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Daniel Appeal Brief

2009-03-05T09:11:00.001-08:00

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS SUPERIOR COURT
MT IVY PRESS, )
JANE DANIEL, )
Appellants, )
) Appeals Court
) No. 2008-P2132
vs. )
)
MONIQUE DE WAEL, a/k/a, )
MISHA DEFONSECA, )
VERA LEE, )
Appellees )
)

PLAINTIFF’S APPEAL BRIEF

I. Statement of Issues Presented for Review

1. Did the Court err in granting the motion brought by the defendant, Misha Defonseca to dismiss Counts I and II of Plaintiff’s Complaint, pursuant to Mass.R.Civ.P. 12(b);
2. Did the Court err in granting the motion brought by the defendant, Vera Lee, to dismiss Counts III and IV of Plaintiff’s Complaint, pursuant to Mass.R.Civ.P. 12(b);
3. With all the facts examined in the light most favorable to the plaintiffs; did the Court err in finding, as a threshold matter, that the plaintiffs could prove no set of facts entitling them to relief from judgment, under Mass.R.Civ.P. 60(b).

II. Statement of Case

This appeal, and the underlying litigation stem from disputes regarding an “autobiography” authored by appellee Monique De Wael, a/k/a Misha Defonseca(hereinafter “Defonseca”) entitled “Misha, A Memoir of the Holocaust Years,”(hereinafter, “the book”). The book, purportedly an account of Defonseca’s childhood years in Nazi Germany, was ghostwritten by apellee, Vera Lee(hereinafter, “Lee”), and published by appellants Jane Daniel(hereinafter, “Daniel”), and Mount Ivy Press(hereinafter “Mt Ivy”).
In 1997, Lee instituted suit in Middlesex Superior Court, C.A. No. 98-2456, against Daniel/Mt Ivy, and Defonseca, alleging, among other things, violations of M.G.L. c. 93A, breach of contract, and other torts related to their respective involvement in the publication of Defonseca’s autobiography. As the litigation unfolded, each of these three parties, Mt Ivy/Daniel, Defonseca, and Lee, presented separate claims against each other by way of cross claim and/or counter claim(hereinafter, “underlying litigation”).
A trial was undertaken in the Middlesex Superior Court, the Honorable Elizabeth M. Fahey, Justice, presiding, from August 6, 2001-August 20, 2001. At the conclusion of the trial, the jury entered verdicts against Mt Ivy and Daniel in the amount of 3.3 million dollars for all claims brought by Lee, and the amount of 7.5 million dollars for all claims brought by Defonseca. Subsequently, the trial court trebled these verdict amounts, and awarded attorney’s fees to both Defonseca and Lee, based on the finding that Mt Ivy and Daniel had violated M.G.L. c. 93A. The resulting verdict against Mt Ivy and Daniel, exceeded 32 million dollars. The court also stripped Mt Ivy/Daniel of any legal interest which Daniel/Mt Ivy had in profits generated by the book thereafter.
Post-judgment, Daniel, by virtue of exhaustive research, and technological advancement, was able to establish that the book, Misha: A Memoir of the Holocaust Years, was a hoax. When confronted with such irrefutable evidence, Defonseca acknowledged publicly in January 2008 that the book was indeed fraudulent. Within thirty-nine days of this disclosure, Daniel and Mt Ivy filed suit in Middlesex Superior Court, C.A. No. 08-1432, seeking to vacate the judgment entered in the underlying litigation, pursuant to Mass.R.Civ.P. 60(b)(6)(hereinafter referred to as the “current litigation”). In response, Defonseca and Lee filed motions to dismiss, pursuant to Mass.R.Civ.P. 12(b)(6). After a hearing, occurring on August 28, 2008, the trial Court allowed the motions brought by Defonseca and Lee to dismiss. Mt Ivy and Daniel appeal therefrom.
III. Statement of Facts
In 1993, Daniel founded Mt Ivy Press, a small publishing company. Shortly thereafter, Daniel met with Defonseca in order to hear her remarkable story about her experiences as Jewish child during World War II (App. P. 0002). Among other things, Defonseca related that:
a. As a Jewish child, age 7, she was living in Belgium, when her parents were arrested by the Nazis in 1941;
b. She was placed in a foster home, and was given a false identity, Monique DeWael, age four. Such identity was assumed for the purposes of protecting herself from the Nazis;
c. Defonseca was befriended by a man, who she referred to as "grandfather," whose name was Ernest DeWael, who gave her a tiny compass, and showed her a map of Europe;
d. When Ernest DeWael expressed to Defonseca concern that the Nazis would come for her, Defonseca set out on a journey "to the East" in search of her parents;
e. Over the next four years, Defonseca walked three thousand miles across the European theater of war, hiding in forests where twice she was befriended by wolves.
(App. P. 0003).
Defonseca told Daniel that she had been telling her story, and receiving contributions for speaking engagements, since approximately 1989, and had been warmly embraced by the Jewish community in the Boston area and elsewhere. Daniel offered to publish Defonseca’s autobiography (App. P. 0003).
Daniel enlisted Lee, a French speaking writer, to ghostwrite Defonseca’s story, as Defonseca’s command of the English language was limited. To memorialize their understanding, Defonseca signed a collaboration agreement with Lee, intended to set forth the respective rights and obligations of the parties. Additionally, both Defonseca and Lee signed publishing agreements with Mt Ivy, in August of 1995 (App. P. 0003). Both publishing agreements contained provisions warranting, to the publisher, the truthfulness of the account(App. P. 0003-0004).
Following the execution of the various contractual agreements, Defonseca and Lee set about the business of drafting a manuscript. Over time, disagreements emerged between Lee and Defonseca regarding the scheduling of time to work together on the manuscript(App. P. 0004). During the same time frame, disagreements began to arise between Lee, Daniel, and Defonseca, regarding Daniel’s editorial dissatisfaction relative to the form, substance, and production of the manuscript(App. P. 0004). To ready the manuscript for publication, Daniel attempted to undertake fact checking, including verifying historical and descriptive details, researching historical events, studying the flora and fauna of geographical locations and investigating behavior of wolves in the wild, etc. The plaintiff also sent the manuscript to wolf experts, and to Jewish scholars and Holocaust experts for review(App. P. 0005).
Enthusiastic endorsements were returned from several luminaries, including the chaplain of Brandeis University, Rabbi Albert Axelrod, Noble Laureate and renowned Holocaust survivor, Eli Wiesel, Leonard Zakim, director of the New England region of the Anti-Defamation League, and the North American Wolf Foundation(App. P. 0005).
Defonseca’s account of her experience could not be subjected to standard verification and fact checking techniques, however, due to the absence of certain critical information, including, but not limited to the following:
a. To protect her from the Nazis, Defonseca reported that she did not know, and had never been told, her Jewish surname;
b. She had simply been called “Mishke,” and had never known her parents by any names other than "Gerusha,"(her mother, a Russian Jew), and "Reuven,"(her father, a German Jew);
c. Her parents were immigrants to Belgium, hiding out from the Nazis;
d. She did not know her place of birth, but represented that she suspected it may have been Poland.
(App. P. 0004)
In the course of her research, Daniel learned that, at times, Jewish children of the Holocaust lost their identities when their parents were taken away. Without the names, date, and place of birth of "Mischke," it was not possible for Daniel to check the personal aspects of the story(App. P. 0005).
The American book was published in April 1997, under the title, Misha: A Memoir of the Holocaust Years. The American edition, was followed shortly thereafter by a French version, published by Editions Laffont, under the title, Surivre avec les loups, (Survival with Wolves), the rights to which were reserved exclusively to Defonseca and Lee under their respective publishing agreements. Neither Mt Ivy, nor Daniel, had any input with respect to the French edition, other than to make several specific minor corrections requested by Laffont. Other foreign editions followed(App. P. 0005).
Two significant changes were made in the Laffont editions, and subsequent editions, the rights to which were controlled by Defonseca and Lee. Identifying photographs from Defonseca’s earlier life were removed, and the "false identity" of "Mischke" was changed from Monique DeWael, to Monique Valle(App. P. 0005).
Following the inception of the underlying litigation in May of 1998, until March of 1999, Defonseca represented herself(App. P. 0005). In the course of her self-representation, Defonseca filed a counter claim against Lee, contending that Lee had breached her collaboration agreement with Defonseca, and had engaged in other tortious conduct(App. P. 0005).
The counter-claim filed by Defonseca against Lee represented that Defonseca had complied with all of the terms of the collaboration agreement, including that the book was, "based on the author's life experience, accomplishments, and impact upon society"(App. P. 0006).
Additionally, Defonseca, acting pro se, filed a cross claim against Daniel/Mt Ivy, alleging, among other things, breach of contract(App. P. 0006). In the course of her self-representation, Defonseca intentionally, and systematically, filed pleadings with the Court that were materially false(App. P. 0007).
Even after the appearance of counsel on her behalf, on or about March 11, 1999, Defonseca continued to fuel a continuous and unconscionable scheme calculated to interfere with the judicial system's ability to impartially adjudicate the matter. This included perjured testimony at her deposition, and at trial(App. P. 0008-0009).
At the trial in the underlying litigation, the myth of Defonseca's persona as a Holocaust survivor was a central building block founded on Defonseca's perjured testimony, and propagated by her counsel(App. P. 0009).
Indeed, the book itself was introduced into evidence at trial, and was at the disposal of the jury to peruse, read, and contemplate during deliberation.Examples of Defonseca's calculated, perjurious, testimony, included:
a. That, as a Holocaust survivor, Defonseca was extremely sensitive to threats or false representations;
b. She was paid $2,000-4,000 for speeches given regarding her status as a Holocaust survivor;
c. That Defonseca is, "not very good at fighting people. I used to be with animals";
d. That Defonseca had to steal in order to eat during the war;
e. That Defonseca, during the war, had to kill to survive;
f. Regarding her parents, reported to have been taken by the Nazis and taken to a concentration camp:
"For me, having a movie, it is a memory as to my parents. And I hope that somebody in the world would say I have known them";
"Because a lot of survivors are old now. That is not so much left. And if it continues, I am going to have a lesser opportunity to find somebody, somewhere";
g. Regarding her encounter with wolves in a promotional event sponsored by Mt Ivy at Wolf Hollow in Ipswich, MA, "Those wolves are not the wolves I knew 50 years ago when I was a kid, innocent in the woods."
(App. P. 0008-0009).
The impact that Defonseca's status as a Holocaust survivor would have on the jury was not lost on Defonseca's counsel, Ramona Hamlin. In closing argument, she hammered home the point, arguing to the jury:
a. "And what was she trying to defend herself about? Her life story. The tragedy has already been visited on Misha, that's not in dispute. She lost her parents at 7 years old, and wandered through Europe unprotected for four years. That's not in dispute. That happened to her."
b. "All along the reason that Misha got involved in this project was that Misha wanted to write a book to make a memory for her parents. Misha wrote to Jane in December of 1997, 'Remember you said repeatedly that you wanted to make a businesswoman of me, and I didn't want to. I wanted this book as a memory.'"
(App. P. 0009).
Her false claims of writing her book to locate anyone who knew her parents in the Nazi Concentration camp were geared towards eliciting jury sympathy. The perjurious evidence, presented by Defonseca at trial, in concert with her counsel's propagation of same, yielded the desired result, a massive award in favor of Defonseca against Mt Ivy and Daniel(App. P. 0010).
In a twenty-four page, special verdict form, dated August 20, 2001, the jury found, among other things:
a. That Mt Ivy Press breached its publishing agreement with Lee;
b. That Mt Ivy Press breached its publishing agreement with Defonseca;
c. That Lee had performed her obligations under the publishing agreement with Mt Ivy Press;
d. That Defonseca had performed her obligations under the publishing agreement with Mt Ivy Press;
e. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Defonseca;
f. That Mt Ivy Press had breached M.G.L. c. 93A with respect to its business dealings with Lee.
(App. P. 0304-0326).
An appeal was taken to the Appeals Court of Massachusetts, resting predominantly on the theory that the state law claims, involved in the underlying action, were pre-empted by Federal copyright law (17 U.S.C. Sec. 101 et. seq.). On May 17, 2005, the Court of Appeals, focusing solely on the pre-emption issue, affirmed(App. P. 0011).
At the time of trial, in August of 2001, there was no affirmative evidence available to Daniel that Defonseca's account was, in any way, shape, or form, false(App. P. 0011). During the pendency of the appeal, however, Daniel began to suspect, for the first time, that there may have been certain aspects of Defonseca's account that may not have been the literal truth(App. P. 0011).
Daniel began to look for concrete evidence, one way or another, regarding the truthfulness of the Defonseca account. Towards this end, Daniel contacted several genealogists, who informed her that, based upon the limited information available, they could offer no assistance in researching Defonseca's family history(App. P. 0011).
On or about June 2006, Daniel, in reviewing cartons of documents turned over to her by Mt Ivy's literary agency, post-trial, came upon a photocopy of a signature card for two of Defonseca's bank accounts. A Middlesex Savings bank account form contained the following information: name: Monique(Misha) Defonseca; date of birth 5/12/37; birthplace: Etterbeek, Belgium; mother's maiden name: Donville(App. P. 0012).
For the first time, Daniel had a hint that there may have been inconsistencies in Defonseca's autobiography, to wit, that Defonseca had claimed that she knew neither the place nor date of her birth, nor her family name. Utilizing the information, Daniel attempted to access vital records in Belgium. However, Belgium has a privacy law which seals all vital records, birth, death, and marriage, for 100 years(App. P. 0012).
Daniel also contacted two private detectives, in order to trace Defonseca's path of immigration to the United States in 1985. However, again, the subject records were sealed and unavailable(App. P. 0012). Daniel then went to the Federal archives in Waltham, MA to search the ships' passengers lists, without success. Daniel also ran the names Donville and Dewael through the database of Yad Vashem, a world-wide repository of names of more than three million Holocaust victims, without a match. Daniel also posted queries, to no avail, on various Belgium genealogical websites(App. P. 0012).
In July, 2007, Daniel began writing a book on the subject of the ten years of litigation associated with the Book and posting chapters as they were completed on the World Wide Web as a blog. Daniel introduced her Book by saying that the end of the story had not yet occurred and asked that anyone with knowledge of the missing pieces of the account contact her. In December, 2007, Daniel engaged the services of a private detective firm with operatives in Belgium, but was still unable to attain any further information regarding Defonseca's origins(App. P. 0012). In January of 2008, Daniel was contacted by Sharon Sergeant, a forensic genealogist, who had come upon her blog on the Internet. Ms. Sergeant offered to assist Daniel in her quest to garner information regarding Defonseca's genealogy and background. Sergeant learned that the book had been translated into 18 languages and made into a full-length feature film in French billed as a “true story.” Sergeant initially compared various editions of the book, particularly the French translation and observed two key differences: the “false identity” given to the orphaned “Mischke” by her “adoptive” family was changed from Monique DeWael in the Mt Ivy edition to “Monique Valle” in the French and U.K. editions, and the photographs of Defonseca’s childhood in the Mt Ivy edition had been removed from foreign editions(App. P. 0012).
Sergeant then searched various databases, including the Avotaynu database of seven million Jewish names, without a match on the names Valle, Donville and DeWael. She searched Jewish deportation records for a married couple with the first names Gerusha and Reuven and found nothing. Next, Sergeant, observing that there were many references to Catholicism in the book, as well as references to comic strips that had appeared in periodicals circulated in Catholic schools, decided to research Catholic baptismal records in Belgium. In the course of such research, Sergeant discovered that there was a maternity ward in a hospital in Etterbeek, the district in Brussels identified on Defonseca's bank record as her place of birth. Correspondingly, Sergeant obtained the services of a Belgian researcher who visited the Catholic parishes located in this district(App. P. 0012-0013).
Finally, the Belgian researcher located proof of Defonseca's true identity. A baptismal record for Monica Ernestine Josephine DeWael disclosed that she was born on May 12, 1937 in Etterbeek, daughter of Robert Henri Ernest DeWael, and Josephine Germaine Barbe Donville. The family's address on the baptismal certificate was in another district of Brussels, Schaerbeek. Subsequently, an elementary school was located in the same neighborhood as the DeWael family home in Schaerbeek. A week later, the school produced a record indicating that Monique DeWael had been a student at the elementary school in September 1943, right in the middle of her reported 3,000 mile journey(App. P. 0013). At long last, Daniel learned that the name “Monique De Wael,” the purported “false identity” given to Mischke in the Mt Ivy book was, in fact, Defonseca’s real name.
Daniel posted the two documents on her blog and contacted an outspoken skeptic of Defonseca’s story who had been posting his opinions on a Belgian blog, who then notified the Belgian press of the newly-discovered evidence. With the correct name, (DeWael, not Valle, as had been published in the French edition) the Belgian press was able to uncover even more evidence of Defonseca’s fraud(App. P. 0013).
On or about March 3, 2008, Le Soir, the leading newspaper in Belgium, published an account in which it was revealed that Defonseca's real father, Robert DeWael, had collaborated with the Nazis and turned over to them members of the Belgium resistance. Confronted with the irrefutable evidence, Defonseca acknowledged, for the first time, in a statement dated 2/28/08, that the memoir was a hoax. In her statement, approximately translated from the French, and reported in the Boston Globe on February 28, 2008, Defonseca acknowledged that every essential element of her autobiography was false(App. P. 0013).
Daniel spent several years working to ascertain whether or not Defonseca's memoir was truthful. It was only with the advancement of the internet, and the corresponding availability of worldwide networking and information access that the truth regarding Defonseca's true identity, and the corresponding magnitude of the hoax perpetrated by her in her memoir came to light(App. P. 0013).
Once again, once the hoax was identified, Daniel/Mt Ivy retained counsel and commenced suit, seeking relief from judgment, in accordance with Mass.R.Civ.P. 60(b), within thirty-nine days(App. P. 0024).
IV. Argument
A. Standard of Review
When evaluating the sufficiency of a Complaint, pursuant to Mass.R.Civ.P. 12(b)(6), the Court must accept as true the well proven factual allegations of the Complaint, as well as any inference which can be drawn therefrom, in the plaintiff’s favor. Eyal v. Helen Broadcasting Corp., 511 Mass. 426, 429, 583 N.E.2d. 228 (1991). The Complaint should not be dismissed for failure to state a claim, unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d. 870 (1976). A Complaint is not subject to dismissal if it could support relief under any theory of law. Whitinistille Plaza Inc., v. Kotseas, 378 Mass. 85, 89, 390 N.E.2d. 243 (1979).
B. Reviewing the evidence in the light most favorable to Daniel/Mt Ivy and resolving all reasonable inferences in their favor, the trial court erred in determining that the plaintiffs could establish no set of facts that would entitle them to relief from judgment, pursuant to Mass.R.Civ.P. 60(b)(6).

