25 January 2013


Shades of the class action against Greg Mortenson in news of a class action in California over memoirs by Lance Armstrong.

The class-action complaint was filed in federal court in Sacramento against Armstrong and publishers Penguin and Random House for fraud and false advertising for selling Armstrong's It's Not About the Bike and Every Second Counts as works of non-fiction. The plaintiffs claim that they purchased the books as non-fiction and accordingly felt "duped", "betrayed" and "cheated" after Armstrong revealed that his performance as a cyclist had been illicitly 'enhanced' through use of chemicals. So much for years of vehement denial by the sports star (or for gullibility on the part of fans regarding Armstrong's record seven Tour de France titles in a sport with a long tradition of doping).

I've written elsewhere that latitude for exaggeration, deliberate elision or imperfect recall has meant that there is little case law regarding claims by readers for damages from authors (or publishers) over fictions that were marketed as "searingly truthful". Authors presenting manuscripts to agents and publishers or film-makers may be guilty of fraud but are not on oath and thus do not breach expectations regarding perjury.

Most litigation has accordingly involved -
  • efforts by publishers or third parties such as film producers to claw back payments made to authors on the basis that the author was providing an accurate account of their own life rather than an overheated fantasy
  • defamation action by relatives or associates of the memoirist.
In responding to a class action in 2006 James Frey and Random House unusually agreed to provide refunds to individuals who purchased A Million Little Pieces, the supposedly truthful memoir unkindly described by one critic as A Million Little Lies. Neither the publisher nor author admitted liability. The refund was not offered outside the US.

Random indicated that it was concerned about fraud on the part of buyers (authorial creativity is apparently another matter). The refund was thus conditional on consumers providing both proof of purchase (eg extracting a page from the book) and a sworn statement declaring "that they would not have purchased the work had they known that Frey had not been entirely straightforward in his account".

It has been reported that the plaintiffs' lawyers received US$783,000 (compared to Frey's earnings, at the time of settlement, of US$4.4 million). Some 1,730 people were members of the action, substantially less than the 3.5 million people who purchased the book. The refund per person is reported as US$15.81. Do the maths.

Points of entry to the legal literature are Jessica Lewis, 'Truthiness: Law, Literature & the Problem with Memoirs' (2007) 31 Rutgers Law Record 1-17; Samantha Katze 'A Million Little Maybes: The James Frey Scandal and Statements on a Book Cover or Jacket as Commercial Speech' (2006) 17 Fordham Intellectual Property, Media & Entertainment Law Journal 206-23; Jason Kessler, 'First Amendment Protection for False Commercial Speech by a Publisher Regarding the Truthfulness of Its Publication: A Response to Litigation Arising over James Frey's A Million Little Pieces' (2006) 24(3) Cardozo Arts & Entertainment Law Journal 1219-1238.