Yet another Lance Armstrong lawsuit got underway in California Thursday, but this one doesn’t involve a company suing Mr Armstrong for millions. Rather, it’s a class-action suit on behalf of the people who bought his best-selling books It’s Not About the Bike and Every Second Counts and now say they were duped, according to USA Today.
It’s Not About the Bike was the quintessential Armstrong fairy tale, documenting his early life and return from cancer to win the 1999 Tour de France.
That victory was fuelled by performance-enhancing drugs, and it’s the deceit about doping that’s at the heart of this case.
The plaintiffs allege that they were defrauded by false advertising of Armstrong’s books. They’re not complaining about the content of the books, because that’s almost certainly protected speech under the USA’s First Amendment, but about Armstrong’s promotional activities around them.
They are seeking refunds and damages in excess of $5 million.
U.S. District Judge Morrison England heard arguments yesterday from lawyers for the plaintiffs, who include a cancer survivor, Gloria Lauria, and Armstrong and his publishers.
“He cheated on bike races to sell books, and he published the books in order to cover up the cheating,” plaintiffs’ lawyer Kevin Roddy told Judge England. “We think they’re interwined.”
In a pre-trial court filing, plaintiffs’ lawyers said: “Lauria would not have purchased either book had she known Armstrong doped his way to ‘victories’.”
Lawyers representing Mr Armstrong and his publishers asked for the case to be dismissed.
“Courts have unanimously held that publishers… owe no duty to publish accurate information or otherwise verify the truth of the statements of their authors,” they said in court filings.
However, Kevin Roddy said: “It’s not just about the book.”
Mr Roddy argued that by marketing himself as a drug-free all-American hero, Mr Armstrong persuaded readers to buy books they would not have purchased if they’d known the truth.
The Armstrong story was a “fairy tale” Roddy said, and if readers had known that, “nobody would have paid more than a penny” for the books.
“He engaged in commercial speech,” Mr Roddy said.
Commercial speech or false advertising enjoys less protection under the First Amendment than the content of books.
Lawyers for Mr Armstrong and his publishers believe it still applies. “The First Amendment bars any action here,” said Bradley Ellis, attorney for Random House, publisher of Every Second Counts.
Mr Roddy disagreed and cited as an example of less protected commercial speech a talk-show interview Mr Armstrong while promoting one of his books. He said it shows Armstrong denied doping to help sell books.
The defence lawyers say that the readers have not given a specific example of a false statement that caused them to buy Mr Armstrong’s books. His lies in talk-show interviews were not commercial speech, they say, but comments made in public forum “in connection with an issue of public interest.”
“How does [talk-show host] Charlie Rose even end up in his courtroom [as a topic of discussion]?” said Zia Modabber, Armstrong’s lawyer. Mr Modabber said no plaintiff even alleges they saw that interview with Rose.
Judge England asked Mr Roddy what would be the situation if Mr Armstrong had not promoted his books, but just lied about doping in them. “That is protected speech – am I right or wrong?”
Roddy replied, “Your hypothetical is interesting, but that’s not how books are sold nowadays.”
Judge England said he will come to a decision soon on whether the case should proceed.
Our official grumpy Northerner, John has been riding bikes for over 30 years since discovering as an uncoordinated teen that a sport could be fun if it didn't require you to catch a ball or get in the way of a hulking prop forward.
Road touring was followed by mountain biking and a career racing in the mud that was as brief as it was unsuccessful.
Somewhere along the line came the discovery that he could string a few words together, followed by the even more remarkable discovery that people were mug enough to pay for this rather than expecting him to do an honest day's work. He's pretty certain he's worked for even more bike publications than Mat Brett.
The inevitable 30-something MAMIL transition saw him shift to skinny tyres and these days he lives in Cambridge where the lack of hills is more than made up for by the headwinds.