Based on the True Story of the Largest Judgment Against A Publisher in History ---
A Shocking Look Inside the Wildcat World of Independent Publishing
Complaint Filed In Middlesex Superior Court Against Misha Defonseca et. al.
Yesterday a complaint was filed in Middlesex Superior Court on behalf of Jane Daniel and Mount Ivy press against Monique DeWael, a/k/a Misha Defonseca, Vera Lee, and Edwards, Angell, Palmer and Dodge. The complaint was filed by attorneys Joseph M. Orlando and Brian M. McCormick.
In part, the Complaint reads:
II.STATEMENT OF FACTS
6.In 1994, the plaintiff, Daniel, was working as a publisher/editor at Mt Ivy Press, LP, a small publishing company, founded by the plaintiff, the previous year.
7.In the course of the plaintiff's business, the plaintiff, Daniel, met the defendant, Defonseca.
8.When the plaintiff first met the defendant, Defonseca, Defonseca related that:
a.As a Jewish child, age 7, she was living in Belgium, when her parents were arrested by the Nazis in 1941;
b.She was placed in a foster home, and she was given a false identity, Monique DeWael, age four.Such identity was assumed for the purposes of protecting herself from the Nazis;
c.Defonseca was befriended by a man, who she referred to as "grandfather," whose name was Ernest DeWael, who gave her a tiny compass, and showed her a map of Europe;
d.When Ernest DeWael expressed to Defonseca concern that the Nazis would come for her, Defonseca set out on a journey "to the East" in search of her parents;
e.Over the next four years, Defonseca walked three thousand miles across the European theater of war, hiding in forests where twice she was befriended by wolves.
9.Defonseca further related to the plaintiff that she had been telling her story, and soliciting contributions from speaking engagements since approximately 1989-1990, and had been warmly embraced by the Jewish community in the Boston area and elsewhere.
10.Upon hearing the story, as related by the defendant, Defonseca, the plaintiff offered to publish Defonseca's autobiography (hereinafter, "the book").
11.Defonseca engaged a French-speaking writer, defendant, Vera Lee, to ghostwrite Defonseca's story, as Defonseca's command of the English language was weak.
12.Defonseca and Lee signed a collaboration agreement, intended to set forth the respective rights of the parties.
13.Both Defonseca and Lee signed publishing agreements with Mt Ivy Press, LP, in August of 1995.
14.Both publishing agreements contained the following warranty:
A.The Author represents and warrants to the Publisher that, with respect to the Work as submitted by Author, excluding revisions or additions by Publisher (i) the Work is not in the public domain; (ii) the Author and her collaborator are the sole and exclusive owners of the Work and have full power, free of any rights of any nature whatsoever in any one that mightinterfere therewith, to enter into this Agreement and to grant the rights hereby conveyed to the Publisher, (iii) the Work has not heretofore been published in whole or in part; (iv) the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the owners thereof; (v) the Work does not, and if published will not, infringe upon any proprietary right at common law; or any statutory copyright, or trade names, or patent, or trademark rights, or any other right whatsoever, (vi) the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party; (vii) all statements of fact are true or based upon reasonable belief, except for facts and identities deliberately misstated to preserve confidentiality or for other valid reasons, provided the Author notifies the Publisher thereof (viii) the Work, if biographical or “as told to” the Author, is authentic, and (ix) the Author will not hereafter enter into any agreement or understanding with any person, firm, or corporation that might conflict with the rights herein granted to the Publisher.
15.Defonseca and Lee set to work to draft the manuscript. Over time, disagreements arose between Lee and Defonseca regarding the scheduling of time to work together on the manuscript.
16.During the same time frame, disputes began to arise between Lee, Daniel, and Defonseca, regarding the plaintiff's editorial dissatisfaction with respect to the form, substance, and delayed production time of the manuscript.
17.Defonseca's account of her experience could not be subjected to standard verification and process, due to the absence of certain critical information, including, but not limited to:
a.Defonseca reported that she did not know, and had never been told, her Jewish surname;
b.She had simply been called "Mischke," and never known her parents by any names other than "Gerusha,"(her mother, a Russian Jew), and "Reuven,"(her father, a German Jew);
c.Her parents were emigrees to Belgium;
d.She did not know her place of birth, but represented that she suspected it may have been Poland.
18.In the course of her research, the plaintiff, Daniel,learned that, at times, Jewish children of the Holocaust lost their identities when their parents were taken away.
19.Without the names, date, and place of birth of "Mischke," it was not possible for the plaintiff to check the personal aspects of the story.
20.To ready the manuscript for publication, the plaintiff attempted to undertake fact checking, including verifying historical and descriptive details, researching historical events, studying the flora and fauna of geographical locations and investigating behavior of wolves in the wild, etc.
21.The plaintiff also sent the manuscript to wolf experts, and to Jewish scholars and Holocaust experts for review.
22.Enthusiastic endorsements were returned from several luminaries, including the chaplain of Brandeis University, Rabbi Albert Axelrod,Noble Laureate and renowned Holocaust survivor, Eli Wiesel, Leonard Zakim, director of the New England region of the Anti-Defamation League, and the North American Wolf Foundation.
23.The American book was published in April 1997, under the title, Misha: A Memoir of the Holocaust Years.American edition, was followed shortly thereafter by a French version, published by Editions Lafont, under the title, Surivre avec les loups, (Survival with Wolves), the production of which was under the oversight of Defonseca exclusively. Neither Mt Ivy Press, nor Jane Daniel, had any input with respect to the French edition, other than to make several specific minor corrections request by Lafont.Other foreign editions followed.
24.Two significant changes were made in the Lafont editions, and subsequent editions controlled by Defonseca. Identifying photographs were removed, and the "false identity" of "Mischke" was changed from Monique DeWael, to Monique Valle.
25.In 1997, Lee initiated a suit against plaintiffs Daniel and Mt Ivy Press, and defendant, Defonseca, in Middlesex Superior Court, C.A. No. 98-2456, alleging, among other things, breach of contract.
26.From the inception of the underlying litigation in May 1998, until March 1999, Defonseca represented herself.
27.In the course of her self-representation, defendant, Defonseca, filed a counter-claim against Lee, affirmatively representing, among other things, breach of contract.
28.The counter-claim filed by Defonseca against Lee represented that Defonseca had complied with all of the terms of the collaboration agreement, including that the book was, "based on the author's life experience, accomplishments, and impact upon society."