In its opinion, the Court concluded that the plaintiff’s allegations of fraud, misrepresentation, and misconduct, on the part of Defonseca, fell within the parameters of Rule 60(b)(3), and, correspondingly, did not meet the criteria required for relief under 60(b)(6). Because Rule 60(b)(3) has a one year statute of limitations, the court determined that the claim brought by Mt Ivy/Daniel, was untimely, and, correspondingly, subject to dismissal. It is the position of the appellant, herein, however, that, if ever there was a case in which relief under Mass.R.Civ.P. 60(b)(6) must be permitted, this is it.
It is established law in Massachusetts that relief under Rule 60(b)(6) is limited to instances, “when the vacating of judgment is justified by some reason other than those stated in subdivisions (1)-(5),” Parrell v. Keenan, 389 Mass.809, 814, 452 N.E. 2d 506(1983). Here, the facts of this case clearly demonstrate that there is “something more” at issue than a simple fraud, misrepresentation, or misconduct of an adverse party, and, correspondingly, Rule 60(b)(6) relief is appropriate, and the one year limitation rule of 60(b)(1)-(3) does not apply. 11C.A.Wright, AR Miller & M.K. Kane Federal Practice and Procedure 2864 @350-351(2d ed. 1995)(Wright), “A judge, considering a Rule 60(b)(6) motion, may consider whether the moving party has a meritorious...defense...whether extraordinary circumstances warrant relief...and whether the substantial rights of the parties...will be affected by granting the motion.” Owens v. Mukendi, 448 Mass.66,72, 858 N.E.2d 734 (2006). In substance, Rule 60(b)(6) vests, “power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klapprott v. United States, 335 U.S. 601, 615 (1949). Allowance or denial of motions brought pursuant to Rule 60(b) are committed to the sound discretion of th trial court. Teamsters, Chauffers, Warehousemen, & Helpers Union, Local 59 v. Superline Trans.Co., 953 F.2d 17, 19 (1st Cir. 1992).
Each of the three factors to be considered by the Court, in Owens vs. Mukendi, supra, clearly line up in favor of allowance of the appellant’s motion. First, the appellant has a myriad of meritorious defenses that she was not able to advance at trial. Not only was the defense meritorious, but would have required either a ruling in favor of the plaintiff, as a matter of law, with respect to the breach of contract count, either by means of Summary Judgment or directed verdict. Specifically, both Defonseca and Lee warranted, in their contracts with Daniel/Mount Ivy Press, that the accounts given by Defonseca were entirely truthful. The specific language of the warranty provisions contained in the contract were as follows:
A. The Author represents and warrants to the Publisher that, with respect to the Work as submitted by Author, excluding revisions or additions by Publisher (i) the Work is not in the public domain; (ii) the Author and her collaborator are the sole and exclusive owners of the Work and have full power, free of any rights of any nature whatsoever in any one that might interfere therewith, to enter into this Agreement and to grant the rights hereby conveyed to the Publisher, (iii) the Work has not heretofore been published in whole or in part; (iv) the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the owners thereof; (v) the Work does not, and if published will not, infringe upon any proprietary right at common law; or any statutory copyright, or trade names, or patent, or trademark rights, or any other right whatsoever, (vi) the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party; (vii) all statements of fact are true or based upon reasonable belief, except for facts and identities deliberately misstated to preserve confidentiality or for other valid reasons, provided the Author notifies the Publisher thereof (viii) the Work, if biographical or “as told to” the Author, is authentic, and (ix) the Author will not hereafter enter into any agreement or understanding with any person, firm, or corporation that might conflict with the rights herein granted to the Publisher (App. P. 0297)(Emphasis Added).

As the Court is well aware, a warranty provision in a contract is effective and enforceable, regardless of the state of mind of the parties at the time that the contract was consummated. Certainly, at this juncture, it is beyond dispute that Defonseca knew that she was violating the provision at the time that she executed the contract. It is not clear, without further discovery, whether Lee had similar knowledge. However, whether or not Lee knew of the falsity of the account at the time that the contract was effectuated, is of no consequence. Whether Lee knew, or didn’t know, the contract was nonetheless violated by Lee. Correspondingly, both Lee and Defonseca violated their respective contracts with Mt Ivy by providing a false autobiographical account to Mt Ivy.
Had the fact of the hoax been known at the time of this trial, the plaintiffs would have filed a motion for summary judgment with respect to the issue of contractual breach by Defonseca and Lee, and would have won that motion. The jury would have been instructed that, as a matter of law, it must find that Defonseca and Lee violated the warranty provision of the contract. Instead, the jury entered findings, at the conclusion of the trial, that Defonseca and Lee had, at all relevant times, complied with their respective obligations to Daniel/Mt Ivy under the two publishing agreements(App. P. 0010).
As such, Daniel not only had a meritorious defense, but an ironclad one against Defonseca and Lee alike, that would have guaranteed a different result at trial, had this information been known.
This is to say nothing of the effect that evidence of the hoax would have had on the remainder of the issues that played out at the trial of this matter. Without question, the entire testimony of Defonseca and of Lee with respect to their contractual rights and obligations regarding them would have been nullified had it been known that the fundamental premise of the case, i.e. the truthfulness of the account, was invalid. Certainly every piece of testimony that Defonseca and Lee offered at trial would have been negated.
This is not speculation. When one imagines a scenario in which the plaintiffs are caused to admit, at the outset of a trial, that the book which they submitted to Daniel/Mt Ivy Press was sheer fabrication, presented as fact, no reasonable person could believe that it would not entirely undermine their credibility and effectiveness as witnesses in other, collateral issues.
Moreover, the fact of the hoax would have fit like a puzzle piece into the defenses advanced by Daniel at trial. For instance, Daniel, who had a vested financial interest in promoting the book, contended that she met with resistance on the part of Defonseca to a multitude of efforts to promote the book, including, but not limited to, an appearance on the “Oprah” program(App. P. 0018). Given that “Oprah” is aired in Europe as well as the U.S.,it is easy to see, in retrospect, that the reason why Defonseca resisted many of Daniel’s efforts to heighten the profile of the book was that increased notoriety would have undoubtedly lead to greater scrutiny of the name change. It also explains Defonseca’s insistence of control of the French language edition of the book, wherein Defonseca changed the name De Wael to Valle, and identifying photographs were removed. Defonseca had a vested interest in limiting the information released in the European market, as she faced a substantially greater risk of being “outed” in that forum. In short, the more Daniel tried to push the book, the more reluctance she observed in Defonseca. The fact of the hoax would have bolstered Daniel’s testimony that many of the roadblocks encountered in the promotion of the book were laid by Defonseca herself and that, despite Daniel’s best efforts, those roadblocks, to a large extent, proved insurmountable.
The court must further ask itself, in addition to hard evidentiary matters, whether or not the underlying story, as related by Defonseca, and her counsel at the trial, impacted the sympathies of the jury, the trial court, and even the Court of Appeals. Defonseca’s account, contained in the book, which was provided as an exhibit to the jury, told a story of Jewish child whose parents were taken from her by the Nazis, set adrift in war-torn Europe. Hers was a story of tremendous suffering, but also of perseverance and triumph in the face of seemingly insurmountable odds.
How could any fact-finder not empathize with such a victim? How could any aspect of this trial proceed with any level of impartiality, given the fact that the centerpiece of plaintiff’s case was this victimized, yet heroic, woman? The reality is that no reasonable fact finder could conclude, looking back on this trial, that this did not play a substantial role in the jury’s filtering of the facts and evidence. We know that the story held sway with the Court of Appeals which commenced its opinion by stating:
"Shortly after the Nazis seized her parents, seven year old Misha Levy fled alone to the forests and villages of Europe, where she wandered for four years. Along the way, she witnessed atrocities, found herself trapped in the Warsaw ghetto, and killed a Nazi soldier in self-defense. Miraculously, she survived her ordeal, thanks to her strong will and guile, as well as, incredibly, the aid of a pack of wolves, who "adopted" and protected her, providing food, companionship, and affection. Needless to say, her story was compelling" (App. P. 0011).

