Feeling betrayed by Lance Armstrong, now that he has admitted
his heroic return to the Tour de France championship after
nearly dying of testicular cancer was drug-assisted? Who isn't?
Armstrong's admissions last week were riveting precisely because
the personal story he recounted in his best-selling memoirs --
"It's Not About the Bike" and "Every Second Counts" -- was so
inspiring. It was the books, as well as the bike, that made
Armstrong a hero.
Do the books also make him a fraud? Two California men, Rob
Stutzman and Jonathan Wheeler, filed a statewide class action
Tuesday in federal court in Sacramento, claiming that Armstrong
and his publishers violated state consumer, false advertising
and fraud laws when they sold supposedly non-fiction books that
were filled with lies. Stutzman, a public relations executive
who served as a deputy chief of staff for former California
governor Arnold Schwartzenegger, and Wheeler, a chef and amateur
cyclist, claim they bought the books because they believed in
Armstrong. "When Armstrong confessed doping to (Oprah) Winfrey,"
the complaint said, "Stutzman felt duped, cheated and betrayed"
and Wheeler was "disappointed ... cheated and betrayed." Lawyers
for the purported class of Armstrong book buyers, Wilentz,
Goldman & Spitzer and the Law Office of Tracey Buck-Walsh, argue
that readers in California are entitled to restitution and
possibly statutory and punitive damages for deceptions that they
say Armstrong's publishers should have detected (even though
drug testers at international cycling competitions, including
the Olympics, didn't).
You may recall that we've been down this road before, after
the supposed humanitarian Greg Mortenson admitted that parts of
his best-selling memoirs "Three Cups of Tea" and "Stones into
Schools" had been fabricated or embellished. His readers also
cried fraud, and, following the example of readers who wrung a
$2.75 million settlement from literary hoaxer James Frey, sued
Mortenson and his publishers for racketeering, fraud and breach
But as I wrote last May, when U.S. District Judge Sam
Haddon of Missoula, Montana, tossed the Mortenson readers' case,
the Frey settlement was an anomalous victory for aggrieved book
buyers. Haddon's opinion described the long history of
unsuccessful litigation over inaccuracies or untruths in
supposedly non-fiction books, concluding that publishers have no
implied duty to book buyers to assure the accuracy of their
products. In one famous case that parallels those against
Mortenson and Armstrong, readers brought claims against the
publishers of "The Beardstown Ladies' Common Sense Investment
Guide," after it turned out that the Beardstown Ladies weren't
actually as good at investing as the book made them out to be.
State appeals courts in New York and California ruled that the
publishers nevertheless weren't liable to readers who followed
the ladies' investment advice.
There is one potentially significant difference between the
Mortenson case and the new Armstrong class action: The complaint
against Armstrong and his publishers, Penguin and Random House,
asserts claims under California's notoriously
plaintiffs-friendly consumer protections laws. The Mortenson
case, by contrast, featured Montana and federal-law causes of
action. I called lawyers in the Armstrong case to ask how the
California laws would permit them to succeed when so many
previously duped readers have failed, but they didn't call back.
Name plaintiff Stutzman also didn't respond to a message I left
at his public relations firm.
Penguin will be represented in the Armstrong suit by Dorsey
& Whitney, which won the Mortenson case for the publisher. You
can be sure Dorsey lawyers will raise the same First Amendment
and implied duty defenses in the new case as in the previous
one. Dorsey partner Jonathan Herman declined to comment on how
the publisher will respond to the Armstrong complaint's
California-law claims but said, "As far as we're concerned, this
is also a case that should be dismissed."
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