June 28, 2011

What's with the rising number of class action lawsuits against authors?


Downsizing publishers, shrinking markets, fewer reviews, disappearing retailers — the Boston Globe‘s Alex Beam takes note, in his newest column, of yet another rapidly developing problem facing authors: Class action suits.

“It’s a stretch, legally speaking, but the ever-creative plaintiffs’ bar never runs out of ideas,” he explains. “Before this year, there had been only two significant class action suits against major publishers, both of which were settled. Since January, however, both Simon & Schuster and Penguin Group have found themselves staring down the barrels of class action litigation.”

The “particularly wild-eyed” case against S&S charges former president Jimmy Carter with “falsehoods, misrepresentations, misleading statements, omissions of material facts and outright lies” in his book Palestine: Peace, Not Apartheid, although Beam notes that the complainant, an attorney named David Schoen who says the book is just “an anti-Israeli screed,” has since “temporarily backed away from his attack.” The Penguin case involves none other than Greg Mortenson, who is being charged with massive fabrication in his mega-bestseller Three Cups of Tea (a story MobyLives has been following as it got worse and worse — see here and here).

So why the rise in number? It may partly be sue to “the evoloution of the class action lawsuit,” one expert tells Beam, going on to explain that “Now there have been several waves of rulemaking that have liberalized the standards.”

But of course it could also be seen as something the opposite of liberalization. Particularly in the Carter case, which according to Beam’s expert — Walter Olson, founder of the website Overlawyered.com — is “an outrageous lawsuit. If you allow this to go forward you introduce the right to sic lawyers on political writers you disagree with. The First Amendment very much does apply.”

The ultimate question is are such lawsuits effective in righting the supposed wrongs of the books? Beam looks to the lawsuit against Random House and James Frey a few years ago over Frey’s falsified memoir A Million Little Pieces. Observes Beam,

“It wasn’t at all clear that people were really a class in that suit,” Olson says. “Some buyers had never read the book; some read it and were even more amused to find out that it was fictionalized.”

Fewer than 2,000 readers asked for their money back, though the case did provide the usual fat payday for the plaintiffs’ bar, as Random handed over a six-figure sum in legal fees.

Dennis Johnson is the founder of MobyLives, and the co-founder and co-publisher of Melville House.