If her story was compelling to the Court of Appeals, it surely was compelling to the jury in the underlying trial. Conversely, had the jury known that Defonseca had fabricated this hoax, trading on the horrific victimization of the Jewish people by the Nazis in the 1940s, their view, assessment, and evaluation of this witness would have undoubtedly swung in the opposite direction.
In summary, Daniel had not only strong, but unshakeable, legal defenses at the underlying trial that she was unable to advance. Again, these defenses apply equally to Defonseca and Lee. Lee, like Defonseca, as a matter of law, breached her contract with Daniel/Mt Ivy. A finding that Daniel failed to adequately promote the book would, in the eyes of the jury, have damaged not only Defonseca, but Lee. Moreover, the canonization of Defonseca, and demonization of Daniel, led to the inevitable conclusion that Daniel trampled not only Defonseca, but the purportedly innocent ghost-writer as well. Correspondingly, the first of the Owens’ factors is met.
The Court must now consider the second Owens’ factor, i.e., whether, “extraordinary circumstances warrant relief.” If ever there has been a case, in the history of Massachusetts jurisprudence, in which extraordinary circumstances exist, warranting the vacating of a judgment, it is this case. To be sure, there has been a grave miscarriage of justice visited upon Daniel as a result of the fraudulent conduct of Defonseca at trial. Defonseca fabricated a false Holocaust survivor story, ensnarled Daniel in its’ web, sued Daniel for failing to actively promote the hoax, and recovered a 32.4 million dollar verdict against Daniel, thereby financially ruining her. In effect, Defonseca utilized the Massachusetts court system as an instrument in a plot to profit from her deceit and duplicity, to the grave and irreversible detriment of Daniel. The impact upon Daniel can not be overstated. The judgment obtained by Defonseca and Lee was one of the largest jury verdicts in the history of the Massachusetts court system. A thirty-three million dollar verdict would be devastating to a large corporation, much less to an individual such as Daniel, and a small corporation, such as Mt Ivy. The harm which has come to Daniel, as a result of Defonseca’s actions, cannot be permitted to stand.
The extraordinary nature of this situation extends far beyond the impact which Defonseca’s hoax has had on this court system, and the underlying litigants, however. Should this Court place its imprimatur upon the judgment in this case, it will serve to diminish and corrode the legacy of Holocaust victims and survivors across the world. One cannot ignore the subject matter of Defonseca’s hoax. Put bluntly, Defonseca traded and profiteered upon one of the greatest human tragedies in recorded history, the Nazi persecution and victimization of the European Jewish population during the 1930s and 1940s. Defonseca, knowing that stories of Holocaust survivors are of great public interest and empathy, and, correspondingly, profitable and marketable, decided to proclaim herself such a victim. She and Lee made money on the backs of the true victims of the Holocaust, and then utilized this court system as a means to further capitalize upon her devious scheme. Furthermore, Defonseca’s memoir, subsequently revealed as fabrication, plays directly into the hands of those who would deny that the Holocaust occurred at all. As noted by Chuck Lane, a member of the Editorial Board of the Washington Post, and a teacher of a class on journalist fraud at Princeton University, in an interview with NPR on March 5, 2008: “There is a real harm though...when you have people faking documents about the Holocaust. Unfortunately, there are Holocaust deniers in this world, and that sort of fabrication...can really feed very pernicious views about the underlying truth about actual historical events.”1 Commenting on another false Holocaust memoir, “Angel at the Fence” Ken Waltzer, Director of Jewish Studies at Michigan State University stated, “Holocaust experience is not heart-warming, it is heart-rending. All this shows something about the broad unwillingness in our culture to confront the difficult knowledge of the Holocaust... All the more important then to have real memoirs, that tell of real experience in the camps.”
Never has this issue been more topical, given the recent statement of Bishop Richard Williams, denying the Holocaust generally, and the use of gas chambers specifically. This remains, sixty years after WWII, an issue of critical social importance.
Should this Court allow the judgment to stand, it would constitute an endorsement of Defonseca’s activities, heretofore described. Unquestionably, there will be far-reaching social and historical ramifications should this Court signal that Defonseca’s conduct, in some respect, was, and is, tolerable, or otherwise acceptable. This Court should not be complicit in the ratification and perpetuation of Defonseca’s scheme, which, ipso facto, cheapens and diminishes the legacy of Holocaust victims and survivors alike. On the other hand, should the Court decide to take the appropriate action, and revoke the underlying judgment, a clear message would be sent to the world at large, that the Massachusetts court system will not tolerate this abject affront to the historical and sociological legacy of the Holocaust.
Further, the ramifications of this case also implicate the interests of the publishing industry as a whole. As the Court is aware, there has been a proliferation of profitable hoax memoirs in recent years. In each of those cases, publishers, such as Mt Ivy, have been victimized by unscrupulous “authors” who warrant the truthfulness of their stories, but then produce a product which is created from whole cloth. As a matter of public policy, publishers and readers alike should be able to rely upon the representations of authors with respect to the truthfulness of the materials introduced into the stream of commerce. The integrity of the publishing institution is weakened and watered down each time a fabricated autobiography finds its way into a reader’s hands. Once again, should this Court allow Defonseca’s fraud to stand, it would undermine the legitimacy of the publishing houses which, across the world, invest money and take financial risk in introducing to the marketplace important autobiographical literature. The message that this Court would send, if it allowed Defonseca’s conduct to stand, would be that the Courts will endorse and embrace such falsity, so long as it is sufficiently well-concealed, that it is undiscoverable for years after the book has been introduced and the money made by the author. This represents yet another extraordinary aspect of the case, which must be considered by the Court, in determining whether or not equitable relief is due under these facts.
The third Owens’ factor is also met. The substantial rights of the parties will be affected by the granting of this motion. There will be substantial changes in the positions of the parties, as they now stand, as a result of the Court’s ruling in favor of the plaintiff on this matter. Indeed, this is entirely the point. As the Court in Klapprott, supra, observed, “in simple English, the language of the ‘other reason’ clause, for all reasons except the five particularly specified, vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Indeed, the positions of the parties must change for justice to be served. The respective duties and obligations of the parties must be evaluated by a fact finder in full light of the truth. Only then can the appropriate liabilities be fairly assessed.
In summary, the Court of Appeals must ask itself, is there something more here? Respectfully, the appellant would submit that the facts and circumstances of this case extend far beyond what the trial court characterized as a “fascinating factual background”(App. P. 0397). The implications of allowing this judgment to stand have a wide reaching public policy impact that affects not only the party litigants, but the very core of the Massachusetts judicial system itself. It is easy to be swept away with the mechanical aspects of our justice system, and miss the forest for the trees. Generally, in the interest of finality, application of the rule should have meager scope. But, courts should keep in mind that the purpose of the rule is to accomplish justice. For that purpose, Courts may construe the rule liberally. Freitas v. Freitas, 26 Mass.App.Ct. 196, 198, 525 N.E.2d. 438 (1988). When the Court of Appeals looks at itself in the mirror, it cannot be satisfied that substantial justice has been accomplished in this case. Can justice truly be said to have been done, when Daniel was saddled with a 33 million dollar verdict in a trial in which the truth of the memoir was accepted fully by all: judge, jury, defendants? Can the Court of Appeals tell itself that it has served justice, when the writer of a fabricated Holocaust memoir prospered by virtue of a trial, using the mechanism of the Massachusetts judicial system, riding the falsity of those memoirs to the finish line? Can this Court of Appeals feel that it has done its job when the Massachusetts judicial system has been used as a pawn in an unconscionable scheme, to prosper on the backs of Holocaust victims, and on the manipulation of trusting readers? If this Court hesitates in answering yes to these questions, then it must look deeper in its analysis of whether this case truly presents, “something more” than garden variety fraud; implicating societal concerns that span far beyond the relationship of the underlying litigants. This court has the power, created by the legislature, to ensure that the right thing is done in this case. It is not the easy route. It is not the expedient route. It is, however, the step that the Massachusetts judicial system must take to wash its hands of the misdeeds that were perpetuated by the appellees, leading to an erroneous and unconscionable judicial outcome.
Indeed, Massachusetts courts have allowed relief from judgment in circumstances far less egregious than those that apply in this case. For instance, in Harvey & Sons v. North Works Properties Inc.,19 Mass. Law Rep. 82; 2005 Mass. Super. Lexis 59 (2005). The Superior Court, sitting in Worcester, vacated a judgment, utilizing 60(b)(6) because the amount of the underlying judgment bore no accurate relationship to the true damages sustained by the plaintiff. The Court, in that case, determined that it simply could not allow such an inappropriate judgment to stand, even though the conduct of the defendant in that case was a precipitating factor in the creation of the erroneous underlying judgment. The court, nevertheless, deemed it imperative to have an accurate measure of damages. The judgment was vacated.
Similarly, the Suffolk County Superior Court in Suffolk County Sheriff v. Afscme, 16 Mass. Law Rep. 511 2003; Mass. Sup. Lexis 223 (2003) vacated an arbitration award, because false testimony was given at an arbitration hearing. Based upon public policy concerns, the Superior Court vacated, utilizing Mass.R.Civ.P. 60(b)(6).
The same is true, also, of the Court of Appeals, which has affirmed Relief from Judgment entered by the trial court on some occasions, and imposed it on others. For instance, in Bowers v. Fordham Appeals of Marshfield & Others, 16 Mass. App. Ct. 29, 448 N.E.2d. 1293 (1983), the Court of Appeals overruled the trial court’s refusal to apply 60(b)(6) to vacate a judgment, in a case where the Court determined that a selectman for the town of Marshfield had entered into a consent agreement, with respect to which he lacked authority to bind the town. So too did the Appellate Division of the District Court reverse a trial court for failing to vacate a judgment, pursuant to Mass.R.Civ.P. 60(b)(6), in a situation where the record reflected that a consent judgment was improperly derived. See Duco Enterprises Inc., v. Apdelnour, 1994 Mass. App. Div. 103; 1994 Mass. App. Div. Lexis, 45 (1994). Similarly, the Appellate division of the District Court affirmed a trial court determination, to vacate, under Mass.R.Civ.P. 60(b)(6), a judgment that had arisen out of a respective transfer of a case, noting that extraordinary circumstances existed, because, “the award of damages exceeded the amount sought in the statement of damages...” See Nixon v. Petrell, 1993 Mass. App. Div. 1; 1993 Mass. App. Div. Lexis 1 (1993).
Additionally, in the case of Kniskern v. Melkonain, 68 Mass. App. Ct. 461, 862, N.E.2d. 440 (2007), the Court of Appeals upheld a trial court’s determination that a judgment needed to be vacated, under Mass.R.Civ.P. 60(b)(6), notwithstanding the lack of any effort, whatsoever, on the part of the individual against whom the judgment had been entered, thereby leading to such judgment, because the judgment, if allowed to stand, would be contrary to the exclusivity provisions of the Worker’s Compensation Act. Similarly, the appellate court in Winthrop Corp., v. Lawenthal, 29 Mass. App. Ct. 180 (1990), reversed a trial court decision, refusing to vacate a judgment, pursuant to Rule 60(b)(6), because an arbitrator was not armed with full information at the time that the underlying arbitration was undertaken. The Court held that it could not allow the judgment to stand, because it was, “left with the abiding conviction that justice has not been done with respect to the issue of legal fees, a matter of particular concern to the Court.” Here again, read fully, at the core of this decision, is the financial outcome to one of the litigants, that simply did not correlate to actual damages. If the unjust imposition of a few thousand dollars in attorney’s fees in the Winthrop case, can justify a vacating of the judgment in the Mass.R.Civ.P. 60(b)(6), what of a 33 million dollar judgment against Daniel here?
Thus, it is clear, that trial courts, and appellate courts, under appropriate circumstances, will vacate judgments, utilizing Mass.R.Civ.P. 60(b)(6), after one year, where justice so requires. When contrasted with these situations, in which it was determined that “something more” existed, because an inappropriate damage award was entered, or because the judgment conflicted with procedure, the case at hand has to be considered “something more, than something more.” Again, in addition to the social policy issues, the appellant herein has a 33 million dollar judgment against her, arising directly out of the fraud and malfeasance of Defonseca, the rewards for which were similarly visited upon Lee, whose financial interests were aligned with Defonseca’s throughout the trial. Thirty-three million dollars is a life destroying award. Daniel’s life has literally been decimated by virtue of this verdict. If other Appellate panels can determine when awards should be vacated, because, in essence, they do not correlate to the true amount of damages that should have resulted, then certainly this case must fall into this category.
C. The Trial Court failed to construe the evidence, and related inferences, in the light most favorable to the Appellants, when it concluded that the fact of the hoax had little or no impact on the outcome of the trial in the underlying litigation.

At the outset of its opinion, the Court acknowledges its obligation to construe the evidence in the light most favorable to the plaintiff, and to accept those allegations made by the plaintiff, in its Complaint, as true. Should not the trial court, in its analysis, have accepted the reasonable inference that the fact that the book, which was at the center of the trial, was a hoax, would have profoundly, and across the board, affected every aspect of the trial? Just as jurors are instructed not to discard common sense at the courtroom’s door, neither should the courts. No reasonable person could conclude that this information, if known to the jury, would not have profoundly affected the outcome of this trial. The entire event was colored by the notion that Daniel breached her contracts with Defonseca and Lee, a fact which, if the hoax were known, would have been an impossible conclusion for the jury to reach. The entire process was infected with the ill-begotten notion that Defonseca, victimized during World War II, was victimized again by an unscrupulous publisher. For the purposes of the motions brought by the defendant, and, in fact, in a real world analysis, the Court was required to accept the inescapable fact that the masquerade of deception as truth at trial not only impacted the trial, but drove the outcome thereof.
Further, the trial court’s presumption that the underlying trial was really all about the conduct of Daniel, within the framework of everybody’s belief that the memoir was truthful, is entirely misplaced. What we now know is that all the evidence against Daniel/Mt ivy on which the court predicated its findings of “egregious conduct”(App. P. 0066) was proffered by a de facto perjurer and a second party who stood to gain immensely from that perjury. Further, how can Daniel be culpable for failing to market a product that was, in truth, valueless? A memoir known to be false will generate no interest in the buying public, and thus has no market value. In fact, history has shown that a responsible publisher, upon learning of the falsity of a memoir, should take affirmative steps to ensure that the work is not marketed or sold at all. And so it was in the latest of false Holocaust memoirs, offered by Herman Rosenblat, “Angel at the Fence.” When Rosenblat’s account of his time in a concentration camp was proven false, the publisher, Berkeley Books, immediately cancelled publication of the book and demanded that the author and the author’s agent return all money that they received for the work. Daniel would have taken the same course, had she discovered the fraud at an earlier time. How can the underlying judgment be fundamentally sound as the trial court states in its opinion, when the building block of the financial losses claimed by the plaintiff in the underlying litigation was a memoir that, at its core, had no market value? Indeed, all would agree that the appropriate course for the publisher to have undertaken, once the fraud was discovered, was to immediately cease to market the book, and, most probably, as the publisher in the Rosenblat case did, demand restitution from the writer. There would have, and should have been, no profits from this book, so how can 33 million dollars in damages awarded Lee and Defonseca arise from a book which, had the facts been known, would not have made dollar one?
Further, it is clear that the jury, and later the trial court in its 93A decision, blinded with empathy, were willing to take huge leaps of faith, relative to the evidence in the underlying case. Without the benefit of any expert accountant testimony, judge and jury accepted without specificity that “monies” had been “misappropriated,” or “pilfered” by Daniel(App. P. 0060) without identifying the dollar amount of the monies, their source, the manner of pilfering and misappropriating(check, cash, other), any supporting paper trail, or any monies that were unaccounted for by Mt Ivy(App. P. 0060).
In short, both the jury, and, more distressingly, the trial court, blissfully accepted wildly speculative claims of loss, based upon entirely incompetent evidence, all in the name of doing “justice.” The proof is in the pudding, absent court/jury infatuation with the romance of Defonseca’s story, the staggering verdict in this case would be inconceivable.
D. The plaintiff is entitled to relief pursuant to Mass.R.Civ.P. 60(b)(6) because a fraud occurred on the court at an underlying trial.

