The non-fiction class action

By Andrew Trask

The non-fiction author has all kinds of worries.  He may get his facts seriously wrong, in a very public forum.  His books may not sell.  Even if his books do sell, he may be sued for libel (the print version of slander), especially in Europe.  And, in the past few years, a new threat has been slowly emerging: if he get enough things wrong, he can be the subject of a class-action lawsuit.

A class action is a legal device that allows a plaintiff to aggregate a large number of similar claims into a single lawsuit. If the plaintiff can convince the court the claims are similar enough, the court certifies the case as a class action. Once the class is certified, the plaintiff offers proof of her claim at trial. If she wins, so do the class members; if she loses, then the whole class loses with her. (Class actions rarely go to trial, though. The potential exposure is so large that most defendants will settle without trying the case.)

The literary class action emerged [first emerged?] in 2006, on the heels of the James Frey scandal.  For those who may not remember, James Frey wrote an addiction “memoir” called A Million Little Pieces. The book, in which Frey claimed to have struck a policeman with his car and later spent 87 days in jail, was so popular that it became an Oprah’s Book Club selection.  After true-crime website The Smoking Gun revealed that he had made up much of his harrowing story, Oprah apologized to her readers, and brought Frey back on the show specifically to call him out in front of an angry audience.

Before one could say “Don’t mess with Oprah,” a class action was brought on behalf of those who had bought Frey’s book believing it to be the truth, which Frey’s publishers quickly settled for $2.35 million.  Ultimately, the settlement yielded less than $35,000 to the class, $235,000 to a designated charity, and as much as $788,333.33 to the lawyers.

Perhaps in part due to the lucrative fees involved, several other class-action lawyers have brought variations on the Million Little Pieces suit.  The most notable recent defendant has been Greg Mortensen; the most worrying, former President Jimmy Carter.

The Mortenson lawsuit followed the same general path as the Frey lawsuit.  Mountain-climbing enthusiast Greg Mortenson published a memoir, Three Cups of Tea: One Man’s Mission to Promote Peace … One School at a Time, about his efforts to build a school in a village that had nursed him through some severe mountain-climbing injuries. A few years after Mortenson’s book reached the bestseller list, critics (including his former cheerleader John Krakauer) publicly voiced doubts about whether the memoir was accurate, and whether he was conducting his charitable activities properly. The tough press coverage culminated in a segment on the CBS newsmagazine 60 Minutes. Soon after the segment aired, a pair of Montana state lawmakers filed a class action against Mortenson and his charity, the Central Asia Institute.

The Frey and Mortenson class actions share several common features, including the genre of personal memoir, the eruption of media scandals, and denunciations by more-popular figures (Oprah for Frey, Krakauer for Mortenson).  If these were the only examples of the non-fiction class action, conscientious authors could probably breathe easy.  After all, the best way to prevent a non-fiction class action would be not to lie in print about one’s experiences, admirable (did Mortenson really build all the schools he claimed?) or otherwise (did Frey really spend 87 days in jail, or just 3 hours?).

But the third class action is a little different, and a little more disturbing.  It was brought against former President (and Nobel laureate) Jimmy Carter, alleging that he made misrepresentations in his book Palestine: Peace Not Apartheid.  Like Frey’s and Mortenson’s books, President Carter’s did spark a media controversy (if not quite a scandal).  Unlike the coverage of Frey and Mortenson, no one accused Carter of lying about his personal experiences.  Instead, the class-action complaint takes issue with Carter’s discussion of long-standing political controversies like the proper interpretation of UN Resolution 242 and the current status of the Road Map for Peace.  As the persistence of these debates demonstrates, these are not easily-established facts; they are–all by themselves–highly political and extremely contentious.

It’s this lawsuit that reveals the worrying trend behind the non-fiction class action. Class actions, because of their ability to change a claim for a $25 refund into a bet-the-bank lawsuit, are the WMDs of litigation.  When the defendant is an admitted fabulist peddling a personal memoir with easily-debunked claims, it’s hard to find anyone who will object except tort reformers and class-action defense lawyers.  But when class-action lawsuits target participants in a political debate, no matter how controversial their views, it seems a lot more like stifling controversial speech than protecting consumers.  And that’s a worry the careful non-fiction author should not have to entertain.

Andrew Trask, co-chair of the Securities Class Action Group at McGuireWoods LLP, is the co-author of The Class Action Playbook, and discusses class-action strategy at Class Action Countermeasures. Read his previous posts here.

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