Can Dylan Davies' Publisher Sue Him For Damages?
As the consequences for 60 Minutes' botched story on Benghazi continue to unfold, it's unclear whether the apparent charlatan at the center of that report will face punishment from the publisher of his book.
After the October 27 segment aired, it was revealed that Dylan Davies, the supposed eyewitness featured in the story, had given conflicting accounts of his actions the night of the 2012 attacks in Benghazi. CBS News eventually pulled the segment and announced after an internal review that correspondent Lara Logan and her producer Max McClellan would be taking a leave of absence from 60 Minutes.
But the 60 Minutes segment wasn't the only publicity boost CBS Corporation gave to Davies' story. Two days after the 60 Minutes report aired, Simon & Schuster imprint Threshold Editions released The Embassy House, a book featuring Davies' dubious account.
While Threshold pulled the book from shelves shortly after CBS retracted its segment, the publisher has not revealed any action it plans to take against Davies to recoup costs or damages from his apparent lies. Requests for comment have been ignored.
But book publishing veterans, including several attorneys who handle such cases, said Threshold's options are clear according to traditional author agreements. They admit, however, that the publisher may have trouble actually collecting any damages.
“One of the important elements in a book publishing contract is a clause called representations and warranties, a list of promises and guarantees that an author makes to the publisher. These are very standard -- the customary assurances that the author gives is that the work is original and does not infringe on copyright,” said Jonathan Kirsch, a publishing attorney based in Los Angeles. “Some publishers are smart enough or have lawyers who are smart enough to include additional assurances that the book is true, accurate, and based on sound research.”
Kirsch added, “If you had a contract where the representation and warranties clause didn't include these assurances, the publisher would be in a more exposed position. If they do include that assurance then the publisher can sue for breach of contract. At the very beginning of the book contract it says that the book is a work of fiction or non-fiction. If the contract characterizes it as a work of non-fiction or an autobiography or an historical account, there is an implication that it is true and the publisher can sue on that account.”
Veteran publisher and former Simon & Schuster editor Judith Regan highlighted the lack of vetting at publishing houses that can lead to questionable stories being published.
“They're not journalistic organizations, they don't have staff of reporters or researchers vetting material for credibility.” Regan added, “They're not seekers of the truth, they're running in a business where they publish a lot of different people who have stories to tell or information to impart. That's what they do, they package people's material and go out in the marketplace to sell it. They don't vet it, there's no vetting, they're not set up for that.”
But Regan struck a skeptical note when asked about Threshold's ability to potentially recoup costs from Davies.
“The publishers have warranties, you have to be able to prove it's false, you'd have to know all the specifics, what did he know and when did he know it? Did he make false representation to the FBI or false representation to the book?”
Tonya M. Evans, associate law professor at Widener University Law School and a book publishing attorney, said the agreement is clear.
“Most publishers, certainly all major houses, require certain author representations and warranties in their publishing agreements,” she said in an email, adding that “assuming the contract also includes an indemnification right, the publisher may be able to recoup advances or demand reimbursement for costs associated with claims made against it (or the publisher's insurance company may do so on behalf of the publisher).”
Daniel N. Steven, a media attorney based in Rockville, MD., said most publishers have internal reviews to assess their potential to collect.
“The publisher does an independent investigation and if it looks to them that the guy did make this up they know damn well they're in trouble and they can sue the author,” Steven said. “There is no question, under that clause they can make the author repay any advance. The author may not have any money. All of the big publishers have media perils insurance, publishers insurance. All but the smallest publishers pay annual premiums so that if this happens insurance will cover it. If it is a really big judgment.”
One of the problems with non-fiction books such as Davies' is that they often rely on the author's honesty, since most publishing houses do not have fact-checking departments or detailed reviews beyond the so-called “legal read” done by attorneys to look for potentially libelous or defaming statements.
As a result, lawyers say the publisher must protect itself with the related clauses, which will likely take effect in this case.
“It is always a matter of negotiation in the contract, sometimes the author will attempt to limit the amount of indemnification to the amount of money he has received, but normally the publisher will require full indemnification,” said Alan Bomser, a partner with Winslett, Studnicky, McCormick and Bomser in New York who has handled publishing and media issues since 1957. “I have never seen a deal where there are no warranty and indemnity clauses. There is a breach of a contractual arrangement. You can get a judgment against them and that judgment is good for 20 years, but that is a risk.”