Mass.R.Civ.P. 60(b)(6) specifically preserves to a litigant, a right to file an independent action in order to vacate a judgment based upon fraud upon the Court. “A fraud on the Court occurs where it can be demonstrated clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial systems’ ability impartially to adjudicate a matter by improperly influencing the trial or unfairly hampering the presentation of the opposing party’s claim for a defense.” Paternity of Cheryl, 434 Mass. 23, 35, 746 N.E.2d. 488 (2001). The doctrine embraces, “only that species of fraud which does, or attempts to, defile the Court itself, or is a fraud perpetuated by officers of the Court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Pena v. McGill Dev. Corp., 388 Mass. 159, 165, 445 N.E.2d. 1059 (1983).
It is axiomatic that there was rampant and unhindered perjury at the trial of this matter, offered by Defonseca. Indeed, the introduction of the book itself into evidence constituted the admission of perjurious evidence. Beyond the actions of Defonseca as a witness, however, the Court must consider her conduct while acting as her own counsel, pro se, in this action. From the inception of the underlying litigation in May 1998, until March 1999, Defonseca represented herself, filing pleadings, propounding and responding to discovery, and interacting with the judicial system as pro se counsel(App. P. 007). During this time frame, Defonseca filed numerous pleadings with the Court, which were patently false. While representing herself, Defonseca engaged in a pattern of filing false and fraudulent pleadings with the Court. For instance, in her Verified Answer, Cross Claim, and Counter Claim, filed by Defonseca, acting pro se, on 7/20/98, Defonseca affirmatively represented, in addition to other matters:
a. "...the work, Misha...is Defonseca's story.";
b. "Defonseca, who is a Holocaust survivor, is not only deprived of a well-deserved quiet and comfortable enjoyment of a job well done...";
c. "...that the defendant has fully performed all duties with respect to the relevant contracts...";
d. "...all actions undertaken by the defendant were undertaken in good faith, and any representations that may have been made by the defendant were true";
e. That Defonseca and Lee were to write and prepare a manuscript about the life of defendant, Defonseca, "during the Holocaust years...";
f. That the conduct of plaintiffs herein, Daniel, and Mt Ivy, "caused heightened stress, emotional distress, and pain on Defonseca, who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or sugar coat the events that happened during the Holocaust.";
g. That Defonseca had experienced, "emotional pain of reliving her story.";
h. That each of the foregoing paragraphs were personally reviewed by Defonseca and that, "said statements are true and accurate to the best of her knowledge and belief."
(App. P. 0006-0007).
The representations made by Defonseca were made under notary seal. In other pleadings, filed pro-se, she represented:
a. "all actions undertaken by Defendant in Cross Claim, Defonseca, while acting as her own counsel, and any representations that may have been made by the defendant in cross claim to the plaintiff in cross claim were true";
b. "to the extent that the Defendant in Cross Claim, Defonseca, owes any duties to Mt Ivy and Daniel, Defonseca has fully performed and fulfilled such duties or obligations."
(App. P. 0007).
Furthermore, Defonseca repeatedly filed pleadings with the Court wherein she represented, pro se, that she had, at all relevant times, complied with her obligations under the publishing agreement with Mt Ivy, a fact now known to be entirely false. She further filed sworn affidavits with the Court, prior to retaining counsel, indicating the following:
a. That she felt that she had been taken advantage of by Lee, and Daniel/Mt Ivy, with respect to her, "story...without any consideration or respect for what I went through, not only in my earlier life, but during this whole, grueling, and unnecessarily lengthy exercise of reliving my experience, to make the book in English...";
b. that "my story, and my image belong to me. It is my life. Nobody has the right to exploit or make money from it without informing me and paying my share of the revenues";
c. That Defonseca was "terribly stressed to have to go over it again";
d. That Daniel had failed to, "gracefully accept" that Defonseca's parents were taken in 1941, as reported;
e. That, due to the alleged failure of Lee, Daniel, and Mt Ivy, to live up to their contractual obligations, she was, "reduced to ask for the help of the Jewish Family & Children's Services for food, assistance";
f. That "Misha's story is not 'Sleeping Beauty's' it is war, a child in the middle of war, and inhumanity at this time";
g. “This interference caused heightened stress, emotional distress and pain on Defonseca who is a survivor and, as such, is very sensitive to threats of misrepresentation, and to any tendency to downplay or to sugar coat the events that happened during the Holocaust.”
(App. P. 0007-0008).
It is now irrefutable that these representations, made by Defonseca, while acting as her own counsel, were knowingly and intentionally false, and intended to inflict disease upon the judicial process and machinery itself. The trial court herein sets unsupported and dangerous precedent by concluding that pro se litigants do not have to follow any ethical protocols and, further, do not become part of the judicial machinery itself. Public policy objectives, and prior holdings, dictate otherwise. Massachusetts law maintains that, “while pro se parties are not subject to the specific professional canons of ethics, which bind members of the bar, they are, as obligated, at the very least, to refrain from any action which, ‘obstructs or degrades the administration of justice, or derogates from the authority and the dignity of the court...’” Reznik v. Friswell, 2003 Mass.App.Div. 42, 44, citing Avelino-Wright v. Wright, 51 Mass. App. Ct. 1,5, 742 N.E.2d.578 (2001). It is clear that Defonseca, acting as pro se counsel, in her own case, undertook steps which obstructed or degraded the administration of justice, and derogated from the authority and dignity of the underlying trial court. In effect, she had stepped into the shoes of the lawyer who would have otherwise been representing her, thereby incurring corollary ethical obligations. Just as would be the case if an attorney intentionally and systematically filed fraudulent and false pleadings with the Court, Defonseca undertook an attack, not only upon the opposing litigant, but upon the very machinery of the judicial system itself. This is a classic example of fraud upon the Court itself. Indeed, the Courts have not even required that the party initiating such deception be acting as his/her own counsel, but have found fraud upon the Courts based upon the conduct of the underlying parties themselves. The seminal case in Massachusetts with respect to the issue of fraud upon the Court, is Rockdale Management Co., v. Shawmut Bank, 418 Mass. 596, 638 N.E.2d. 29, citing Aoude v. Mobil Oil Corp., 892 F.2d. 1115 (1st Cir. 1989). The Court in that case found that the conduct of the litigant constituted fraud upon the Court. Specifically, the Court found, “Rockdale, in proffering a forged document, providing misleading answers to interrogatories, and giving false deposition testimony, to use the words of Aoude, ‘has sentiently set in motion an unconscionable scheme, calculated to interfere with the judicial system’s ability impartially to adjudicate the matter.’” The Courts have similarly found that the conduct of a litigant, acting in concert with his lawyer to undermine the judicial process, can also constitute fraud upon the Court. Britt v. Rosenberg, 40 Mass.App.Ct. 552, 554, 665 N.E.2d. 1022 (1996). Correspondingly, the Court should have concluded that Defonseca committed a fraud upon the Court while wearing many hats, and utilizing many procedural mechanisms. The icing on the cake, however, is that for many months, Defonseca undertook this fraudulent and deceptive conduct, designed to undermine and defile the judicial machinery itself, while acting as her own legal representative.
This court must determine whether it is prepared to make law that a pro se litigant has none of the ethical obligations to the trial court, as has an attorney. In other words, is this court prepared to say that, a person representing his or herself, inclusive of filing pleadings, and engaging in discovery has no ethical obligation to act, as an attorney would, in an ethical manner? Are we prepared to give a pass to a pro se litigant? The trial court is happy to do so. “Defonseca’s role as a pro se litigant did not vest her with some special court sanctioned position which would rendered her fraud ‘fraud on the court’”(App. P. 0407). When a litigant puts on the hat of an advocate for the trial court, he/she becomes part of the machinery of the judicial system. He/She is no longer just a party, but part of the very fabric of the system itself. To find otherwise is to undermine the sanctity of the judicial system. We cannot have a situation in which non-lawyer advocates and attorneys play by a different set of rules. Those individuals who act as a lawyer, interacting with the opposing counsel, filing pleadings, undertaking depositions and discovery, must have a concurrent obligation to do so in an ethical manner. When a pro se litigant makes a decision to represent him/herself, thereby becoming entwined with the machine of the justice system, that individual must be required to follow the same rules and ethics to which attorneys are bound. In this case, Defonseca, while acting as her own counsel, knew that the pleadings she was filing were patently false and that the positions that she was taking were unmeritorious. Under such circumstances, it is axiomatic that the machinery of the judicial system has been defiled. When advocates, lawyers, non-lawyer representatives, or pro-se litigants lie and cheat they poison our judicial system, such that the system can not properly function.
Further, the fraud which Defonseca perpetrated on the Court tainted the entire judicial process. As such, none of the resulting findings of the jury were trustworthy, be they related to findings for Defonseca or Lee. While the degree of Lee’s complicity is unknown, nevertheless, her own financial interests and the subsequent award against Daniel was inextricably tied to the fraudulent evidence introduced by Defonseca. This was one trial. If the machinery was defiled by Defonseca, so too was it flawed with respect to claims and defenses of Lee.
V. Conclusion
The appellant can not emphasize enough the importance which this Court plays in achieving the goal of this justice system, to ensure that the judicial machinery is utilized to advance justice, and not to inflict injustice on the parties. The appellees herein have argued that the passage of time has made the interest of finality paramount, and the disposition of justice subsidiary thereto. In fact, in this case, the opposite analysis is required. It is the passage of time, and the unjust enrichment enjoyed by the appellees herein, which compels judicial action to reverse this wrong. In this society, it is our goal to correct wrongs and injustices once discovered. Hence, when the publisher in the Rosenblat case discovered the falsity of the memoir which it has published, it promptly pulled the book from the shelves, such that further damage might not stem therefrom. So too must this judicial system not reward the misconduct of Defonseca, unjustly enrich Lee, and punish Daniel, in the name of judicial finality, because Defonseca was clever enough to conceal her duplicity for a substantial period of time. The trial court acknowledges that the implications of this case stem beyond the litigants. As such, the public policy message which this court will send in its decision is paramount. This is not an isolated incident of fraud by a party, but an issue which is having ever increasing ripple effects throughout our society. There are no two ways about it. If this court says, in the interest of judicial finality, that it will not correct a baseless 33 million dollar judgment, imposed upon Daniel, ethereby rewarding Defonseca and, potentially, Lee, for their malfeasance, and for trading on the Holocaust, then more of the same can be expected. On the other hand, if this Court puts its foot down, and fixes a wrong, so grievous and with such widespread impact, it will similarly send a message to the world that, the Massachusetts judicial system will stand up for what is right and just, whether it is seven years, or seventy years, after judgment.

Plaintiffs/Appellants,
By their attorneys,

________________________
JOSEPH M. ORLANDO, ESQ.
BBO #380215
BRIAN S. MCCORMICK, ESQ.
BBO #550533
Orlando & Associates
1 Western Ave.
Gloucester, MA 01930
978-283-8100

CERTIFICATE OF COMPLIANCE
IN ACCORDANCE WITH M.R.A.P. 16(K)

I, Joseph M. Orlando, Esq., counsel for the Appellant herein, certify that the within Brief complies with all pertinent rules of Court, pertaining to the filing of such briefs.

______________________
JOSEPH M. ORLANDO, ESQ.

Now On YouTube

2009-02-27T13:03:00.000-08:00

CHALLENGING THE SLIME MACHINE.

2009-01-14T07:49:00.001-08:00

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

2009-01-09T13:39:00.000-08:00

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

Misha Defonseca and Herman Rosenblat: Two Holocaust hoaxters exploit the same fertile territory

2008-12-29T08:09:00.000-08:00

Another literary hoax bites the dust. Herman Rosenblat has admitted that his
sensational memoire, ³Angel at the Fence,² is a fake. Just last February,
another sensational Holocaust hoax was exposed and its author confessed. The
parallels between the two are striking.

In her book, Misha A Memoire of the Holocaust Years, published abroad
under the title, Survival with Wolves, Misha Defonseca tells how she
walked across war-torn Europe searching for her parents who were arrested by
the Nazis and living, at times, in the care of wolves.

In his book, Angel at the Fence, Herman Rosenblat tells how he found true
love when he was reunited with a little girl who had thrown apples to him
over the concentration camp wall.

Both are incredible, uplifting stories set against the terrifying backdrop
of the Holocaust. And both are inventions of their authors¹ imaginations.

Other similarities stand out:

Misha Defonseca fooled her publisher, Mt Ivy Press, and a movie producer.

Herman Rosenblat fooled his publisher, Berkeley Books, a division of
Penguin, and a movie producer.

Misha Defonseca only began telling her amazing ³true² story years later when
she and her husband, Maurice, hit financial difficulties.

Herman Rosenblat only began telling his amazing ³true² story years later
when he and his wife, Roma, hit financial difficulties.

The hoaxters¹ spouses were complicit in the scams. Maurice Defonseca
supported his wife¹s story. Roma Rosenblat supported her husband¹s story.

The Defonsecas were invited to appear on the Oprah Winfrey Show.

The Rosenblats appeared on the Oprah Winfrey Show.

People who questioned Misha Defonseca¹s story were called jealous,
anti-Semitic and deniers.

People who questioned Herman Rosenblat¹s story were called jealous,
anti-Semitic and deniers.

Misha Defonseca's "true" story was made into a French feature film,
Survivre avec les loups.

Herman Rosenblat sold the movie rights to his "true" story, Angel at the
Fence and production was to begin in March, 2009.

Misha Defonseca was cornered by the press (Le Soir) and forced to confess.

