CHALLENGING THE SLIME MACHINE.

When you have the facts, you talk the facts, when you have the law, you talk the law; when you have neither, you sling slime.

In a March 1999 article in The Boston Globe, “Holocaust victim” Misha Defonseca was quoted as saying that because of me (her publisher) she was so destitute she was reduced to eating dog food. Subpoenaed bank records later revealed that, just days before, she had withdrawn $10,000 in cash. That’s a lot of Alpo.

But the damage was done. That article, and similar others, will live in perpetuity on the Internet and to an unknown extent in people’s dim memories. “Oh, isn’t she the publisher that cheated those authors?” people say when they hear my name.

I have been living under a barrage of slime for more than a decade, and it’s extremely painful. The Defonseca/Lee slime machine lately has stepped up broadcasting their deliberate misinformation in an attempt to shore up the crumbling justification for their grotesquely huge verdict.

Just how grotesquely huge? Let’s look at the damages in my case compared with some other lawsuits.

My tiny publishing company and I were sued by two unknown authors for various breaches of contract. The two were awarded over $33 million in damages, plus all rights to a book that went on to become an international bestseller.

A couple of comparisons:

Thirty-three million dollars is the same amount as that awarded to the families of the deceased in the wrongful death suit against OJ Simpson for the brutal killings of his wife and her friend.

In a typical personal injury suit, a 39-year-old New Jersey psychiatrist and father of two died as a result of infection following a botched gall bladder operation. That suit settled for $4.6 million.

The huge damages in my case are a sure indication of what really influenced the proceedings: A tremendous outpouring of sympathy for two plaintiffs who played their parts very well. Misha Defonseca was an emotionally and physically crippled Holocaust victim. She appeared in court with an ankle-to-hip leg brace and a cane. Her fellow plaintiff was ghostwriter Vera Lee, a sweet little old lady. Both claimed they were cheated and exploited by their unscrupulous publisher. Together they presented a very touching, and very false, picture.

Their book, “Misha A Memoire of the Holocaust Years” was admitted into evidence and the judge and jury had an opportunity read it. Many people, including Elie Wiesel, described the story as “very moving” and certainly it had its effect on the outcome of the trial. The tone of righteous outrage that bristles from the 25 pages of the trial court’s Findings of Fact is worthy of the Nuremberg Trials.

And outrage about what, exactly? Money? Let’s look at the money.

Vera Lee’s lawyer admitted in his opening statement that I never took a salary; my compensation was to be the sweat equity I built up in the company. I worked on the Misha project from 1995 to 2001, five years with no pay.

In summer 1998, Vera Lee’s lawyer obtained a court ruling to have Mt Ivy’s earnings escrowed by the court. (At the end of the trial the court paid Mt Ivy’s escrowed earnings to Defonseca and Lee.) Just a year after publication of the book, with its income frozen, Mt Ivy was sinking under the weight of legal bills.

The court consistently twisted the financial evidence against Mt Ivy and me. For instance, the court acknowledged in its Findings that I had loaned the company money. I testified that I had loaned $17,000 more than I was reimbursed. Defonseca and Lee offered no rebuttal. Yet the court found that my loans to cover legal fees (incurred because of Defonseca’s and Lee’s lawsuits) were an indication that Mt Ivy was an under-funded, “sham” company.

All earnings, including foreign earnings held in a foreign account, were duly reported in the royalty statements that were admitted as trial exhibits. Back-up records of all earnings, including the foreign income, were attached to the royalty statements. Yet the righteously indignant trial court dismissed it all, saying Mt Ivy “refused to provide accountings.”

The royalty statements speak for themselves. You’ll notice, if you check his public statements, Lee’s attorney never says he discovered unreported earnings, although that is what he clearly implies. “She diverted revenues to an offshore bank account which we did locate,” Mr. Frisoli says in an interview for WCVB’s Chronicle.

The truth is, what he located was the foreign bank where the foreign earnings (which he knew about from the royalty statements) were deposited. Having all but killed Mt Ivy, Mr. Frisoli was frustrated that he couldn’t finish the job by attaching those remaining funds, thereby destroying our ability to mount a legal defense.

Today, the Defonseca/Lee camps continue to beat the drum of moral outrage by citing other incongruous findings from the trial court. Vera Lee’s lawyer has told the media that Misha and his client were never paid. “She [Jane] didn’t pay royalties,” he says, over and over.

