24 August 2014

Wolves and survivor fraud

The Massachusetts Court of Appeals has ordered Misha Defonseca - famous for the deeply implausible 1997 Holocaust memoir - to forfeit her share of a US$32.4 million judgment that she won from her publisher Mt Ivy Press and the publisher's principal, Jane Daniel, in 2005.

Defonseca and ghostwriter Vera Lee were awarded the money in a 2001 Middlesex Superior Court judgment regarding rights: the ghostwriter sued Daniel (arguing that her rights as coauthor had been violated) and Defonseca alleged that the publisher hid profits in offshore corporate accounts and broke promises to publicise the book. The jury in that case awarded US$7.5m in damages to Defonseca and US$3.3m to Lee. The judge tripled the damages, to nearly US$10m for Lee and US$22.5m for Defonseca, because of the allegedly egregious conduct. The jury also awarded rights in the book to Defonseca, who sold it to several European publishers. It became a film in France.

Daniel responded by research into the truth of Defonseca's tale. As I've discussed elsewhere in talking about identity crime, the egregious exploitation by Defonseca of the Holocaust was bizarre and deeply repugnant. Adoption by and long-distance travel with a pack of wolves?

Daniel determined that Monica Ernestine Josephine De Wael (Defonseca's real name) was enrolled in a Brussels school in 1943 instead of traipsing around Europe with her furry friends. She wasn't Jewish. There were no wolves. There were no 3,000km journeys through the snow.

On the basis of the research Daniel and Mt. Ivy sought to have Defonseca's judgment vacated. They were initially unsuccessful, with the Court noting that action was out of time. In 2010 the Massachusetts Court of Appeals decided that the publishers had a case, commenting that the plaintiffs "have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict".

Defonseca appealed, arguing that even though her story had been proven false, she believed it was true during the book-publication process. Belief, it appears, is everything. "This story is mine. It is not actually reality, but my reality, my way of surviving". The same might also have been said by Mortenson, Frey, Wilkomirski, Armstrong and other memoirists.

In affirming the 2010 judgment the Massachusetts Court of Appeals commented that
Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was reasonable. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations.
In Mt. Ivy Press, L.P., & another vs. Misha Defonseca the Court stated
This is the third, and hopefully the last, of a trilogy of cases that have played out before us. [FN3] Having twice before considered issues relating to the publication of the defendant's memoir of survival during the Holocaust (the details of which have now been revealed as false), we are now asked to decide whether it was proper for the court below to vacate a substantial judgment against the plaintiffs. We conclude that it was.
In 1995, Misha Defonseca entered into an agreement with plaintiff Jane Daniel and her company, Mt. Ivy Press, L.P. (Mt. Ivy), to publish a memoir of her experiences in Europe during the Holocaust. Entitled Misha: A Mémoire of the Holocaust Years, the work told the harrowing story of Defonseca's survival as a young girl during the Holocaust "thanks to her strong will and guile as well as, incredibly, the aid of a pack of wolves, who 'adopted' and protected her, providing food, companionship, and affection." The story even included her killing a Nazi soldier.  Mt. Ivy I, 63 Mass.App.Ct. at 539. Since English was not Defonseca's native language, she was paired with a ghostwriter, Vera Lee, to assist in the writing of the book. See id. at 540.
Throughout the publication process, Mt. Ivy and its principal, Jane Daniel, engaged in many highly improper representations and activities which need not be detailed here. See Mt. Ivy I. Suffice it to say that the improprieties resulted in a jury verdict against Daniel and Mt. Ivy in favor of Defonseca in the amount of $7.5 million, and for Lee in the amount of $3.3 million. The trial judge found for Lee and Defonseca on their G.L. c. 93A claims, and trebled the damages, resulting in judgments of $9.9 million for Lee and $22.5 million for Defonseca. See Mt. Ivy I, 63 Mass.App.Ct. at 546. This court affirmed the judgments. Id. at 562.
Following our decision in Mt. Ivy I, in a saga also worthy of a book or movie, Daniel doggedly pursued the question whether, in fact, Defonseca's tale was true.  Defonseca had claimed to have no knowledge of her true name, believing that she was the daughter of a Jewish couple named Reuven and Gerusha (she did not know their surname), and that she had been assigned the identity of Monique De Wael to protect her from the Nazis. Against this backdrop, Daniel pursued her inquiries. 
Among other efforts, Daniel secured the discovery assembled by her former attorneys. While sifting through the various documents, she came upon what appeared to be an innocent bank record. Startlingly, the document contained information, provided by Defonseca to the bank, indicating her date of birth, place of birth, and her mother's maiden name.
Armed with this information, Daniel expanded her search, seeking Defonseca's official records in Belgium. Stymied by the country's privacy regulations, Daniel contacted a genealogist in Belgium who investigated Catholic baptismal records in Etterbeek. Information was discovered corroborating that found in the bank record.
With smoking gun in hand, Daniel returned to court to right what she perceived to be Defonseca's wrong. Daniel and Mt. Ivy filed an independent action under rule 60(b), arguing that the hefty judgments be vacated. The plaintiffs met with defeat. In the trial court, the motion judge (first motion judge) dismissed the claim for failure to show "extraordinary circumstances" that might warrant relief under rule 60(b)(6).  See Mt. Ivy II, 78 Mass.App.Ct. at 345, and cases cited. The plaintiffs appealed, and the case returned to our court, where their fortunes partially turned.
In Mt. Ivy II, we reversed the judgment insofar as it dismissed the claim against Defonseca, observing that "[Daniel and Mt. Ivy] have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as [Defonseca] point[s] out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.... It is equally implausible to suggest that the information, if it had been presented to the jury, would not have affected the substantial rights of the parties." Mt. Ivy II, 78 Mass.App.Ct. at 348 (internal quotation marks and citations omitted). 
Thereafter, Daniel and Defonseca engaged in discovery proceedings in Superior Court, and in July, 2012, a judge of that court (second motion judge) allowed the plaintiffs' motion for summary judgment on their complaint for rule 60(b) relief, vacating the underlying judgment for Defonseca.  Before us, Defonseca appeals, claiming that the second motion judge erred in allowing the plaintiffs' motion for summary judgment on their independent action for rule 60(b) relief. ....
The present case is unique. The falsity of the story is undisputed. The summary judgment materials in the record appendix establish that Defonseca was born Monica Ernestine Josephine De Wael, on May 12, 1937, in Etterbeek, Belgium, and was baptized on May 19, 1937. See note 8, supra.
Under oath, Defonseca averred that, notwithstanding her present understanding that her story was false, she believed throughout the book production process and trial underlying Mt. Ivy I that her story was true; her parents were in fact taken away when she was four years old and murdered in Nazi concentration camps;  and, last, she believed herself to be a Jew, and in fact joined a temple and was bat mizvahed after she emigrated to the United States.
The book contract between Defonseca and Mt. Ivy provided: "The Author [Defonseca] represents and warrants ... that ... with respect to the Work as submitted by the Author, ... (vii) all statements of fact are true or based upon reasonable belief." Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was "reasonable."  We also acknowledge the findings of the first motion judge in his memorandum on the rule 12(b)(6) motion, that the plaintiffs' conduct "is not made any less egregious because of what we now know." See note 9, supra. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations. See Mt. Ivy II, 78 Mass.App.Ct. at 348. The underlying judgment in Mt. Ivy I must therefore be vacated. 
This case has had a legal life of over fifteen years.  All involved have been bloodied. Defonseca's story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately, as evidenced by the still valid multi-million dollar judgment against her in favor of Vera Lee, the one least blameworthy person in the entire affair. Hopefully the saga has now come to an end.