Herman Rosenblat was cornered by the press (The New Republic) and forced to
confess.

When confronted with evidence that her story was false, Misha Defonseca said
that her memories were affected by wartime trauma and that she had recounted
the truth as she remembered it.

When confronted with evidence that his story was false, Herman Rosenblat
said that his memories were affected by wartime trauma and that he had
recounted the truth as he remembered it.

Misha Defonseca's French publisher Bernard Fixot defended her by saying her
real life was even more touching than the story she told in her book.

Herman Rosenblat¹s movie producer defended him by saying his real life was
even more touching than the story he told in his book.

Concocting a literary hoax is dangerous business; truth has a way of seeking
the light. Most hoaxes fall apart when the work achieves its author¹s
desired goal: success and fame. Think of Clifford Irving¹s scam ³authorized
biography² of Howard Hughs which landed its author in jail, Benjamin
Wilkomirski¹s Holocaust memoire ³Fragments² which was exposed as false soon
after it won the National Jewish Book Award, James Frey¹s confessional tale
that was endorsed by Oprah and then collapsed, and Margaret Seltzer¹s fake
misery lit autobiography that caused a sensation and then was debunked. All
these hoaxes melted in the spotlight of fame.

Amazingly, unlike the others, Misha Defonseca¹s story survived for 20 years
in the spotlight, becoming an international bestseller and a feature film.
Moreover, she is unique in profiting immensely from it, suing her publisher
for failing to make the book a bestseller in the U.S. and winning a $33
million verdict that still stands, even after she confessed.

COMING SOON: Watch for more on the Defonseca scam on YouTube.

Also see: BESTSELLERthebook.blogspot.com

Letter received from Vera Lee's Lawyer

2008-10-31T09:20:00.000-07:00

FRANK J. FRISOLI, PC

FRISOLI AND FRISOLI

ATTORNEYS AT LAW

797 CAMBRIDGE STREET

CAMBRIDGE, MASSACHUSETTS 02141

October 27, 2008

Dear Ms. Daniel,

As you are aware, the Gloucester District Court entered an order requiring you to comply with the settlement agreement dated August 16, 2007 and suspended, at my request, the sentence of the 20 days in the House of Corrections that had been imposed upon you for violation of order of the court. Now that your frivolous action to set aside the judgment and revoke the execution held by my client has been dismissed by the Superior Court, you need to deal with me to resolve these outstanding issues or I will proceed to bring the matter back before Gloucester District Court and ask that the court revoke its suspension of the sentence previously imposed upon you. I will also seek additional sanctions by reason of your failure to comply with the agreement.

I have spoken with Coldwell Banker relative to the possibility of re-listing [your house] for sale. I am requesting that you make the premises available for inspection…. If you are not agreeable to permitting the inspection of the premises, please advise me so I do not waste my time driving to Gloucester…. I will be accompanied by the realtor Ginger Attaya and Attorney Orestes Brown when I visit as we would like to re-evaluate the marketability of the property at this time.

I understand your attorney has been quoted in the press as advising that you intend to appeal the dismissal of the litigation you filed seeking to vacate the judgment and revoke the execution. By this time I am sure you have the benefit of counsel’s advice as to the probability of success with respect to such appeal. I am suggesting that you clearly understand that the only possible benefit you could incur from appealing is trying to delay the inevitable and that there is no reasonable basis to appeal as the decision of the court is consistent with the law. If you are seeking to delay the sale of the property, I am willing to discuss with you the possibility of you making some additional payments on the outstanding execution in consideration of our agreement to defer action with respect to the sale of the real estate…. In light of the fact that you are in breach of the agreement, one remedy I have available to me is seeking an order that you vacate the house immediately and take possession of same. While I am not seeking to do that at this time, it remains an alternative that will be considered in the future.

In short, I am sending you this letter advising you that you need to talk to me about the present situation so we can reach some understanding or I will take further action at Gloucester District Court which I am sure will prove unpleasant to you. While I prefer to resolve this matter in a reasonable manner through negotiation with you and your attorney, I will deal with it however I have to, based on your response or lack thereof.

Very truly yours,

Frank J. Frisoli, Esq.

Update: On October 28, 2008, my attorney, Joseph Orlando, filed a Notice of Appeal of the order of the court dismissing my complaint against Misha Defonseca for fraud on the court. — Jane Daniel

Bestseller Available Now!

2008-10-15T08:52:00.000-07:00

Now Available from Amazon

Hello to those of you who have been following this blog since I started it last July, and welcome to any newcomers. It’s been a long time since I’ve written anything here, though there have been many related postings.

I began my blog by putting up chapters of a book I had begun, “Bestseller!” which was about a bestselling Holocaust memoire that my tiny publishing company had published. That “memoire” spawned a massive lawsuit and resulted in a $33 million verdict against me. When I began the blog, I explained that I was writing “Bestseller!” in real time and that I didn’t know how the story of my struggle would end.

Through an amazing twist of fate, I was contacted by a forensic genealogist who had read my blog. She was able to prove that the memoire was a massive literary fraud. I had hoped that the truth would allow me to overturn the $33 million judgment that was awarded to the perpetrator of the hoax and her co-author. For many months I had been feeling my way in the dark, but when the truth was revealed I had high hopes that I would, at last, find justice.

“Bestseller!” was ready to go to the printer when the story took yet another surprising turn. The complaint I filed to overturn the $33 million judgment (based on fraud on the court) was dismissed. I will now be filing an appeal. That will be my last chance to find justice. If the appeal fails, my eleven-year struggle will end in defeat. I will lose everything – including my home, which is also my livelihood (I run a B&B.)

At the last minute I added a postscript to the book that explains what my complaint was about and what happened. I am posting it here. The rest of the bizarre, fascinating, appalling account is in the book. It is a scathing indictment of our legal system.

I want to extend my appreciation to the kind souls, many total strangers, who have expressed their support. You, dear ones, have helped me through some very dark times.

- Jane Daniel

At the heart of justice is a divine spirit. It sprouts from the same seeds as life itself. And although we can define neither life nor justice, we are able to recognize injustice, the supreme form of which is to surrender to the status quo and to sanctify the myths and fantasies that breed it, among which is the national legend that in America there is liberty and justice for all. - Gerry Spence

BESTSELLER!
by Jane Daniel
ISBN #9780615237510
Trade Paperback • 302 pages
$19.95
Publication Date:
November 1, 2008
Pre-order for deliver as soon as the book is available.

CLICK TO BUY

Post Script: Does the Truth Matter?

Monday, October 13, 2008

I write this just as this book is going to press.

Following Misha’s confession, my new attorney, Joe Orlando, prepared a complaint to overturn the judgment against Mt Ivy and me. It was filed on April 8, 2008, almost six years to the day since the judgment entered. To overturn a judgment, the rules required that I go back to the same court that issued the judgment. For me it was returning to the scene of the injustice, hoping for a better outcome.

The issues we placed before the court went to the heart of the case: the effect of the hoax on the trial.

Mass. Rules of Civil Procedure, 60 (b) sets a time limit of one year for bringing an action to overturn a judgment on the basis of five causes, including a mistake, newly discovered evidence, fraud, etc. We were well beyond the time limit for causes (1) through (5). But at the end of the paragraph, there is 60(b)(6) which provides relief “where there is something more,” some kind of “extraordinary circumstances.” Fraud on the court, committed by an officer of the court, rises to this “extraordinary” level and has no statute of limitations.

A lawyer is an officer of the court. Misha was her own lawyer for almost a year, signing under pains and penalties of perjury the required pleadings. A pro se litigant is bound by the same obligations and constraints under Mass. Rules of Civil Procedure that apply to an attorney. Joe said the courts have overturned judgments for conduct far less egregious than Misha’s brazen fraud. “If this case doesn’t present an extraordinary circumstance, I can’t imagine what would!” he said.

One of the cases we relied on involved a matter of legal fees. An attorney representing himself in suing his client had, in a nutshell, pulled a fast one on his client to collect his fees. The court, in this case, found that the attorney’s conduct rose to the level of “something extra” such that it warranted a reversal of the judgment against the client.

Misha had stepped into the shoes of an attorney, we argued, thus becoming an officer of the court. In this capacity she had committed fraud on the court in holding herself out as a victim of the Holocaust, one of the most horrendous events in human history. The sympathy and credibility she gained from the judge and jury profoundly influenced the outcome of the case.

We had been sued for failing to fulfill the terms of the contract. However, we argued, the contract was void ab initio, invalid from the outset, because both Misha and Vera had warranted in their Publishing Agreements that “all statements of fact are true” and the story is “authentic,” a warrantee that they both violated. Had the court known at the time about the hoax, all of the accusations against us would have been examined through a completely different lens. In fact, without a contract, there never would have been a trial. The case would have been thrown out on summary judgment.

Frisoli, on behalf of Vera, and Misha (again representing herself) filed motions to dismiss my complaint. A hearing was scheduled for August 28, 2008 in Middlesex Superior Court. I notified the media. National Public Radio reported on the hearing; we listened to the broadcast as we drove to the courthouse. The Associated Press sent a reporter and a photographer. The Gloucester Times was there. There were others I didn’t recognize. Many supporters showed up including Sharon, Karen, Barbara and Ginny. Rosian and Susie got to the courthouse but were directed to the wrong courtroom.

When we entered the courtroom there was a press camera tripod in the corner and the benches were full. Ramona Hamblin was sitting beside Misha and Maurice in the front row. She would not be representing Misha, I knew, because the Board of Bar Overseers website listed her as “administratively suspended.” Misha had gained weight and Maurice sported a new mustache.

Judge Timothy Feeley took the bench. He had only received the papers on this case that morning, he told the lawyers, apologetically.

Joe spoke first. He presented his arguments in a low-key and measured tone. The case law supports our position, he said. Courts have overturned verdicts for far less egregious conduct than what occurred in this instance. Misha was an admitted liar. Her conduct in exploiting the suffering of the victims of the Holocaust for her own financial gain was a heinous act. The fraud permeated the trial. It was more than fraud; it was fraud on the court. Rule 60(b)(6) was designed to catch just such extraordinary miscarriages of justice as this.

Frisoli spoke next. He was wearing another of his matching outfits, this time a baby blue seersucker suit with a blue shirt and tie. In his usual hyper-excited manner, voice too loud, gesturing profusely, he explained that Misha hadn’t admitted that she lied; her story was simply historically inaccurate. Her “alleged” admission was like the repressed memory of a sexually abused child. And, in any case, the statute of limitations on fraud had long expired. He went through the usual litany of character assassinations I’d heard so many times before. I couldn’t bear to watch him; I fiddled with my rings in my lap while he spoke, “Foreign rights diverted …lies… money hidden from my client in an offshore account… Framingham jail….” He went on and on.

Then Misha read from a prepared statement, citing statutes and case law. Her statement appeared to have been written by a lawyer. In her broken English, she explained that she didn’t intend to defraud the court; she really believed her story.

The judge then asked several questions about whether the fact that the book was not a true story had any bearing on its marketability. Did it matter that the story wasn’t true? Frisoli said it didn’t. Joe replied that Misha’s aura convinced the court that everything she said was true.

Were there any expert witnesses? the judge wanted to know. Joe answered that there was never an independent auditor. We would welcome the opportunity to have an auditor examine the company’s finances if the judgment were to be overturned, he said.

And then it was over.

Outside the courthouse I gave interviews to several reporters. A TV crew from Providence shot footage that aired that night on New England Cable News. From the corner of my eye I saw Frisoli emerge through the glass doors of the courthouse and walk toward me as if to catch my eye. I turned away and he proceeded toward the entrance to the parking garage. When he had exited, I turned my head to be sure he was gone and, just as I did, he popped back through the door. Grinning a gloating smile, he raised one hand and wriggled his fingers at me. “Bye-bye, Jane,” he said in a sing-song, taunting voice.

Karen saw the gesture and moved to stand beside me. “He makes me sick,” she hissed. Sharon said to me later. “I wonder if the judge understands that the $33 million was the award based on Misha’s estimate of what the book should have been worth, plus punitive damages; it was not the book’s real earnings.”

The AP story went out on the wire and was picked up all over the world. It was obvious from the headlines that the reporters didn’t understand the money issue either. The gist of the story was the same; the headlines differed.

Author of Faked Holocaust Book Fights Publisher for Millions

Memoir faker fights publisher

Author of book hoax fights for profits

Author of hoax memoir asks judge to toss lawsuit

Author of faked Holocaust book fights for her millions

Fake book author wants profits

Author of faked Holocaust book fights for millions

Despite lies, US author of faked Holocaust book fights to keep $33 million

Author of faked Holocaust book fights for millions

The best headline came from the little Gloucester Daily Times:

Does the truth matter?

On October 9, 2008, Judge Timothy Feeley issued his ruling. Here are excerpts:

The court is not condoning or minimizing the fraud and misconduct alleged in the case. If true, the allegations in the complaint are, as claimed by the plaintiffs, deeply disturbing on a number of levels. The Holocaust tragedy is a subject that deserves respect from all, and no one should attempt to obtain personal gain from the unconscionable slaughter of millions. People should not profit from their own misconduct.

However, this is not an action against Defonseca for her misdeeds. This is an action by plaintiffs seeking relief from judgments entered by this court six years ago. The question is not whether relief from judgment might have been appropriate at some time; the only question is whether such relief is appropriate now.

I find nothing extraordinary about the allegations of fraud, misrepresentations and misconduct in this case. This case lacks the “something extra.” Plaintiffs argue that Defonseca’s role as a pro se litigant invested her with some kind of special obligation to the court and made her fraud, misrepresentations and misconduct particularly egregious. The court disagrees. The misconduct did not arise out of [her pro se] status, and the harm to plaintiffs was not aggravated by that status.

The substance of the book may have given flavor to the trial, but it was the conduct of the parties, and particularly the conduct of Daniel, that was the subject of the trial and the basis for the judgment in the case. Defonseca’s fraud, misrepresentations, and misconduct did not go to the heart of the case. It did not establish the basis for the jury’s and the court’s verdicts against the plaintiffs. Accordingly, this court finds nothing exceptional or extraordinary about the fraud, misrepresentations and misconduct in this case to justify the use of Rule 60(b)(6).

