Opinion

Alison Frankel

Moral of ‘Three Cups’ dismissal: Don’t believe everything you read

By Alison Frankel
May 2, 2012

On Apr. 5, Greg Mortenson, the author of the blockbuster bestseller Three Cups of Tea, agreed to pay $1 million to resolve the Montana attorney general’s claims that he misused money from the charity he founded to establish schools in Pakistan and Afghanistan. Mortenson had attracted tens of millions of dollars for the charity through his memoir, Three Cups, and its sequel, Stones into Schools, before a 60 Minutes report in April 2011 cast doubt on some key points in Mortenson’s story and asserted he was diverting money from the charity to fund personal travel. A yearlong investigation by the Montana AG found the charity spent nearly $10 million to promote or buy his books.

Those are serious lapses, and everyone who contributed to Mortenson’s charity should be relieved that Mortenson has repaid what the Montana AG said he owed. But does he – or his Three Cups co-author, his charity, and the publisher of both Mortenson books – owe anything to book buyers who claim they were defrauded into purchasing a book they believed was entirely true?

Not according to U.S. District Judge Sam Haddon of Missoula, Montana, who tossed a class action asserting racketeering, fraud, and breach of contract claims (among others) on Monday. Haddon said in a 24-page opinion that plaintiffs’ lawyers Alexander Blewett of Hoyt & Blewett, Larry Drury, and Robert Langendorf simply hadn’t shown in four amended complaints that the alleged misrepresentations in Mortenson’s books added up to a fraudulent scheme. They hadn’t even properly alleged that class members bought the books because they thought everything in them was true, Haddon found.

More significantly, for those of us who buy non-fiction books with the naive expectation that they are actually factual, the Montana judge held that book publishers have no implied duty to readers to assure the accuracy of their books. In reaching this conclusion, Haddon joined a long line of judges who have held that publishers are not liable when their books contain inaccuracies.

Mortenson’s publisher, Penguin, cited cases in which the consequences of such errors were considerably direr than those in the Three Cups suit, in which Mortenson supposedly exaggerated the details of his adventures and misadventures as a mountain climber and then philanthropist in the Himalayas. In Penguin’s motion to dismiss and at the Apr. 18 oral argument in Missoula, Dorsey & Whitney lawyers pointed to the 9th Circuit Court of Appeals’ 1991 decision in Winter v. G.P. Putnam’s Sons, holding that the publisher of an encyclopedia of mushrooms wasn’t liable for mistakes in the book, even though readers got sick from eating a mushroom erroneously identified as safe. Similarly, state appeals courts in New York and California ruled that publishers of The Beardstown Ladies’ Common Sense Investment Guide weren’t liable to those who followed the ladies’ investment advice based on the book’s erroneous assertions of the investment club’s profits.

Penguin argued that there’s no possible way for publishers to check the accuracy of their offerings, and demanding such a check would spell death for the book business. Penguin also said publishers have First Amendment protection for the content of books. “No court,” Dorsey & Whitney said in the publisher’s dismissal brief, “has ever imposed liability for fraud or breach of contract on a publisher of any nonfiction book, much less an autobiography (like the books here) based on the contents of a book; or based on statements that the contents of a book are ‘true’ or ‘non-fiction.’”

Plaintiffs’ lawyers, on the other hand, asserted that none of the cases Penguin mentioned involved a conspiracy to defraud readers. As an alternative, they pointed to the $2.75 million class action settlement of claims against Random House and author James Frey, whose memoir A Million Little Pieces turned out to be liberally studded with lies. That 2007 settlement, they said in a response to Penguin’s motion to dismiss, disproved Penguin’s assertion that no court has upheld fraud claims against a publisher.

That’s not quite correct; in the Million Little Pieces case, now-retired U.S. District Judge Richard Holwell of Manhattan federal court approved the settlement before an amended complaint was even filed, let alone tested in a motion to dismiss. I called Larry Drury, who was class counsel in both cases, to ask about that, but he was in trial and unavailable for comment. Co-counsel Blewett of Hoyt & Blewett declined to comment.

In any event, Haddon ignored the Million Little Pieces case and the First Amendment, sticking close to Montana contract law and previous rulings on publishers’ duty, or lack thereof, to readers.

On the Case has previously questioned whether justice demanded recompense for Three Cups readers, but as someone who spends my entire work day attempting to report facts accurately, I’m not entirely comfortable with the idea of book authors and publishers misrepresenting non-fiction. Maybe publishers should start including warning labels on purportedly non-fiction books, alerting readers that they’re not responsible for the accuracy of the contents. Caveat lector: Read at your own risk.

For more of my posts, please go to Thomson Reuters News & Insight

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