What he doesn’t say is that before the trial, a different judge three times upheld Mt Ivy’s contractual right to withhold royalties pending determination of whether the co-authors failed to meet their obligations. (The trial court, in its ire, simply disregarded the previous court’s repeated rulings and found that Mt Ivy had “no legal or legitimate basis for withholding royalty payments.”)

Mr. Frisoli also has publicly stated that Mt Ivy’s foreign bank account held funds from the sale of movie rights. This is pure fabrication, and he knows it. “Daniel placed ‘hundreds of thousands of dollars’ from book and movie sales in a [foreign company,]” he told a reporter for the Milford Daily News.

As a matter of fact, the only reference to hundreds of thousands of dollars in the Findings of Fact is the money discovered in Defonseca’s bank accounts. (See below.) Apparently, Mr. Frisoli is not satisfied with the trial court’s damning (though unsupported) findings against Mt Ivy; he is now manufacturing his set own set of findings and attributing them to the court.

Another example: Contrary to Mr. Frisoli’s statements that the court found I had “stolen” money, nowhere in the Findings of Fact does the word “steal, stole or stolen” appear. (Note to the next reporter to cover this story: Please ask Mr. Frisloli to show you where in the Findings of Fact the court says what he says it says.)

Mr. Frisoli’s casual attitude toward the truth is not limited to financial matters. During last summer’s hearing, when my lawyer explained to the court that Defonseca had publicly confessed that her story was false, Mr. Frisoli sprang to his feet to defend her. “She didn’t say she lied,” he protested. He then explained that she suffered from recovered memory syndrome, like a child who was sexually abused.

There’s no question that the language of the trial court’s findings was scathing. But if you look for the substance behind the rhetoric, it’s not there. For instance, the trial court found that Mt Ivy and I “used breaches of contract as a lever to misappropriate funds” and “fraudulently pilfered monies” [owed to Defonseca and Lee.]

The vagueness of this language evades the fact that a prior court three times held that NO royalties were due to Defonseca and Lee pending resolution of the lawsuit. We acted in accordance with multiple rulings of a prior court, and were slammed by the trial court for doing so. As for “fraudulently pilfered”, “pilfer” is not a term of law. (The dictionary says it means to “filch a small amount.”)

Here’s my point: The trial court offered no details to support a finding of fraudulent pilfering or misappropriating. This is what the trial court did:

THE TRIAL COURT DID SAY I MISAPPROPRIATED “FUNDS” OR “MONIES.” THE TRIAL COURT DID IMPOSE A $33 MILLION VERDICT.

One would think a judgment of that impressive size would require a proportionally thorough explanation of the evidence and the facts that supported it. It didn’t happen. This is what the trial court didn’t do:

THE TRIAL COURT DID NOT IDENTIFY WHICH “MONIES” WERE MISAPPROPRIATED, HOW MANY DOLLARS THAT REPRESENTED, THE SOURCE OF THOSE MONIES, WHEN THEY WERE TAKEN, ANY SUPPORTING PAPER TRAIL, OR THE FORM (CASH? CHECKS?) IN WHICH THE MONIES WERE MISAPPROPRIATED. THE TRIAL COURT DID NOT IDENTIFY ANY MISSING MONEY.

The reason for these critical omissions in the trial court’s findings is this:

THERE WAS NO MISSING MONEY.

All earnings were accounted for. No money went to me except for repayments of loans.

(Note to the next reporter to cover this story: Please do your fact checking. Ask Mr. Frisloli to supply documentation for all his statements. As for me, I would be more than happy to provide back-up for everything I’ve written here.)

Misha Defonseca testified at trial that she was impoverished because of her publisher, causing her to lose her home. The trial court found that Defonseca’s home was foreclosed.

Public records, however, prove the Defonsecas sold their home for a profit shortly before the trial. And although Defonseca bypassed the usual reporting mechanisms by having royalties from the French translation direct-wired into her bank accounts, subpoenaed bank records told even more of the story. From the Findings of Fact:

“The Defonseca’s three bank accounts reveal deposits between December 1996 and February of 2000 of over $243,700. The evidence never made clear how, notwithstanding that amount of deposits, the Defonsecas were claiming financial hardship, such that their home was foreclosed upon in 2001.”