A ‘fraud on the court’ occurs ‘where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense. A party seeking to demonstrate fraud on the court must prove ‘the most egregious conduct involving a corruption of the judicial process itself.’

Defonseca’s fraud does not rise to the level of “fraud on the court.” Her misrepresentations and fraud did not prevent the court from providing plaintiffs a fair and impartial trial.

The Supreme Court stated that independent actions under Rule 60 (b)(6) “should only be available to prevent a grave miscarriage of justice.” Here the fraud is certainly of the sensational variety, and not to be condoned, but refusing plaintiff’s relief from a six-year judgment does not constitute a grave miscarriage of justice.

Whether Defonseca should profit from or be punished for her bad conduct is not the question for this court. The only question is whether Defonseca’s bad conduct should absolve plaintiffs from their own bad conduct six years after entry of judgment. It bears noting that it is not, as claimed by plaintiffs, Defonseca’s conduct that caused harm to plaintiffs. It was their own bad conduct that not only caused a jury to find against them across the board, but caused a Superior Court judge to fine their conduct so egregious that it warranted treble damages and attorney’s fees.

The motion to dismiss the claim was allowed.

“We’re filing an appeal,” Joe said.

To be continued ….

Pre-Order NOW!

2008-08-10T11:27:00.000-07:00

BESTSELLER!
by Jane Daniel
ISBN #9780615237510
Trade Paperback • 302 pages • $19.95
Publication Date: November 1, 2008
Pre-order for deliver as soon as the book is available. Order here or at Laughing Gull Press.

My Public Apology to Jane Daniel

2008-06-30T17:56:00.001-07:00

I have been troubled deeply, and riddled with anger, shame, guilt, and a myriad of emotions. Like many other unfortunate souls, I came under the spell and perceived charm of Misha Defonseca. I bought into the whole package, and even adopted as my own, her feelings and opinions about publisher Jane Daniel. My head is full of concocted stories, of jealousy and falsehoods.

Jane Daniel is a lovely, intelligent, professional woman who holds none of the titles or qualities, she was accused of wrong fully possessing. An unflattering picture was painted of her and I accepted this, as did many others. Jane spoke not one unkind word about Misha, and we became friends when we finally connected. The vitriolic and hateful language was most undeserving and she needs to know how badly I feel about the turn of events and my changed feelings.

No one should judge Jane the way I did. I realize now I made a terrible mistake. The stories about Jane are so very untrue, and I was so hugely premature in basing my opinions about her. I want every reader to know of my heartfelt apology. The greatest lesson I learned from all of this is to always keep an open mind and know that there are always two sides to every story. Judgement should not be made until all the information is on the table. Jane Daniel's credibility should be returned and never be questioned ever again

Sincerely,

Karen Schulman

Letter to Rabbi Earl Kideckel

2008-05-24T09:13:00.000-07:00

Rabbi Earl Kideckel 5/15/08

Temple Beth Torah

Holliston, MA

Dear Rabbi Kideckel,

Since we have not had the opportunity to speak together, I must make some assumptions in writing this letter. First, I assume that you know who I am. I was Misha Defonseca’s publisher, the one that she sued and against whom she won a massive judgment. I also assume that you are aware that Misha has admitted that her memoire was a hoax.

I am not sure whether you are familiar with a letter that was written by Naomi Aigner, president of Congregation Agudah Achim in December 1999 concerning that lawsuit and me. It is about that letter that I am writing you now.

I first saw the letter about a year before the trial. The woman who showed it to me was upset because she had extended enormous effort in support of Misha and she was shocked at being asked to give money as well. I, too, was shocked — by the contents of the letter and by the scathing, defamatory description of me. The letter contained many falsehoods including the statement that Misha was impoverished because of my publishing company and me.

At the time, Misha was not impoverished. I recently had subpoenaed her bank records and seen that she had almost a quarter of a million dollars passing through her accounts in the previous three years. Much of this money was as a direct result of my actions in enabling the publication of the French book. I am attaching the analysis of Misha’s finances in 1999 prepared by the genealogist who uncovered Misha’s fraud, so you can see for yourself.

Recently, other people have given me copies of that letter. I shudder to think how many people were sent the letter, how many others were shown the letter second-hand, how many more heard about it. I cringe at the thought that people believed such horrible things about me. Coming, as it did, under the letterhead of the temple, signed by the president of the temple, that letter undoubtedly has done inestimable damage to my reputation.

That said, I want to be perfectly clear that I do not blame Naomi Aigner, nor the temple, nor the rabbi, nor any of the Jewish people, nor anyone who passed the letter on. I know Misha, and how convincing she can be. I have seen how she turns people against each other and erects walls of fear and anger. I met a woman named Pat who gave Misha $2,000. Misha never told their mutual friend, Sharon, about the gift but instead said to Sharon that Pat had stolen $100 from her at a book signing. By turning people against each other and inciting distrust Misha kept people from talking and comparing notes about what they knew about her. That was one of the ways she maintained the hoax for two decades.

You may also know that I have engaged the services of an attorney and filed a complaint to overturn the judgment. What you may not know is that Misha was responsible for destroying my publishing company and my livelihood, stripping me of all my assets and ruining my reputation. Her attorneys sued my 86-year-old-father and seized my inheritance. They sued my daughter who still has a multimillion dollar lien on her home. I have spent the past ten years being mercilessly hounded by lawyers attempting to collect the $33 million judgment. It has been a living hell. And it’s still going on; just last week I got a threatening letter from Maurice.

I am writing to you today in the cause of truth and healing. I have no desire to extend the harm that Misha did to the Jewish people whom she so ruthlessly exploited. We all opened our hearts to her. We were all her victims. We are all traumatized. As a gesture of good will I want to tell you that, should you wish it, you may have an attorney of your choosing draft a Covenant Not to Sue in regard to that letter and I will sign it, no questions asked.

I would only request that those who were exploited by Misha to stand up and tell the world what happened to them — as a way of bearing witness, if you will. Right now we are all isolated in our own pain. I am hoping we can all join together and say, This is wrong. This is intolerable. This must stop. Now!

Without that effort, it will not stop. I have learned from two European journalists that Misha is working on another book. One of them said to me, “It will be more lies.” Misha and Maurice and their hoax machine are not going away unless people who know the truth decide that it’s time to call a halt to the deceit.

Karen Schulman has begun the process of gathering the truth. She has started a new blog:

http://silenceequalspermission.blogspot.com/

I hope that those who have been harmed by Misha and Maurice will speak out. The blog is one way to do that. Anyone wishing to post a message anonymously on the blog may do so.

Karen Schulman has offered to host a meeting between you, me, and possibly Sharon Sergeant at her home. Of course, you would be welcome to bring anyone else you think should be involved. I believe such a meeting would be one way to begin to pick up the pieces and move on.

Please let me know if you are agreeable to that.

Best wishes,

Jane Daniel

978 281-7732

A Report from Sharon Sergeant, forensic genealogist

2008-05-23T11:32:00.000-07:00

May 5, 2008: the Internal Revenue Service has placed a lien on the Dudley, MA home of Misha and Maurice Defonseca for $60,109.13 in unpaid taxes owed by Maurice Defonseca for the tax year 2005. (below)

This is just the latest in a long, long history of financial irregularities involving the Defonsecas. When the regrettable form letter (below) was sent from Congregation Agudah Achim in December of 1999, the mailing list included not only members of the Jewish community, but many others who believed Misha Defonseca’s fraudulent Holocaust story. It is clear that none of Misha’s supporters had any idea that Misha and Maurice Defonseca were hiding their assets and income, nor that the Defonsecas were soliciting money, goods and services based on knowingly fraudulent representations.

Using forensic genealogical methods and financial analysis, we have begun to compile a financial time line. The following sources were used to create this report:

Public records including deeds, foreclosure notices and recorded liens in the Registry of Deeds, Norfolk County, Massachusetts on the Defonsecas’ residence at 7 Bogastow Circle, Millis, MA, from 1985 to June 2001 [www.norfolkdeeds.org.]

Bankruptcy records for February 2001 through May 2001 for a Chapter 13 bankruptcy petition filed by Maurice Defonseca to eliminate unpaid debts, some stemming from the early 1990s, as well as more than $50,000 in unpaid personal loans from individuals [United States Bankruptcy Court, District of Massachusetts, Case number 01-40839 JBR.]

The Massachusetts Department of Revenue records indicate in the bankruptcy petition that the Defonsecas did not file tax returns or pay Massachusetts income taxes for at least a decade from 1990 through 2000 [United States Bankruptcy Court, District of Massachusetts, Case number 01-40839 JBR.] Based on an estimated $44,000 in back state taxes owing for this period, payment for which was a requirement of the bankruptcy plan, Maurice Defonseca’s bankruptcy petition was withdrawn.

Bank records for three of the Defonsecas’ Middlesex Savings Bank accounts for the period December 1996 through March 2001 produced through discovery in the lawsuit [MICV 1998-02-456] against Jane Daniel and Mt Ivy Press.

The Worcester County, Massachusetts Registry of Deeds masslandrecords.com/malr/index.htm for the Defonsecas’ residence at 70 Mason Road, Dudley, MA, purchased in November 2003.

The Middlesex Superior Court trial court held in its Findings of Fact (MICV 1998-02-456):

“The Defonsecas' three bank accounts reveal deposits between December 1996 and February 2000 of over $243,700.00. 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 Norfolk County Registry of Deeds records indicate that the Defonsecas’ Millis home was not foreclosed as they claimed, but actually sold for a profit in June of 2001. The Defonsecas were not suffering financial hardship at the time they sold their home, but were hiding cash and other assets, while soliciting money, goods and services.

This pattern of misrepresentation was also true in December 1999, when the Congregation Agudah Achim solicitation letter went out. The Defonsecas were portraying themselves as being in desperate financial circumstances. In fact, the $50,000 in personal loans shown in the 2001 bankruptcy filing are not included in the $243,700 income confirmed by the court for the period including 1997, 1998 and 1999. Despite around $300,000 of income during this roughly three-year period, the Defonseca’s attorneys, as well as veterinarians, therapists, and other service providers were persuaded to provide their services for free. Of the people who were solicited for cash, the 2001 bankruptcy petition indicates that the amounts actually procured by the Defonsecas included as much as $20,000 from just one person.

What we currently know about the fraudulent solicitations is as follows.

° The Defonsecas made a habit of withdrawing large sums of cash from their bank accounts. Misha Defonseca’s cash withdrawals, from just one Framingham bank account (Middlesex Savings Bank, primarily from account #223631634) in 1999 totaled $53,920.

° The pattern of fraudulent solicitation is exemplified by the fact that the Defonsecas withdrew $10,000 in cash in March 1999 – just two weeks before the March 24, 1999 Boston Globe Dances With Wolves (Archive fee) article by Stephen Bailey reported the following:

In a lawsuit, Defonseca has charged that tiny Mt Ivy Press, L.P. has withheld royalties and underreported sales. Defonseca says she and her husband, Maurice, are in danger of losing their Millis home and have been reduced to taking food from Jewish charities.

“I would like to see Jane Daniel and Brett Kates eating dog food, as we had to, while they were withholding at least $27,000 owed to me for several months, somewhere in a bank account in the West Indies,” Defonseca says.

° This particular instance illustrates the discrepancy between what the Defonsecas were saying publicly, what the facts were, and what they were actually doing. In addition to their misrepresentation that they were destitute, the other alleged facts were also false or misleading. Note that there is no mention in the article that there was a June 1998 motion by the attorney for Misha’s ghostwriter, Vera Lee, asking the court to hold in escrow Mt Ivy Press’ earnings, which included the royalty payments. The motion was granted and thus the royalties were suspended. Nor does the article explain that the French book revenue was direct-wired from Editions Robert Laffont into Misha Defonseca’s bank account. (Laffont never paid royalties to Mt Ivy Press.)

There are still other unanswered questions raised by the facts contained in public records.

° 1994 marked the beginning of unpaid debts showing up in liens against the Defonsecas’ Millis home. By 1997 Misha Defonseca’s cash withdrawals from the Middlesex Savings Bank accounts totaled $54,000 from more than $102,000 in deposits. 1998 cash withdrawals grew to more than $74,000 from another $102,000 in 1998 deposits. At least one payment of $6,600 from Mt Ivy Press for the Disney option did not show up in these deposits. Where did this money go?

Another poignant example of the Defonseca’s exploitation of the generosity of individuals is this: A one thousand dollar short-term loan was solicited by Maurice Defonseca in April of 1997 purportedly to use for a mortgage payment. It was documented by a promissory note signed by Maurice Defonseca agreeing to repayment in May 1997. It remained unpaid in 2001, according to the bankruptcy records – despite the fact that the Defonsecas’ bank statements showed more than $65,000 in deposits from January through April of 1997. Why hadn’t they repaid a man who loaned them $1,000 in April of 1997, when they had access to more than one hundred thousand dollars in both of the years 1997 and 1998? How many other people gave them money and were not repaid?

In fact, when the Defonsecas refinanced their Millis home mortgage in July of 1998, they only took a little over $1000 in cash from these Middlesex Bank accounts for the months of July through September of 1998. What were they living on for that three-month period in 1998? Where did it come from? Where was it being held? How many other sources of income and accounts did they have?

The 2001 bankruptcy file also lists nine other individuals who provided un-repaid personal loans to the Defonsecas for the following amounts:
$20,000.00
$16,000.00
$4,000.00
$2,800.00
$2,000.00
$1,200.00
$1,500.00
$1,000.00
$1,000.00.

Not only do the Defonseca’s Middlesex Savings Bank accounts indicate large deposits and cash withdrawals, the records also show that the Defonsecas made a habit of depositing only a tiny fraction of large checks, while taking the balance of the check in cash at the time of deposit. Thus one deposit is recorded as $12.50, but the check cashed was $2,512.50. $2,500 was taken in cash, while the bank statement indicates a deposit of only shows $12.50. The cash withdrawal total for just this one bank is incomplete.

