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False Memoirs and Other Misbehavior

Co-Author Gerald M. Levine

What better to start the New Year than with grimy tales about authors, literary agents and publishers?

It cannot truthfully be said that in the annuls of publishing there has not been false memoirs and other misbehavior including deliberate misrepresentations, breaches of contract and “extraordinary” fraud. One such (you may remember because it reached the pinnacle of daytime entertainment with the author’s appearance on the Oprah Winfrey show) was the case of A Million Little Pieces, a class action composed of readers from at least five states who claimed to have been defrauded by Random House, Inc. and the author, James Frey for misrepresenting the author’s work as a memoir. The several cases around the country expressing readers’ outrage were ultimately consolidated and transferred to the Southern District of New York. The litigation outcome (settlement by the parties) benefitted some charities in an undisclosed amount listed in a Final Judgment and (very handsomely for plaintiffs’ counsels) awarded attorneys fees exceeding three-quarters of a million dollars. The social outcome exposed the author to public censure. In a subsequent interview, Frey reportedly said that he stood “by the book as being the essential truth of my life.” But, fiction is not memoir so after the knock about in federal court Random House repackaged the work to reflect its proper genre.

A more exciting case was litigated in Massachusetts, ultimately pitting one fraud doer (authors really shouldn’t make things up and pass them off!) against one even more voracious. In its first incarnation the author and her collaborator sued the publisher and literary agency for breach of contract and fiduciary duty. The book, a Holocaust memoir was not successful in the United States but was a best seller in several European countries. The jury awarded author $7.5 million and her collaborator $3.3 million. The judge found that Daniel and Mt. Ivy had wilfully and knowingly engaged in conduct designed to deprive Defonseca and Lee of royalties and other compensation and trebled the jury’s award, which the court affirmed on appeal. Lee v. Mt. Ivy Press, L.P., 63 Mass. App. Ct. 538 (2005).

In summarizing the experiences in the memoir as the author depicted them and the evidence that emerged at trial the court stated:

Shortly after the Nazis seized her parents, seven year old Misha Levy fled alone to the forests and villages of Europe, where she wandered for four years. Along the way, she witnessed atrocities, found herself trapped in the Warsaw Ghetto, and killed a Nazi soldier in self-defense. Miraculously, she survived her ordeal, 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. Needless to say, her story was compelling. Fifty years later, she would sell it to Mt. Ivy Press, L.P. (Mt. Ivy), and its sole employee, Jane Daniel, who also convinced soon-to-be former friend Vera Lee to help write the book (or “Work”). Turning to the final chapter of this sad legal tale, the actions of Daniel, her company, and her agent, Palmer & Dodge LLP, ultimately resulted in a judgment of $32.4 million against Daniel and Mt. Ivy, which forms the basis of this appeal.

The factual basis for the award in this “sad legal tale” was Daniel’s rapacious and fraudulent conduct. The “buzz” concerning the book had generated a significant amount of interest from foreign publishers. In July, 1996, well ahead of the book’s publication in English, Mt. Ivy sold the German rights, receiving a $135,000 advance. At this point Daniel “began plotting to remove [the collaborator] from the project, falsely complaining to [her] about the quality of the book and [her] writing ability. It then got worse:

Daniel had also begun rewriting the book even before she had received a final draft from Lee. To facilitate her fraudulent efforts to obtain a personal interest in the book, Daniel executed a work-for-hire agreement with Mt. Ivy in October, 1996. Neither the collaborator nor the author knew about this agreement. The trial judge found that the work-for-hire agreement — essentially a contract between Daniel and herself — ‘was a scam orchestrated by Daniel solely to withhold monies lawfully owed by Mt. Ivy to [the collaborator and author]’.”

Fast forward to the reincarnation of the case, featuring this time round the publisher as plaintiff suing the author and collaborator to set aside the damages award from the first case on the grounds that the author’s memoir was a fabrication. The court noted that “[a]t all material times during the prior trial and appeal, Defonseca held out her story as a true and authentic account of her childhood in Europe during World War II,” but “when confronted with evidence unearthed by Daniel and others, Defonseca admitted that her Holocaust memoir was a hoax.” Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct. 340 (2010), further appellate review denied, 459 Mass. 1103 (2011). A Boston Globe article of February 28, 2008 reported that Defonseca candidly “acknowledged” that “every essential element of her autobiography [was] false, that her trial testimony was perjured and that every document she filed with the [Superior] Court when acting as her own counsel, was intended to mislead the Court and the jury.”

The court agreed with the corporate publisher and its president as to the author and set aside the award, but the fraud doer president didn’t get off scot free for his misbehavior. It let stand the award to the collaborator because “[t]he plaintiffs have not alleged that Lee has committed any fraud or misconduct, let alone the kind of extraordinary fraud that could justify setting aside an eight year old judgment.”

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