Sometimes a book is judged by its cover, as the publisher of The Beardstown Ladies’ Common-Sense Investment Guide discovered when lawsuits on behalf of some 800,000 purchasers of that book were filed in both New York and California. The case offers a cautionary lesson in what can go wrong when a publisher is too enthusiastic in touting a book on its cover.
The Beardstown Ladies Investment Club came to the attention of the national media in the 1990s when the portfolio of these amateur investors outperformed even the hottest mutual funds and smartest professional money managers. The rate of return on their investments over a 10-year period was 23.4%–or so the ladies claimed.
The problem for the publisher began with the decision to put the impressive rate of return on the covers and jacket copy of the books in which the ladies shared their investment strategies. With more than a million copies in print, the series was a national best-seller for Hyperion Books, an imprint of the Walt Disney Company’s publishing division.
A reporter for a Chicago magazine challenged the claim, however, and an audit by the accounting firm of PricewaterhouseCoopers revealed that the actual rate of return was only 9.1%. The ladies ultimately conceded that the claim was simply wrong, the result of their own mistakes in toting up the numbers.
Cheryl Lacoff, an aggrieved buyer of The Beardstown Ladies’ Common-Sense Investment Guide, was mad as hell about the puffery and decided to do something about it. She’s the one who filed a class-action lawsuit against the publisher in New York in 1998 on behalf of some 800,000 readers who bought the book. A second class-action lawsuit was filed in California, and both cases were based on the same basic legal theory–by overstating how much money the Beardstown Ladies had made in the stock market, the publisher allegedly defrauded the buyers and readers of the books.
The Perils of the Puff
Authors and publishers, of course, face a number of legal risks when they put a book on the market. The most common claims against them are copyright and trademark infringement, libel, and invasion of privacy, but these claims rarely result in the filing of lawsuits and even more rarely result in verdicts against authors and publishers.
Now and then, a publisher may be sued for “negligent publication”–that is, a plaintiff may claim that the information and advice in a book was defective in some way and caused an injury to the reader who relied on it. Such cases are even less common–and generally less successful–than the more conventional claims.
The two cases brought against the publisher of The Beardstown Ladies’ Common-Sense Investment Guide, however, were based on an entirely different and novel legal theory–the claim that the cover blurb amounted to false advertising.
The notion that products must do what their makers claim they will do is commonplace in advertising and marketing circles, and various regulatory agencies such as the Food and Drug Administration and the Federal Trade Commission will take action against the advertiser whose claims are false and misleading. Companies in a particular industry will sometimes rely on false advertising and similar legal theories to stop a competitor from making false claims and misleading product comparisons (one especially bitter case involved two companies specializing in the home delivery of pizza).
But it is rare indeed for a publisher to face such a claim simply because a cover blurb or a bit of jacket copy turned out to be not strictly accurate. And that’s why the Beardstown Ladies cases offer a cautionary lesson to publishers who are tempted to “puff” their advice and instructional books by exaggerating what they will actually do for those who buy, read, and use them.
East Coast, West Coast
The two cases also illustrate how different courts–even when they are considering the same facts and applying the same legal theories–sometimes come to different and even opposite conclusions. The case filed in New York against the publisher of The Beardstown Ladies’ Common-Sense Guide was dismissed by the trial judge. In contrast, the one filed in California was approved for trial by the appellate court; the publisher then quickly decided to settle by offering each buyer of the offending Beardstown Ladies book the opportunity to pick a free book from its catalog and by absorbing a reported $1.4 million in legal fees and administrative expenses.
Each court, as it turned out, took a very different view of what kind of legal protection is extended to “commercial speech,” a term that generally applies to advertising, under the First Amendment. The New York court, concluding that the cover blurb was essentially a summary of the editorial content of the book, ruled that “the First Amendment requires that even some falsehood be protected,” and dismissed the class-action suit in its entirety. But the California court saw the cover blurb as “commercial speech” and decided that the blurb is entitled to less protection under the First Amendment than, for example, the contents of the book on which it appears. On that basis, the court ruled that the plaintiffs were entitled to their day in court.
A Healthy Caution
We will never know whether or not the preliminary ruling in the California case would have been upheld on appeal to a higher court since the publisher decided not to risk a jury verdict. And because neither of the two Beardstown Ladies cases set a legal precedent, publishers still do not know with certainty whether the First Amendment protects them from overenthusiastic cover blurbs or jacket copy. But the practical repercussions–including the fact that Hyperion may be called upon to give away hundreds of thousands of free books–are enough to put publishers on notice about the dangers of puffery.
Indeed, the cases call attention to a neglected aspect of the publishing enterprise. Some authors and publishers go to the trouble of having their manuscripts “vetted” by publishing lawyers in an effort to find and fix potential legal problems. Few, however, bother to submit their advertising, publicity, catalog, or cover and jacket copy for legal review. And yet, as Hyperion discovered, an ill-considered word or image that appears outside the book itself can draw a lawsuit.
Other publishers have learned the same hard lesson. Barricade Books, the Fort Lee, New Jersey publisher of a biography of casino mogul Steve Wynn, for example, was sued for libel over a statement that appeared not in the book itself but in the catalog that announced the book to the trade. And the publisher of Oscar Hijuelos’ novel, The Mambo Kings Play Songs of Love, was sued by a woman whose photograph was used in a collage that appeared on the jacket.
Above all, the Beardstown Ladies cases remind publishers of books that offer information and advice of the need to curb their enthusiasm when “puffing” their books to potential readers. Like any other product, a book ought to do what its purveyor promises it will do.
Jonathan Kirsch, an attorney specializing in publishing law, is the pro bono general counsel of the Publishers Marketing Association and author of “Kirsch’s Handbook of Publishing Law” and “Kirsch’s Guide to the Book Contract.” He can be reached at