When the Defonsecas sold their Millis home in June of 2001 for $325,000 - but claimed that they had lost it to foreclosure, they were given shelter, food, medicine, and other gifts at the home of a Milford woman who took them in believing that they were homeless and destitute. In reality, they had at least $90,000 in earned income for the year, and still continued to solicit aid from others.

By November of 2003, the Defonsecas had finally exhausted the emotional and financial resources of the compassionate woman who took them into her Milford home. She was forced to engage a lawyer to evict them from her home. They immediately purchased a new home in Dudley, MA for $190,000 plus two new cars with cash, and left more than $17,000 worth of damage at the home of the woman who had supported them for two and a half years.

During this period Misha approached a decorated Viet Nam vet whom she met years earlier at a speaking engagement in a prison where he incarcerated. She told him she was desperate and had lost her home to foreclosure. His 48 year-old wife was dying of cancer at the time. Misha knew that the vet was receiving a military pension. She told him, Your wife is dying and you are in prison so you don’t need the money. He sent her approximately $500 a month until the federal government suspended pension payments for all incarcerated veterans.

This analysis is preliminary and likely represents only the tip of the iceberg of fraudulent financial activity by the Defonsecas.

Article in Today's Jewish Advocate....

2008-05-16T10:05:00.000-07:00

Defonseca fallout still felt months after revelation of inauthenticity

Panel formed to discuss memoir hoax's aftermath

By Lorne Bell - Friday May 16 2008

When Dudley, Mass. resident Misha Defonseca admitted last February that her Holocaust memoir, “Misha: A Memoir of the Holocaust Years,” was a fake, Jews in Greater Boston and across Europe were shocked.

And although Defonseca’s book sold only 5,000 copies in the U.S., her elaborate deception continues to have far-reaching effects. Jane Daniel, the original publisher of Defonseca’s book, has recently joined Waltham-based genealogist Sharon Sergeant; historian and Holocaust author Susie Davidson; and local Holocaust survivor Rosian Zerner to discuss the book’s fallout as part of a series of panel discussions titled, “Deception and its Aftermath.”

“Misha mined the Jewish community and left behind her a wake of trauma,” said Daniel. “A lot of people are still in a state of shock, and feel wounded and betrayed. It is chutzpah beyond all measure.”
Defonseca’s fraudulence was revealed this winter, when Sergeant posted a response on Daniel’s Web log offering to help her uncover the author’s true past. Defonseca had already won a lawsuit against Daniel’s small publishing company, Mt. Ivy Press, in 2001, in which she claimed Daniel had withheld royalties and failed to adequately promote the book. Daniel has since filed a countersuit to overturn the court’s decision, based in part on the original contract’s presumption that Defonseca’s story was not a fictional account.
“I e-mailed Jane [Daniel] and said that I thought this case could be solved, that [Defonseca’s] identity could be verified,” said Sergeant.

Sergeant would soon reveal the truth behind the author’s fabricated story, disproving Defonseca’s claims that she had trekked across Europe as a wartime orphan, wandered in and out of the Warsaw Ghetto and taken refuge with a pack of wolves. Instead, Defonseca, whose real name was Monique De Wael, lived in Belgium with her uncle and grandfather during the war. And she is not Jewish.
“There’s so much in [the book] that’s convoluted and doesn’t have anything to do with reality,” said Sergeant. “She’s not who she said she was, and whatever her initial motivation, this became what I call a Misha Money Machine – it became a business.”

That “business” has wiped out Daniel’s own, after the 2001 ruling required Mt. Ivy Press to pay Defonseca and her French ghostwriter, Vera Lee, $32.4 million in damages.
“That’s how shnookered the court was,” Daniel said.

But the deception stretches far beyond the court and Mt. Ivy Press. After hearing that Defonseca and her husband’s Millis home was being foreclosed in 2001, Karen Schulman, a 62-year-old Jewish resident of Milford, took the couple and their 22 cats into her ranch home. “All I could think was that here is this woman who went through the Holocaust and now she is losing more – this time her home,” Schulman said. “Never in my life did I think that this was a scam.”

Defonseca and her husband, a high-level computer company executive, lived with Schulman for more than two years before she finally asked them to leave. Although she said the couple insisted on paying her $500 each month, they also reportedly purchased two new cars and, unbeknownst to Schulman, a new home in nearby Dudley. “I kept telling myself that she would not do this to me – look at what I have done for her,” said Schulman. “But she is a clever little fox. In my opinion, she needs to go to prison.”

Defonseca’s tale has also cast unfair doubts upon the credibility of true Holocaust survivors, according to Zerner. “It amazes me that there are still people who rationalize and sidestep the deception and essence of what she has done,” said Zerner. “She stole our identities as survivors. It is an offense beyond what is tolerable.”

Zerner’s own story closely resembles the fabricated past that Defonseca claimed in her book (although she never lived with wolves). As a child she was corralled into the Kovno Ghetto in Lithuania, and was shuffled from one hiding spot to another during the war. She said she hopes the panel discussion can help to alleviate concerns of other survivors and those who might doubt their stories.

Davidson, whose 2005 book, “I Refused to Die,” documents the lives of 20 survivors and concentration camp liberators, agreed. “Somebody said that to survive the Holocaust, your story had to be incredible and unbelievable,” said Davidson. “But [this incident] should not disauthenticate those experiences of true survivors whose stories are just as incredible and unimaginable and show the bravery, ingenuity and in many cases the shear luck that allowed these people to rise above the odds and survive.”

http://www.thejewishadvocate.com/this_weeks_issue/news/?content_id=4984

New panel explores widespread ramifications of recently-revealed Holocaust memoir hoax

2008-04-28T08:07:00.000-07:00

FOR IMMEDIATE RELEASE Contact: Susie Davidson
617-566-7557
Susie_d@yahoo.com

New panel explores widespread ramifications of recently-revealed Holocaust memoir hoax

In February, 2008, Misha Defonseca confessed that her bestselling autobiography, “Misha: A Memoire of the Holocaust Years,” published in 1997, was a hoax. Publisher Jane Daniel appears in a new speaking tour addressing the hoax, along with genealogist Sharon Sergeant, who compiled the evidence that led to Defonseca’s confession; oral historian and Holocaust author Susie Davidson (“I Refused to Die”); and Holocaust child survivor Rosian Zerner.

The panel will explore the following areas:
° What are the consequences when an impostor usurps Holocaust history and places real survivors in question?
° In the light of other recent fake memoirs, how can publishers be sure that what they publish is true?
° What effect does a fake Holocaust testimonial have on deniers of the Holocaust?
° How did Misha Defonseca sustain the hoax for ten years and how was it exposed?

An open discussion period will follow the presentation.

Full information follows.

For booking information, contact Susie Davidson at Susie_d@yahoo.com or 617-566-7557.

New panel explores widespread ramifications of recently-revealed Holocaust memoir hoax

In recognition of Yom HaShoah, I would like to bring to your attention a new program being offered in the Boston area. As you may be aware, recently a Massachusetts woman, Misha Defonseca, confessed that her internationally-bestselling autobiography, “Misha: A Memoire of the Holocaust Years,” was actually a hoax.

This new program, called “Deception and its Aftermath,” presents four women affected by the challenges that stem from this revelation, who discuss protecting the truth of the Holocaust from those who would usurp it.

Misha Defonseca began telling her fabricated story in 1989 when she spoke at a local synagogue on Yom HaShoah. Defonseca recounted that, as a seven-year-old child living in occupied Belgium, she set off on foot across the European theatre of war in search of her parents, who had been arrested by the Nazis. Twice during her travels, she said, she was befriended by wolves. It was all a lie. The truth is that she spent the war years at home with her Catholic family.

Nevertheless, for years Defonseca was warmly embraced by the local Jewish community. Those who were deceived by her story booked appearances for her, attended her speeches in schools and universities, and donated money. Such prominent figures as Elie Wiesel, the late Leonard Zakim, and Rabbi Albert Axelrod, then Chaplain of Brandeis University, contributed liner notes for her book.

The aftermath of her confession personally and profoundly impacts thousands in the Boston area who heard her speak and offered their support. Beyond that, this revelation affects those who gather stories of Holocaust survivors and Holocaust survivors themselves. There remain innumerable questions as to how such a monumental fraud could have occurred.

The panelists include:

Jane Daniel of Mt Ivy Press, the publisher whose original American edition of “Misha” was the basis of an international bestseller and a French feature film. Daniel herself painstakingly fact-checked the story line by line and employed other researchers, but in the end was also taken in. Defonseca sued Daniel, her U.S. publisher, in 1998, winning a $22 million judgment and the return of all rights to the story based on the finding that Mt Ivy had failed to sufficiently promote her book. Daniel has filed a lawsuit to overturn the judgment and posted chapters of her upcoming book on a blog.

Sharon Sergeant, the forensic genealogist who put together the team of researchers, who included real “hidden children” Holocaust survivors, that amassed the indisputable evidence leading to Defonseca’s confession. Sergeant’s work was made more challenging by the fact that Belgium has privacy laws that seal vital records for 100 years. As a member of the Massachusetts Genealogical Council Board of Directors, Sergeant advocates for open records to prevent fraud; in this instance, she employed a methodology that can be used by anyone doing historical research on their own family.

Susie Davidson, journalist for the Jewish Advocate and weeklies, poet, and author of "I Refused to Die: Stories of Boston-Area Holocaust Survivors and Soldiers who Liberated the Concentration Camps of World War II" and "Jewish Life in Postwar Germany." She speaks about and teaches courses on the Holocaust and global genocide with Dachau liberator Chan Rogers, and organizes genocide awareness events with the local Armenian and Rwandan communities. Davidson is a co-coordinator of the Boston chapter of COEJL, the Coalition on the Environment and Jewish Life, and a board member of the Boston-based activist umbrella organization Alliance for a Healthy Tomorrow.

Rosian Zerner, who survived the Holocaust in the Kovno Ghetto, Lithuania, and in hiding. She is the former Vice President of the World Federation of Jewish Child Survivors of the Holocaust, where she also served on the Advisory Board and as elected Secretary. She is the contact person for the Greater Boston Child Survivor group, where she serves as representative on the WFJCS Governing Board and as Liaison to “Generations After,” a group for descendants of survivors. She is the Jewish Community Relations Council representative from the American Association of Jewish Holocaust Survivors of Greater Boston, where she serves on the Executive Committee. She is on the Holocaust survivors' Advisory Board (Hakalah) at the Jewish Family and Children's Service, is a docent for the New England Holocaust Memorial, and is on the Yom Hashoah Planning Committee and the Board of American Friends of Mogen Dovid Adom. Zerner has been the keynote speaker at the annual Yom HaShoah commemoration at Faneuil Hall, speaks at universities, synagogues, senior centers, clubs and organizations, and is an advocate on behalf of survivors.

# # #

From the Providence Journal

2008-04-28T06:18:00.001-07:00

Boston author’s book a Holocaust hoax
01:00 AM EDT on Sunday, April 27, 2008

Misha Defonseca, in Millis, Mass.

The Providence Journal / RACHEL RITCHIE
On Holocaust Memorial Day this Thursday, there will be fewer eyewitness testimonies than the year before. Within the lifetimes of most people reading these words, there will be none. That is the work of time, and unalterable.

Each passing year brings greater and greater reliance on memoirs, therefore — written memories of atrocities, unspeakable crimes, incredible survival stories by those who experienced them. The vast majority are the sacred truth. But some, we are learning, are the work of frauds who would alter history for their own benefit.

The latest revelation came as a personal shock, because I had been an unwitting accomplice.

In 1997, in one of my first author profiles as books editor, I wrote about Misha Defonseca, of Millis, Mass., and her then-new book, Misha: A Memoire of the Holocaust Years. I had heard her speak before reading the book, and had fallen under the spell of her story.

As she told it, she was seven years old in 1941, living in Brussels, Belgium, when the Nazis came to her home and arrested her Jewish parents. Misha had been hustled off to live with another family, but instead she set off on foot, alone and with only a tiny compass to guide her way eastward, to find her parents.

“Thus began a terrible odyssey,” I wrote 11 years ago. “Wandering alone on her hopeless quest for four years, clear across occupied Europe, through Germany, into Russia and back again, Misha witnessed greater horrors than most soldiers experienced on the front lines.” She wrote of entering and then escaping from the Warsaw Ghetto; living for days in midwinter without food or shelter; stabbing a Nazi soldier to death; and, perhaps most incredibly, living with a pack of wolves.

It was a wonderful story, and in fact I wondered. It “strains credulity,” I wrote, adding: “Misha offers no proof. There is none, she says. Perhaps, she says, one of the nameless people she encountered in those years will see her book and remember, and get in touch with her. She hopes so.”

That brief caveat having been delivered, I turned back to the absorbing “facts” as Defonseca related them into my tape recorder there in the living room of her modest house outside Boston.

The book, produced on a shoestring by tiny Mt. Ivy Press, had modest sales here, despite a glowing endorsement from none other than Elie Wiesel, the Nobel Prize-winning Holocaust survivor and scholar. It achieved a new life in Europe, however, where it sold more than 30,000 copies in France and Italy, was translated into 18 languages, and turned into a film, Survivre Avec les Loups (Living With Wolves), which opened in Paris in January.

Suspicions were raised almost from the first, but Defonseca had covered her tracks well. Not until the film was released did experts on wolf behavior and the Holocaust in Belgium publicly question details. Meanwhile, a genealogist in Massachusetts, working with colleagues in Brussels, found the smoking-gun evidence about her parents that finally prompted Defonseca to confess.

It was all a lie, she told the Associated Press last month. Her real name, until she married her husband, Maurice Defonseca, was Monique De Wael. She was, indeed, orphaned when her parents, who were in the Belgian resistance, were put to death by the Nazis. But they were Catholic, not Jewish, and Defonseca was raised, uneventfully, by relatives, not wolves.

In a statement released through her lawyer, Defonseca said, “The story in the book is mine. It is not the actual reality — it was my reality, my way of surviving. At first I did not want to publish it, but then I was convinced by Jane Daniel.”

The story of her relationship with Daniel, who published the book more or less single-handedly, is nearly as depressing as her own fraudulent account.

