The Lawsuits over James Frey's "A Million Little Pieces": Although the Author Has Conceded Fabrication, The Suits Should be Dismissed

The Smoking Gun, a website that posts damning and scandalous documents, photos and information, recently reported that James Frey's best-selling memoir, A Million Little Pieces, contains inaccuracies and fabricated events.

Frey's book, sold as a "memoir," purported to describe the author's own battle with drug and alcohol addiction and crime -- and his personal road to recovery. But as Frey himself finally admitted, the book contains substantial fabrications.

Indeed, it might better be classified, at least in parts, as fiction: In a new Author's Note, Frey now concedes that "I altered events and details all the way through the book." Frey claimed falsely, for instance, that he was involved in a particular train accident, and claimed that a few-hour jail stay had stretched on for three months.

Some readers have now decided to sue the book's publisher, Random House and the relevant subdivision, Doubleday, in three separate class action lawsuits, in Los Angeles, Illinois, and Seattle. Each suit alleges breach of contract, and negligent misrepresentation as well as consumer fraud, and each seeks millions of dollars in damages. Here, I'll concentrate on the misrepresentation claims.

In this column, I'll examine whether the suits will -- and whether they should -- succeed.

The Elements of Contractual Misrepresentation Have Apparently Been Alleged

The elements of a claim for misrepresentation are basic: Such a claim requires a "material" false or misleading statement, upon which the plaintiff justifiably relied, in such a way that she was induced to enter into a contract. The readers who are suing allege that they were enticed to buy Frey's book because the publisher represented it as a nonfiction memoir.

The class actions do seem to plead these elements. For instance, in the Los Angeles suit, the named plaintiff claims that she made her purchase "in reliance upon defendants' deceptive, fraudulent and false representations that the book was a non-fiction literary work." News reports indicate that she further states that she "would not have purchased the book had defendants truthfully disclosed that many of the events portrayed in the book were fiction."

In other words, she's saying that the publisher mischaracterized the book, that she believed the publisher, and that she purchased the book because it was supposed to be true.

Will The Suit Be Certified as a Class Action?

While the elements of contractual misrepresentation seem to have been properly alleged, class action certification is far from certain. A case cannot become a class action until a court holds that certain requirements have been met.

One such requirement is that there must be common issues of law and fact. Some issues here are common - but one factual issue is, arguably, extremely variable, depending on the plaintiff: The issue of justifiable reliance.

Is it really true that a given plaintiff would not have bought the book, had he or she known the truth about its content?

One can't just believe the plaintiffs' say-so on this crucial issue. Perhaps a plaintiff who has exclusively nonfiction books in her library might be able to prove reliance. But other plaintiffs may have a very hard time doing so. If a particular person sometimes buys and enjoys fiction, why not this particular fictional account?

And even if some readers believed a memoir to be true, should he or she not simply contact the publisher to seek a refund? Random House has already agreed to refund the purchase price to customers who bought the book directly from the publishing company.

In fact, plaintiffs who sue for contextual misrepresentation are only entitled to "rescind" their contract - which means they can "unwind" the contract and seek a refund of the purchase piece.

Damages Are Potentially Huge

These may be high-stakes suits - especially if they are certified as class actions. After all, putting the suits aside, if readers who simply ask the publisher for refunds, receive them - as I believe they ought to - the amount paid out could theoretically be quite large.

More than 3.5 million copies of the memoir, which was selected for Oprah Winfrey's book club, have been sold since it was published in 2003 by Random House's Doubleday division. The sale of Frey's book was further boosted when talk-show maven Oprah Winfrey - who has since told Frey she feels "duped" by him -- selected the book as one of her book club selections.

The potential damages may be large for several reasons.

Rather than having to "opt in" by writing a letter to a publisher for a refund, readers may be offered money unless they "opt out" of the class action. That would shift the playing field significantly: Many people vow to write companies to complain about products, but never do, but few refuse money offered to them for a defective product they bought.

The Seattle suit includes, as potential class action plaintiffs, anybody who bought the book from a Washington seller. That's very significant, for the bookselling titan Amazon.com is based in Seattle. Imagine if Random House and/or Doubleday must pay ever-single Amazon customer who bought "A Million Little Pieces."

