Wasted Time as a Damage–Paglinawan v. Frey

By Eric Goldman

Paglinawan v. Frey, No. 2:06-cv-00099-RSM (W.D. Wash. complaint filed Jan. 19, 2006).

James Frey publishes the book “A Million Little Pieces.” It’s marketed as a non-fiction book, but some of it is actually fiction. Readers are upset by the deception. What recourse?

Marketing a fictional book as non-fiction is a material misrepresentation. Normally, a material misrepresentation should create a rescission right, but I’m not sure about the privity issues. The author knew it was fiction, but the readers don’t have a contract with the author. The publisher may not have known the book was fiction, in which case the publisher might claim mutual mistake rather than misrepresentation. At that point, the readers might have recourse, but it’s not clear that they would.

But even if the publisher knew that some of the work was fictional, the publisher has unilaterally offered rescission (at least to the buyers it had privity with). So what more could any aggrieved reader want?

The readers want their time back–the time spent reading a book they thought was non-fiction but was partially fictional. But since a court can’t manufacture time, the readers want the next best substitute–cash. They want the author and publisher to pay them for their wasted time.

I’m not sure the time was really wasted. If the story was good, it doesn’t really matter if the book was fiction or non-fiction. Entertainment is entertainment, after all.

But let’s assume the readers truly wasted their time. Should we recognize wasted time as a damage under contract law or other theories?

This is hardly a novel request, especially in the marketing context. I haven’t done exhaustive research of this, but I can think of a couple of junk mail cases where wasted time was specifically rejected as an actionable damage. [Harris v. Time, Inc., 191 Cal. App. 3d 449 (1987); Smith v. Chase Manhattan Bank, 741 N.Y.S.2d 100 (N.Y. App. Div. 2002)] And, in perhaps an analogous context, recall that the Hamidi court specifically rejected the time wasted by a spam was a recognizable damage under common law trespass to chattels. As a result, I’m skeptical that a court is going to be sympathetic to the aggrieved readers’ requests for damages for their wasted time.

On the other hand, should time-wasting become a proper basis for damages, I plan to nail the IRS first and airlines second.

Hat tip: ContractsProf blog

UPDATE: Overlawyered provides a few details of 2 other related lawsuits.