The suit is by some readers who claim they bought the book and felt it was full of inaccuracies. They sued for breach of contract, unjust enrichment, negligent misrepresentation , intentional misrepresentation and consumer protection act violations. The argument they make is that the publisher and author advertised the book as nonfiction. They claim they were misled into buying the book based on this false representation. They seek to have a class action certified on behalf of all readers who bought the book and felt deceived. They want their money back.
The New York Consumer Protection Act provides:
The term "false advertising" means advertising, including labeling, of a commodity, ... if such advertising is misleading in a material respect. In determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity or employment to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.
The New York Consumer Protection Board’s website focuses on misleading advertising tactics such as bait and switch, misleading pricing, and other truly deceptive advertising practices. This law does not seem to be intended to help consumers who just don’t like the product they bought, especially after they fully consume it. That would be like saying you could eat food, say you didn’t like it, then sue the food manufacturer for claiming their food is tasty. These consumers bought a book and read it. They got hours of use out of it. The book was a book, as advertised. It was priced as advertised. To use consumer protection laws in this way makes a mockery of them.
Let’s think about this for a minute. If this suit is successful, can I sue Glenn Beck, Ann Coulter and anyone else whose books I think are false and misleading? Can I sue for a refund if a publisher advertises a novel as good when I think it’s awful? Can we sue every time an author uses a pseudonym?
The lawyer on this case says, “Mr. Carter is entitled to write or say anything in the world that he wants, no matter how false, about Israel or any other subject. But you can be sure [Simon & Schuster] had a purpose in marketing it as a work of non-fiction that purports to depict these events as they actually happened and then encouraged people to buy the book on that basis. That was not a true representation of what the book is, but they profited on that, knowing that it was not what they said.”
The lawyers filing the suit claim it is the first time a former President and a publishing house have been sued for violating consumer protection laws by knowingly publishing inaccurate information while promoting a book as factual. Unfortunately, it’s not the first time a publisher has been sued for consumer protection violations.
The reason we need to be worried about this is that James Frey’s fraudulent memoir paved the way. He wrote a book claiming it was nonfiction, then it turned out to be largely fictional. Readers sued in droves under consumer protection laws, claiming they were deceived and wouldn’t have bought the book had it been labeled nonfiction. The problem is that, instead of fighting, the publisher settled. They figured they weren’t setting a precedent because the case was so unusual.
If Simon & Schuster settles this case, the floodgates will open. Lawyers will be digging up unhappy readers all over the country to sue over nonfiction they don’t like. One poorly researched fact, one opinion not labeled as such, one misstatement, and every author and publisher of nonfiction will be at risk.
Then fiction will be next. Advertise a book as “exciting” but a reader finds it boring? Lawsuit. Say it’s a romance when the reader thinks it’s really more sci fi? Lawsuit. Call it a novel when it’s really a novella? Lawsuit. Will it ever end? Not until the publishing industry is dead.
How do I know this? Because I know my legal colleagues. If they smell money, they’ll swarm. Law firms will open entire deceptive book advertising departments. The Bars will form deceptive book advertising practice sections.
When publishing is sucked dry (or maybe before), movies will be next. Documentaries will be the first ones attacked. Misquotes and mistakes will bring the class action lawyers running. Don’t like the latest action flick? Sue the bastards.
Every publisher with a legal department needs to file an amicus (friend of the court) memorandum or brief to support Simon & Schuster and Jimmy Carter, right now. Authors with enough resources to hire lawyers should follow. Simon & Schuster needs to stand up and fight, and we need to back them. The Author’s Guild, Society of Authors, and every organization of publishers, librarians and authors need to sound the alarm, and support Simon & Schuster any way they can. The MPAA needs to be as worried about this as the cases on publicity rights. They should weigh in here too.
Danger Will Robinson. Here there be dragons.