Alex Beam

Reading, writing, and suing

Class action lawsuits against authors are still rare, but are becoming less so

By Alex Beam
Globe Columnist / June 24, 2011

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Oh, the perils of publishing a book. Your dreamy, supportive editor gets fired in the latest downsizing. The marketing budget — ha, ha! What marketing budget? The Globe, The New York Times, and NPR can’t shut up about so-and-so’s undeserving piece of hackery. Hey — how about reviewing me?

To the litterateur’s litany of woes we add: the class action lawsuit.

It’s a stretch, legally speaking, but the ever-creative plaintiffs’ bar never runs out of ideas. 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.

S & S filed an aggressive response to a class action complaint from lawyer David Schoen, who has temporarily backed away from his attack on Jimmy Carter’s controversial 2006 tome, “Palestine: Peace, Not Apartheid.’’ In his plaintiffs’ lawsuit, Schoen said Carter’s book was “an anti-Israeli screed’’ characterized “by falsehoods, misrepresentations, misleading statements, omissions of material facts and outright lies.’’

More recently, two plaintiffs in Montana sued local resident Greg Mortenson and Penguin, which published the gajillion-selling “Three Cups of Tea,’’ a heartwarming tale about all the nice things that happen to strangers in the wilds of Central Asia. The sequel, “Stones Into Schools,’’ sold pretty well, too.

The Montana suit alleges that the author and publisher “have repeatedly fabricated material details in the books ‘Three Cups of Tea’ and ‘Stones into Schools.’ The purpose of these fabrications was to induce unsuspecting individuals to purchase these books and feel good about Mortenson, thinking he was such a humanitarian for the sole benefit of children. These fabrications have generated significant sums of money for Mortenson . . .; and Penguin in the form of book sales.’’

Neither Mortenson nor Penguin has replied to the suit, and the publisher ignored my request for comment.

What’s going on? “This is part of the evolution of the class action lawsuit,’’ explains Walter Olson, founder of the website “For a long time the courts only listened if you could prove the defendant liable, and that everyone had suffered. Now there have been several waves of rulemaking that have liberalized the standards.’’

Case in point: A few years ago, a purported class of customers sued Random House, publisher of James Frey’s “A Million Little Pieces,’’ a supposed nonfiction memoir that contained fictional passages. “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.

The lawsuit against Carter seems particularly wild-eyed, as it bumps up against his First Amendment right to express his opinion about the Israeli-Palestinian imbroglio. Practically the first line of Simon & Schuster’s legal brief reads, “This lawsuit strikes at the very core of the First Amendment’s commitment to free and open debate.’’ I agree with the publisher’s assertion that Schoen & Co. “seek nothing more than to exact punishment because they disagree with the contents of the book.’’

Olson calls it “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.’’ Schoen, who didn’t return my call, has been making noises about refiling the lawsuit in a different court.

What’s next? A class action suit against the Globe’s sports section for under-covering the New England Revolution? I guess I shouldn’t be giving anyone any ideas.

Another class-ic Whatever happened to the class action lawsuit against Power Balance “performance enhancing wristbands’’ that named retired Boston Celtics center Shaquille O’Neal as a codefendant? According to the case docket in Los Angeles, the warring parties reached a settlement in March, which promised a refund to anyone who thought they had been defrauded by PB. Likewise, the company agreed to stop running ads that made extravagant claims for the doohickeys’ restorative powers. But this week the presiding judge tossed out the settlement, citing questions about Power Balance’s financial viability. This is not a subject the parties care to discuss.

Alex Beam is a Globe columnist. His e-dress is