be submitted as part of the Texas math adoption. However, before the book could be published, Merrill, then owned by Bell and Howell, was acquired by Macmillan, which at the time was owned by Robert Maxwell. Maxwell then combined Merrill and the Macmillan school division with McGraw-Hill’s school Publishing division to form Macmillan/McGraw-Hill School Publishing. The joint venture declined to accept the third edition of the textbook, however, leaving it as the only school publishing asset at Macmillan, and the text was never submitted to the Texas adoption board.
Early in the case Michael Lennie traveled to England to meet with the unauthorized biographer of Robert Maxwell. On the night of his 50th birthday he took a train from London to interview the author at his home located in a fog enshrouded hamlet 20 miles out of the city. The author had a wealth of contacts concerning Mr. Maxwell, and generously shared his sources. The contacts helped Mr. Lennie unravel the tangled web of Mr. Maxwell’s various business interests which in turn was of immense assistance when Mr. Maxwell later filled bankruptcy in an attempt to evade this and many other liabilities.
As a result of the mergers, in addition to Macmillan and Macmillan/M-H School Publishing, McGraw-Hill, Merrill and Bell and Howell were all named in the original suit, which sought more than $40 million in compensatory and punitive damages. In addition to charging breach of contract, the suit included tort allegations that the publishing companies had conspired not to publish the new edition of the Merrill textbook to eliminate competition in the marketplace. The large amount of the claim coupled with the fact that Mr. Lennie won an important motion by the defendants attempting to strike the authors’ claim for punitive damages, created substantial pressure on the trustee in bankruptcy to settle the authors’ claim.
The final settlement was reached with the Maxwell Proceeds Trust, which administers the funds resulting from the sale of Maxwell companies, including Macmillan. Michael Lennie, a California lawyer in private practice who represented the authors, told PW the case “is a good place to start to send a message to authors and publishers that there are limits to what publishers can do to authors. There are implied conditions in most publishing contracts that can protect authors.”
Michael is an attorney and literary agent, licensed in California and New York in practice for over 37 years. He graduated from the University of San Diego School of Law in 1970. He has represented authors for 22 years. For the past several years he has limited his practice to representation of authors as both a literary agent and attorney. He represents fiction, non-fiction and textbook authors.
Jim Milliot is recognized for putting the majority of this article together for Publishers Weekly News.
Lennie Literary Agency & Authors Attorney
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