Brow Beat

The Devil’s Disclaimer

The Devil’s Casino , Vicky Ward’s account of the rise and fall of Lehman Bros. that premiered on the New York Times best-seller list this Sunday, is a juicy read. The excerpt  published in Vanity Fair ‘s April 2010 issue mentions adultery, a bloodless coup, and death via freak snowmobile accident—and that’s just on the first page.

Considering all that, it makes sense that Ward’s publisher, John Wiley and Sons, would try to protect itself against libel suits from bankers who are unhappy with the way they’ve been portrayed. Even so, the disclaimer that appears on The Devil’s Casino ‘s copyright page seems excessive. Here’s the first sentence:

While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose.

Take a quick look at the copyright pages for other recent books about the financial crisis—like The Big Short , On the Brink , and The Quants and you’ll notice that none of them have similar disclaimers. Wiley’s narrative nonfiction books, though, all include notices identical to the one in The Devil’s Casino .

At best, Wiley’s disclaimer seems absurdly far-reaching. At worst, it looks like an excuse for shoddy journalism.

I spoke with a few lawyers who specialize in libel cases to get their opinions on the disclaimer. They were reluctant to comment on the record, but they agreed that it leaves much to be desired. Libel, by definition, is a false, written statement of fact that holds an individual up to ridicule or scorn—and stating bluntly that the author and publisher “used their best efforts” but can “make no representations … with respect to accuracy” does not protect against such claims. Defamation doesn’t have to be intentional to be actionable, so long as the plaintiff is a private figure rather than a public one. (The CEO of a company like Lehman probably would count as a public figure, since he’s been the subject of public scrutiny since the start of the financial crisis.) The only way this disclaimer might help Wiley and Ward is if it convinces a dissatisfied reader that bringing a lawsuit isn’t worthwhile. The notice could act as a shield whose power is more apparent than real.

When I contacted Wiley to get more information about the disclaimer, a representative responded via e-mail, saying, “In this day and age, it is a necessary precaution. That said, we work closely with our authors to ensure accuracy and take actions to make corrections when necessary.” She wouldn’t say when the company began using the disclaimer, or why they chose to phrase it the way they did.