Publish or Perish Prosper: Law Professors Win Millions Over “Sham” Update of West Treatise

Law professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener University have won an extraordinary verdict: $5.2 million in compensatory and punitive damages for defamation by West Publishing. At issue was a shoddy 2008 pocket part issued under their names. Rudovsky (left) called the update a “poorly researched ‘sham’ pocket part.”

The verdict came after a four-day trial and the company is expected to appeal.

The professors had demanded more compensation from the company, which responded ultimately by issuing the update to their Criminal Procedure treatise under their names. In a declaration, Rudovsky explained:

In 2008, West and the Authors could not agree on business terms for the Authorsto prepare a 2008-2009 pocket part.13.In December, 2008, West published a 2008-2009 pocket part, with a title page that prominently stated that the publication was “by” David Rudovsky and Leonard Sosnov, and in smaller print, by the “The Publisher’s Staff.”

This pocket part was virtually unchanged from the 2007 pocket part as it contained almost no new cases or rule changes of any significance. Moreover, the pocket part failed to note or discuss several decisions from the Pennsylvania Supreme Court that reversed,remanded, or granted review of decisions by the Pennsylvania Superior Court. See, e.g.,Commonwealth v. Mallory, 941 A.2d 686 (Pa. 2007); Commonwealth v. Brown, 925 A.2d 147(Pa. 2007); Commonwealth v. West, 938 A.2d 1034 (Pa. 2007); Commonwealth v. Bennett, 930A.2d 1264 (Pa. 2007); Commonwealth v. Lee, 935 A.2d 865 (2007); Commonwealth v. Gravely,918 A.2d 761 (Pa. Super. 2007), allowance of appeal granted, April 2, 2008. In addition,changes to the Rules of Appellate Procedure (e.g., Rule 2111) and additions and amendments to the Rules of Juvenile Court Proceedings (e.g., new Rules 140, 630 and 632, and amendments to Rules 120, 123, 124, 150, 360, 364, 631 and 800), were not addressed in the pocket part.15.The Authors retained counsel to seek relief from the damages and harm caused

The professors had wanted to completely rewrite the treatise — a third edition — but West refused and offered only to have them do a pocket part — offering only $2,500 in compensation.

At trial, West’s lawyer, James F. Rittinger told the jury that the Pennsylvania criminal procedure treatise was a money loser and only made about $17,000. Moreover, he argued that their contract explicitly says that West has the right to publish an update without changing the names of the original authors.

One thing that I find interesting is the ration between compensatory and punitive damages. While once treated as the domain of state law and federalism, the Supreme Court has handed down a series of decisions striking down punitive damage awards based on the due process clause. In a case with similarly great ratio in Gore v. BMW, for example, the Supreme Court struck down an award to Dr. Ira Gore after he found that his new BMW had been repainted at that dealership without informing him. An Alabama jury awarded $4,000 in compensatory damages and $4 million in punitive damages. The amount was later reduced to $2 million by the Alabama Supreme Court but then struck down by the Supreme Court.

One would expect a similar use of remittitur by the trial judge in this case, but it could still run afoul of rulings like Gore. In State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), the Court generally imposed a ten-to-one ratio as a limit under the due process clause. In both Gore and State Farm, the Court instructed courts to consider factors like (1) the degree of reprehensibility of the defendant’s misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Under these cases, the size of the judgment in Rudovsky could be in jeopardy. The professors were awarded $90,000 each and $2.5 million in punitive damages. Applying a strict ratio analysis, the maximum on punitive damages would be less than a million for each professor — even if the court accepts the $90,000 compensatory baseline figure. The current award is over an overall 20-1 ratio. Even at a total of $2 million, however, it would be a major new precedent in the field and the company is likely to appeal on contractual grounds. Indeed, this could end up in a Torts Treatise or West pocket part.

Regardless of such appeals, these two professors should be given credit for finally finding a way to become millionaires from a state law treatise. That alone will make them living Gods among legal academics.

Source: Philly

Jonathan Turley

12 thoughts on “Publish or <del datetime="2010-12-21T11:14:32+00:00">Perish</del> Prosper: Law Professors Win Millions Over “Sham” Update of West Treatise”

  1. Wow. I thought they stopped making pocket parts for Crim Pro horn books entirely after passage of the Patriot Act.

  2. I am glad that the professors were able to succeed in their action against West. It will be interesting to see if the award survives the appeal process, but the professors have put West and other publishers on notice that the limiting language won’t be so easily accepted in the future.

  3. Seems reasonable for me…..seems that Corporate profits again…are on the rise…..

  4. I find the case interesting because the professors were apparently able to recover on a tort claim independent of the contract. West should have settled once the case survived a motion to dismiss.

    I do not find the punitive damages award excessive in this instance and have always been troubled by the Supreme Court’s analysis of such awards under the due process clause. The trial court is in the best position to determine whether a particular punitive damages award shock’s the court’s conscience. The use of artificial formulas is merely another form of interference with the proper functioning of a jury, and the jury system has been battered enough as it is.

  5. Regardless of what happens to the verdict, the larger issue is the message concerning “sham” updates. I forget the price, but I believe customers paid around $175 or possibly more for the update that included only three cases. But for the Professor’s review of the material and their objections, no retraction and more thorough update would have been forthcoming. For me, the question is who is policing the content for sale? Do you know if the content you buy, whether online or in print is current? Does this opinion change how you feel about West Publishing products? Will it make you scrutinize a product more carefully before you purchase it?

  6. If as the article states there is a provision in the contract that allows West to publish an update under the authors names then the verdict is odd to me. Unless there is some modifying language that speaks to quality or currency of the information contained therein then the problem isn’t with what West did, but the lack of a contract that adequately protected the reputations of the authors from a shoddy update being published under their names. There’s something I’m missing here or the verdict doesn’t make sense.

  7. “Regardless of such appeals, these two professors should be given credit for finally finding a way to become millionaires from a state law treatise. That alone will make them living Gods among legal academics.”

    Yep. The phrase “blood from a stone” does come to mind, but the judgment is excessive.

  8. In your post “Publish or Perish Prosper …………..
    there is this sentence:-

    “One thing that I find interesting is the ration between compensatory and punitive damages.” I think you meant ratio not ration.

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