The evidence WAS clear: Misha was NOT impoverished. Maurice Defonseca himself testified that Misha earned over $150,000 directly from publication of the American book. The finders of fact, however, were so intent upon reaching their pre-determined destination that they galloped over a mountain of irrefutable evidence that was right in front of them.

In his opening statement of the trial, Mr. Frisoli told the jury, “Follow the money.” He dropped that line from his closing, but let’s take his advice anyway:

The trial court found that “Mt Ivy declined to promote the Work on the Oprah Winfrey Show…in a wrongful attempt to gain all rights to Defonseca’s story.” Further it found that, had Mt Ivy properly promoted the book, Defonseca would have earned $1 million, and Lee half a million dollars, in royalties.

Thus, according to the royalty schedule in the Publishing Agreement, Mt Ivy’s share of the total earnings would have been over $8 million. In other words, the trial court found that Mt Ivy intentionally walked away from $8 million for — WHAT REASON!?! The court never explains how an appearance on the Oprah Winfrey Show could have had any effect on the rights to Misha’s story.

Today, we know for sure why the Oprah show never happened, and it had to do with Misha’s hidden agenda, not Mt Ivy’s. The real reason Misha didn’t go on Oprah was tied to her need to kill the American book. (More on that coming soon.)

There’s one more money issue I want to address: People often ask, What happened to the $33 million?

The answer is: There WAS NO $33 million.

That amount is what was determined to be the VALUE of the DAMAGES (monetary and otherwise) incurred by Defonseca and Lee because of their publishers’ “extremely egregious” conduct. The jury imposed $11 million and the court trebled it to over $33 million — a number that, we now know, was awarded for a pack of lies.

STAY TUNED …

My New Year’s Resolution

I am making a promise to myself as the year 2009 begins: This is the year I will reclaim my good name.

For eleven years, my reputation has been dragged through the mud by people who practice Lee Atwater-style slime-slinging for their own financial gain. I will have much to say on this subject in the coming weeks, but I’ll start here.

In time, certain truths become self-evident. With the exposure in 2008 of the Defonseca/Lee Holocaust memoire hoax, the $33 million judgment the co-authors obtained against their publishing company and me appears even more bizarre, and all kinds of questions remain unanswered.

Three prominent memoire hoaxes were exposed last year, the Misha Defonseca/Vera Lee hoax “Misha A Memoire of the Holocaust Years” (a.k.a. “Survival with Wolves”), the Margaret Seltzer/Jones hoax, “Love and Consequences,” and the most recent to come to light, “Angel at the Fence” by Herman Rosenblat. All were successful before they were debunked.

Two of the three were set against the background of the Holocaust, and for a reason. More than sixty years after it ended, the Holocaust lingers on as a highly charged emotional current in our collective consciousness. Thus, to a storyteller, the Holocaust is a powerful dramatic device. Misha’s tale of a child searching for her lost parents and living with wolves in the forest would have been far less compelling had it been set in uneventful times and billed as a work of fiction.

Rosenblat’s account of a little girl who threw him apples over the concentration camp wall, whom he met up with years later and married, would have been humdrum if the setting had been peacetime and the wall had been that of a tough boarding school.

The Holocaust is a lens through which ordinary events, silhouetted against incomprehensible human suffering, rise to the kind of high drama that illuminates the heart of darkness. So powerful is the Holocaust to deeply move us that Oprah called Rosenblat’s the “most beautiful love story” she had ever presented in her 22 years on television.

Last summer I was back in court on a complaint, based on Misha Defonseca’s fraud on the court, to overturn the $33 million judgment against me. The outcome was yet another shocking moment for me. Judge Feeley ruled that the fact that Misha Defonseca lied to the court in representing herself as a Holocaust survivor did not prevent me from receiving a fair trial.

For many observers, this notion flies in the face of what is intuitively obvious. For me, it flies in the face of reality; I was there: At trial, I was depicted as the publisher who heartlessly exploited a Holocaust victim by, among other things, causing her to be so impoverished she lost her house to foreclosure. In fact, public records indicate she sold her house for a profit shortly before the trial.

But that was just one lie; the trial was built on a mountain of lies. In the same week that she told The Boston Globe she was eating dog food because of her publisher, subpoenaed records indicate Defonseca withdrew $10,000 in cash from one of three bank accounts. At the time of trial she had earned over $150,000 directly from publication of the American book.