Fraud claims (depending upon the relevant state consumer protection laws) may carry the risk of treble or punitive damages - which could go far above the purchase price of all the books bought by plaintiffs.

In the Seattle lawsuit, which also includes breach-of contract claims, readers are asking for compensation for the time they spent reading a book they thought was non-fiction but was partially fictional. Readers in Seattle are asking to be paid for their "wasted time". However, courts have denied similar "wasted time" claims before - so these damages demands may end up being dismissed.

And, in my view, they should be. How can the reader's enjoyment derived from the writing, be separated from his or her enjoyment derived from the false belief that he or she was reading the truth? And even if the two could be separated, isn't false enjoyment still enjoyment? And how is the lost time to be valued - given that it probably would have been spent reading a different book?

As with the reliance issue, the inquiry here is into highly subjective beliefs, feeling,s and choices - and that fact, again, may lead courts to feel that a one-size-fits-all refund should be all any plaintiff should get, insofar as compensatory damages go.

Did Random House And/Or Doubleday Truly Make Misrepresentations?

There's also another very thorny issue here, too: When Random House and/or Doubleday sold Frey's book as a memoir, was that claim false?

That depends on whether you think a memoir is inherently a purely nonfiction account. And many people hold a different view. Do we really believe every word of a politician's or movie star's memoir?

A memoir is a personal account -- not an academic book full of footnotes and citations, or an instruction manual that could cause mistakes in construction to be made. Often, publishers do not fact-check memoirs, perhaps understanding that some creative license, as well as subjective memory, is typically involved.

Frey's book, in particular, is a self-help, confessional memoir. And it turned out that Frey did help himself, and that the most basic substance of his confession, apparently, is true: No one disputes that Frey was an addict, and that he is not one now.

If these core facts are true, can the book still count as memoir? Reasonable minds can differ - which means, in my view, that courts should hesitate before attaching hefty damages to the sale of a "product" that also happens to be a First-Amendment-protected creative work. If the public can sue any time a memoir turns out to be false, the whole genre of memoirs will be redefined by litigation.

A Parallel: The "Beardstown Ladies Guide" Case

Just a few years ago, another case that provides a fascinating contrast with this one was litigated.

The book was the Beardstown Ladies Common Sense Investment Guide - a national bestseller for Hyperion Books, a Walt Disney imprint. The book claimed that the portfolio of these amateur investors had outperformed the top professional money managers, with a 23.4% rate of return over a ten-year period. This rate of return was prominently displayed on the book's cover.

A reporter for a Chicago magazine investigated the purported rate of return. An audit by the accounting firm of PricewaterhouseCoopers revealed that the actual rate of return was only 9.1%.

In 1988, in New York, a false advertising class action was filed, on behalf of some 800,000 book buyers, and dismissed. Another false advertising class-action lawsuit was filed in California - and approved for trial by the appellate court. The publisher then settled by offering each book buyer the chance to choose a new free book from its catalog. The publisher also paid a reported $1.4 million in legal fees and administrative expenses.

The First Amendment Issues Involved Are Important

In both suits, the publisher raised a First Amendment defense. Why the different results? Because each court took a very different view of how much First Amendment protection applied. The New York court concluded that the cover blurb was simply a summary of the editorial content of the book, and accorded it full First Amendment protection. In contrast, the California court saw the cover blurb as "commercial speech" - in effect, advertising, which arguably is entitled to less First Amendment protection.

The fact that even a book like that one - an investment manual that some buyers may well have followed - garnered some First Amendment protection, reminds us to be very cautious when assessing the merits of the suit based on "A Million Little Pieces," which probably didn't cause most readers to do anything but read (and, perhaps, seek help).

After all, we don't want our courts becoming the "truth police" for our memoirists. Might a conservative judge attach liability to Bill Clinton's recollections - or a liberal judge, to George W. Bush's?

Publishers are well-advised to start fact-checking the objective information in their memoirists' accounts - especially when, as with Frey's arrest records, that information is publicly accessible. But self-imposed new procedures are a far cry from court-imposed liability. About that, we should be careful, when, as is the case here, First-Amendment-protected speech is at issue.