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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

The Literary Class Action II – Three Cups of Tea

Posted in Certification

Greg Mortenson turned a passion for mountain-climbing and an interest in helping the women of Central Asia into a multimillion dollar charitable foundation and a bestselling book. The book, Three Cups of Tea, tells the story of how his failed attempt to scale K2 (considered one of the hardest peaks in the world) led to his founding a charity to build schools in Central Asia.

But since the time that Mortenson’s book hit the bestseller list, a number of people (including former supporter John Krakauer) have raised serious questions about whether Mortenson was telling the truth in Three Cups of Tea, and whether he has conducted his charity work properly. Last month, the CBS newsmagazine 60 Minutes aired a less-than-flattering segment on the controversy. Soon after that, a pair of Montana state lawmakers filed a class action against Mortenson and his charity, the Central Asia Institute

The complaint asserts claims for fraud, deceit, RICO violations, breach of contract, and unjust enrichment. Many of these claims are hard to certify. In particular, fraud-based claims (here, fraud, deceit, and RICO) will require individual proof of reliance for each class member.

What do I mean by "individual proof of reliance"? In this case, all one needs to do is look at the comments to the 60 Minutes article:

"I just started reading Three Cups of Tea a few weeks ago. None of what 60 Minutes is saying seems particularly shocking or surprising to me. For example, it probably does cost that much more to promote a book in the U.S. than it does to build 100 schools in Pakistan. I found the story to be engaging and inspiring, but also suspected all along that some of the facts were distorted to make the story flow better."

"After reading the book I was impressed that someone would have the courage and faith to do what he claims to have accomplished, even if only some of it is true, it was a remarkable acheivement. "

"While I had some caveats while reading Mr. Mortenson’s book (3 Cups), I nevertheless am essentially disgusted by the assumptions and arrogance of outside entities (going in well after the fact) that expect all transactions and processes in places like mountainous Pakistan and Afghanistan to have proceeded along idealistic and unreal American "standards" – which don’t exist, anyway. Who do they think they’re kidding?"

"I’ll reserve judgment on Greg Mortensen, at least for now. Success isn’t permanent. Failure is not fatal. I’ll continue to recommend his books for the lessons learned, and I’ll wait to see how Greg Mortensen’s legacy plays out."

Assuming each of these commenters bought the book they read, each one is a member of the proposed class. And none of these class members believe they were deceived. There are many reasons to buy a non-fiction book; some may be looking for the most truthful account possible of a story, but some may in fact buy a book knowing it’s likely to contain bias or even outright falsehood. Whoever Mortenson’s attorney is, she could spend some quality time harvesting comments like these to show that proving liability will require different evidence for each putative class member.

Moreover, the fact that this lawsuit was filed by a pair of Montana lawmakers implies that this lawsuit may be more about scoring political points than about repairing any particular damage. (Legislators have many, varied reasons for filing lawsuits, not all of which will line up with consumers’ interests.)

It may be that the plaintiffs’ lawyers here are not looking to certify a full class. Given the severity of the negative publicity that has attached to Mortenson, they’re likely banking on turning the lawsuit into a quick settlement. Authors and publishing houses rely heavily on publicity for their marketing, which means that they’re unlikely to want to risk too much bad publicity.

No matter how this lawsuit turns out, however, it forms the latest example of the literary class action–and we can certainly expect to see more of these in the future.

  • http://www.whoisyourlawyer.com Robert Scott Lawrence

    So does this presage a spate of lawsuits by readers who are unhappy to learn their favorite author exercised a bit of literary license with the facts when telling his tale? All the people who cried themselves to sleep at night when they found out James Frey’s A Million Little Pieces wasn’t precisely an autobiographic verity can now demand their money back if he didn’t fall off a fire escape and snap off all his front teeth? It’s not like the non-fiction section ever really promised to tell the reader “the truth, the whole truth, and nothing but the truth.” I’m pretty sure OJ’s book about hunting down Nicole’s killer hit the non-fiction aisle, too, as did some biographies of recent note that played a bit fast and loose with the truth.
    Another silly lawsuit, when all is said and done.

  • Richard Ross

    If you watched the 60 Minutes piece, the chief complaint was less about the book and more about the fact that proceeds from the charity were used to promote the book yet none of the proceeds from the book benefited the charity. Could a cogent class action be formed of book buyers? Probably not. Could donors put together a compelling case? Absolutely.