This information was presented; the jury simply disregarded it. The immense sympathy and credibility afforded Misha as a Holocaust victim supported the characterization of me as a Nazi-like villain. Every lie Misha told was accepted as absolute truth — and Misha lied about EVERYTHING, especially the money. (I’ll deal more with the money issue in a later post.)

Vera Lee (the self-described ghostwriter) benefited from the reflected pathos of Misha’s victimhood. Despite the absence of any such requirement in any contract, the jury affirmed Lee’s claim that she was entitled to have her name on the cover of the book. (Huh? you say. Isn’t a ghostwriter supposed to be invisible? Yep, that’s what the dictionary says, too.) The jury awarded Lee $2 million for not getting her name on the cover (though she was given attribution inside the book); the judge trebled it to $6 million!

There were other similarly incomprehensible findings that resulted in more huge monetary awards, totaling over $33 million. I have no doubt that the jury and the court, in handing down that judgment against me, believed they were driving a stake into the heart of darkness and righting sixty-year-old crimes.

During the hearing last summer on my action to overturn the judgment, Judge Feeley, discussing the enormous monetary awards to Lee and Defonseca, questioned whether the memoire’s value was diminished by its being a hoax. Lee’s attorney argued that the value was unaffected and thus the damages were appropriate and should stand.

There’s no need for speculation here; there’s a track record of the fate of recent hoax memoires. The fact is: A hoax has no value to a publisher. For instance:

° Binjamin Wilkomirski’s Holocaust memoire “Fragments,” winner of the 1997 National Jewish Book Award, was recalled by its prestigious Jewish publisher, Shoken Books.

° Penguin (twice burned by hoaxes) recalled Seltzer’s book and canceled publication plans for Rosenblat’s book.

° Random House recalled James Frey’s hoax, “A Million Little Pieces,” and offered purchasers a refund.

° The French feature film “Survivre avec les loups,” based on Defonseca’s scam memoire, was canceled all over Europe.

It’s not clear what, if anything, Vera Lee contributed to the actual manufacture of the hoax from which she profited so immensely. The question was not raised in the lawsuit because the book was not then known to be a fake. Lee was the first to record Misha’s “memories” and organize them into a narrative. What can be said is that, in her role as ghostwriter, she had the means and the opportunity to be complicit. Here is an excerpt from the trial transcript of Lee being questioned by her own attorney:

Question: Were there any gaps in Misha’s memory?

Vera Lee: Oh, yes.

Question: Are there gaps in the book?

Vera Lee: I don’t think so. No.

Question: So you listened to Misha and filled in the gaps yourself and said to Misha, Does this sound accurate?

Vera Lee: Yes.

Vera Lee has made contradictory statements to the press regarding her role in the creation of the book. In 2001, soon after the trial ended, she told The Boston Globe, “There were doubts, but so much seemed credible that I couldn’t just throw doubt on the whole thing.”

In March 2008, after the hoax was revealed, she said, “Misha always said that this was the truth as she recalled it, and I trusted that that was the case.”

In several interviews she says that she was so “worried” by Misha’s story that she consulted someone (whose name, she says, she can’t remember) at Facing History and Ourselves, the nonprofit that develops Holocaust curricula for schools. She has said she informed me of her concerns, but I brushed them aside.

Disney optioned the dramatic rights with the understanding that the book was based on a true story. Questions about authenticity, however, likely would have led to the demise of the project, along with prospects of fame and fortune for the authors. So there’s an issue around Vera Lee’s motives: Would she have done whatever it took to get her name on the cover of a book that was associated with Disney?

In legal matters; there are records of everything. In this case, there are four, 4-inch-thick binders of trial exhibits containing several hundred pages of documents, including dozens of pages of correspondence between Vera and me.

I’ve been through all of those documents in the course of writing “Bestseller! There is no record of Vera Lee alerting me to her concerns about Misha’s truthfulness. But don’t take my word for it; I suggest the next reporter who interviews her might ask for concrete evidence, such as one of those stamped trial exhibits, of her oft-repeated concern for the truth.

At the moment, Vera Lee continues her relentless efforts to collect money awarded to her for a hoax book. She has said “it’s not about the money,” and recently, she offered her altruistic reason for continuing to pursue me in court. “I’d like Daniel to be stopped. I wouldn’t like to see others drawn into her net.”

How kind of her.


—MORE TO COME