The short version: Daniel was sued by the book’s ghostwriter, Vera Lee, for illegally withholding proceeds from the book’s sales from Lee and Defonseca. In 2002, she was found guilty. The judgment was for nearly $33 million.

Daniel, who reportedly published the book despite warnings from two experts who doubted its veracity, has been among the most ardent of the debunkers since the suit was filed against her. Now she has countersued, claiming the writers should get nothing because they breached the contract, which required them to be truthful. That suit is pending.

Meanwhile, thoughtful people inside and outside the Jewish community are responding with expressions ranging from outrage to sorrow.

“It is sad. It’s just very sad,” said Elie Wiesel, who heads the Elie Wiesel Center for Judaic Studies at Boston University. Reached by phone in New York last week, he told the Journal that the most important thing to note is that “very few” of the hundreds of Holocaust memoirs published in recent years have been hoaxes. But each one is a blow.

“In truth, I don’t recall reading it,” he said of Defonseca’s book, which he described as “very moving” when asked to endorse it in 1997.

“You see, when I speak with Holocaust survivors, I am always urging them to write, write, write. So whenever I receive a memoir, I am willing to say something about it. But it doesn’t mean I have read every page.”

Others have been more outspoken.

“What happened to the Jews was the worst atrocity in history, and people who exploit it for profit, by posing as Jews or lying about being part of the experience, insult those who went through it,” Lawrence L. Langer, an authority on Holocaust narratives at Simmons College, in Boston, told the Boston Globe. Langer identified himself as one of those experts who originally counseled Daniel not to publish Defonseca’s memoir. “It is as bad as saying the Holocaust never happened,” he concluded.

Which brings up the most damning aspect of the entire episode: the fact that Defonseca’s hoax is now being used as ammunition by those who would deny, or play down, the Holocaust for their own reasons.

Here’s what David Duke, former Grand Wizard of the Ku Klux Klan, had to say on his Web site:

“This case must cast doubt on many other ridiculously impossible Holocaust tales that have been sold as ‘true stories’ to a trusting public. The fact that the media would shamelessly promote a patently ridiculous story of a young girl trudging 5,000 kilometers through Europe with a pack of wolves shows the uncritical attitude of the media to all things ‘Holocaust.’ ”

I ended my story of 11 years ago with a quote from Defonseca. Little did I know then how ironic it would seem now.

She told her story, she said, because “bigotry and prejudice and hatred — they have not disappeared. And I do it for this reason.

“But I have not confidence in the human race. Not at all.”

driggs@projo.com

From National Law Journal...

2008-04-16T12:49:00.000-07:00

Page printed from: http://www.nlj.com

WEB-ONLY

Firm named in suit filed over controversial Holocaust book

Sheri Qualters / Staff reporter

April 15, 2008

BOSTON — A Massachusetts publisher has filed a new lawsuit in Middlesex Superior Court to fight a $33 million judgment that stemmed from a business dispute about a book written by a woman who claimed wolves befriended her during the Holocaust.

Jane Daniel of Gloucester, Mass. and her company Mt. Ivy Press sued the writer Monique De Wael, who is also known as Misha Defonseca and her ghostwriter Vera Lee. Defonseca and Lee are both Massachusetts residents.

Daniel also named the Boston law firm Edward Angell Palmer & Dodge on the lawsuit. Mt. Ivy Press v. DeWael, No. MICV2008-01432 (Middlesex Co., Mass., Super. Ct.)

In February, Defonseca's public statements that she fabricated some of the best-selling book led to widespread publicity. Daniel is asking the court to set aside judgment for the fraud and relief from the prior judgment.

Lee initially sued Daniel, Mt. Ivy Press and Defonseca for breach of contract, fraud and other claims and Daniel countersued. Lee v. Mt. Ivy Press, No. MICV1998-02456 (Middlesex Co., Mass., Super. Ct.).

In August 2001, a jury found that Mt. Ivy Press has breached its publishing agreement with Lee and Defonseca and had violated Massachusetts consumer protection laws in its business dealings with them.

The jury awarded damages of about $11 million to the plaintiffs, which the trial court later tripled to $33 million for the consumer protection violations. The court also gave Defonseca the dramatic, movie, television and radio rights.

Daniel appealed, and the Appeals Court of Massachusetts upheld the lower court's ruling and denied Daniel's motion for a new trial. Vera Lee v. Mt. Ivy Press, No. 2003-P-1496 (Mass. App. Ct.).

Lee's attorney Frank J. Frisoli Jr. of Frisoli & Frisoli in Cambridge, Mass. said Daniel pocketed the revenue from the book and didn't pay Defonseca or Lee.

"The judgment is because she stole money she cheated them out of the revenue from the work," Frisoli said.

Frisoli also said some of the statements in the new complaint are inconsistent with the facts disclosed at the trial.

"This issue was already litigated," Frisoli said. "This complaint has no merit."

Daniel's lawyer Joseph M. Orlando of Orlando & Associates in Gloucester, Mass. said the judgment awarded to Defonseca and Lee was "based on perjured testimony which resulted in a fraud on the court." Orlando also said that Defonseca and Lee signed contracts with Mt. Ivy Press declaring that Defonseca's story was truthful and accurate when it was not.

"That fact casts a shadow over every finding by the jury and the court, including those in regards to finances," Orlando said. "Once the judgment is vacated, auditors will have the opportunity to review all the financial issues to determine the truth."

In a statement, Edward Angell said it was named in the current and prior case only because its predecessor firm held funds in dispute among its former clients, Mt. Ivy Press, Defonseca and Lee. "Mt. Ivy Press is now seeking a declaration that it is entitled to client funds that the firm was directed in the earlier case to pay to Ms. Defonseca and Ms. Lee."

Press Release: Legal Action Follows Expose of Holocaust Fraud

2008-04-09T11:35:00.000-07:00

FOR IMMEDIATE RELEASE Email contact: Caroline Best

distribution.media@gmail.com

April 9, 2008

Publisher seeks to overturn $33 million judgment

The third act of a decade-long legal drama began on April 8 when publisher Jane Daniel filed a complaint to overturn the judgment against herself and her company, Mt Ivy Press, brought by Misha Defonseca and her ghost writer Vera Lee, over their book, MISHA A Memoire of the Holocaust Years. The trial ended in 2001 with an award to the plaintiffs of $11 million, which was trebled by the court to $33 million, then the second largest award in Massachusetts history.

"This case has been an unbelievable ordeal. My hope now is that I will be able to restore my good name," says Daniel. The new lawsuit follows the stunning confession by Defonseca on February 28, 2008 that her autobiographical account of walking 3,000 miles across the European theater of war, at the age of seven, searching for her deported Jewish parents, at times living with wolves, was completely fabricated. Her book, an international bestseller, has been translated into 18 languages and made into a French feature film, "Survival with Wolves," that premiered in Paris in January.

Although there were historians who questioned the authenticity of the story, the hoax went unchallenged for twenty years until an American genealogist, Sharon Sergeant, unearthed documents that proved Defonseca's real identity and showed that she had spent the war years in the home of her Catholic family.

Daniel's attorney, Joseph Orlando of Gloucester, MA says his client's case is unprecedented in his experience. "In the Complaint we allege that Defonseca perpetrated a fraud and a hoax based upon one of the great historical tragedies known to mankind, the Holocaust and that Defonseca's fraudulent autobiography diminishes and mocks the unimaginable suffering of millions of Jews ... at the hands of the Nazis."

In July of 2007, Daniel began writing a book based on her decade-long legal battles and posting chapters as a blog, BESTSELLERthebook.blogspot.com, with the request that anyone having information on the case contact her. Five months later, forensic genealogist Sharon Sergeant emailed her expressing her belief that she could solve the mystery. The clues were limited. In Defonseca's account she says she never knew her Jewish surname, her date and place of birth or any family names. The name she used, Monique DeWael, was a "false identity," she said, given to her by the Belgian "foster family" that hid her from the Nazis. In addition to the lack of personal information on Defonseca, Sergeant's efforts were hampered by Belgium's privacy laws that seal all vital records for 100 years.

Sergeant assembled a team that included real Jewish hidden children in the U.S. and Belgium who were the key to bringing the truth to light. "This work was very 'close to the bone' for them. It brought back excruciating memories of their own lost families," says Sergeant. "They obtained Defonseca's baptismal record and her first grade school registration that provided the central evidence needed to uncover the fraud."

When the documents appeared on Daniel's blog, they set off a firestorm across the Belgian and French media, with hour-by-hour new revelations of mounting proof that Defonseca's "memoire" was based on lies, including an interview with her 88-year-old cousin who recalled her as a child. After ten days of intense pressure, Defonseca released a statement in the leading daily newspaper, Le Soir, saying, "It is not the truth but it is my truth. I always felt Jewish."

The text of the entire complaint is online at: Complaint Against Misha Defonseca, et. al.

# # #

Complaint Filed In Middlesex Superior Court Against Misha Defonseca et. al.

2008-04-09T06:19:00.000-07:00

Yesterday a complaint was filed in Middlesex Superior Court on behalf of Jane Daniel and Mount Ivy press against Monique DeWael, a/k/a Misha Defonseca, Vera Lee, and Edwards, Angell, Palmer and Dodge. The complaint was filed by attorneys Joseph M. Orlando and Brian M. McCormick.

In part, the Complaint reads:

II. STATEMENT OF FACTS

6. In 1994, the plaintiff, Daniel, was working as a publisher/editor at Mt Ivy Press, LP, a small publishing company, founded by the plaintiff, the previous year.

7. In the course of the plaintiff's business, the plaintiff, Daniel, met the defendant, Defonseca.

8. When the plaintiff first met the defendant, Defonseca, Defonseca related that:

a. As a Jewish child, age 7, she was living in Belgium, when her parents were arrested by the Nazis in 1941;

b. She was placed in a foster home, and she was given a false identity, Monique DeWael, age four. Such identity was assumed for the purposes of protecting herself from the Nazis;

c. Defonseca was befriended by a man, who she referred to as "grandfather," whose name was Ernest DeWael, who gave her a tiny compass, and showed her a map of Europe;

d. When Ernest DeWael expressed to Defonseca concern that the Nazis would come for her, Defonseca set out on a journey "to the East" in search of her parents;

e. Over the next four years, Defonseca walked three thousand miles across the European theater of war, hiding in forests where twice she was befriended by wolves.

9. Defonseca further related to the plaintiff that she had been telling her story, and soliciting contributions from speaking engagements since approximately 1989-1990, and had been warmly embraced by the Jewish community in the Boston area and elsewhere.

10. Upon hearing the story, as related by the defendant, Defonseca, the plaintiff offered to publish Defonseca's autobiography (hereinafter, "the book").

11. Defonseca engaged a French-speaking writer, defendant, Vera Lee, to ghostwrite Defonseca's story, as Defonseca's command of the English language was weak.

12. Defonseca and Lee signed a collaboration agreement, intended to set forth the respective rights of the parties.

13. Both Defonseca and Lee signed publishing agreements with Mt Ivy Press, LP, in August of 1995.

14. Both publishing agreements contained the following warranty:

A. The Author represents and warrants to the Publisher that, with respect to the Work as submitted by Author, excluding revisions or additions by Publisher (i) the Work is not in the public domain; (ii) the Author and her collaborator are the sole and exclusive owners of the Work and have full power, free of any rights of any nature whatsoever in any one that mightinterfere therewith, to enter into this Agreement and to grant the rights hereby conveyed to the Publisher, (iii) the Work has not heretofore been published in whole or in part; (iv) the Work is original except for material in the public domain and such excerpts from other works as may be included with the written permission of the owners thereof; (v) the Work does not, and if published will not, infringe upon any proprietary right at common law; or any statutory copyright, or trade names, or patent, or trademark rights, or any other right whatsoever, (vi) the Work contains no matter whatsoever that is obscene, libelous, in violation of any right of privacy, or otherwise in contravention of law or the right of any third party; (vii) all statements of fact are true or based upon reasonable belief, except for facts and identities deliberately misstated to preserve confidentiality or for other valid reasons, provided the Author notifies the Publisher thereof (viii) the Work, if biographical or “as told to” the Author, is authentic, and (ix) the Author will not hereafter enter into any agreement or understanding with any person, firm, or corporation that might conflict with the rights herein granted to the Publisher.

15. Defonseca and Lee set to work to draft the manuscript. Over time, disagreements arose between Lee and Defonseca regarding the scheduling of time to work together on the manuscript.

16. During the same time frame, disputes began to arise between Lee, Daniel, and Defonseca, regarding the plaintiff's editorial dissatisfaction with respect to the form, substance, and delayed production time of the manuscript.

17. Defonseca's account of her experience could not be subjected to standard verification and process, due to the absence of certain critical information, including, but not limited to:

a. Defonseca reported that she did not know, and had never been told, her Jewish surname;

b. She had simply been called "Mischke," and never known her parents by any names other than "Gerusha,"(her mother, a Russian Jew), and "Reuven,"(her father, a German Jew);

c. Her parents were emigrees to Belgium;

d. She did not know her place of birth, but represented that she suspected it may have been Poland.

18. In the course of her research, the plaintiff, Daniel, learned that, at times, Jewish children of the Holocaust lost their identities when their parents were taken away.

19. Without the names, date, and place of birth of "Mischke," it was not possible for the plaintiff to check the personal aspects of the story.

20. To ready the manuscript for publication, the plaintiff attempted to undertake fact checking, including verifying historical and descriptive details, researching historical events, studying the flora and fauna of geographical locations and investigating behavior of wolves in the wild, etc.

21. The plaintiff also sent the manuscript to wolf experts, and to Jewish scholars and Holocaust experts for review.

22. Enthusiastic endorsements were returned from several luminaries, including the chaplain of Brandeis University, Rabbi Albert Axelrod, Noble Laureate and renowned Holocaust survivor, Eli Wiesel, Leonard Zakim, director of the New England region of the Anti-Defamation League, and the North American Wolf Foundation.

23. The American book was published in April 1997, under the title, Misha: A Memoir of the Holocaust Years. American edition, was followed shortly thereafter by a French version, published by Editions Lafont, under the title, Surivre avec les loups, (Survival with Wolves), the production of which was under the oversight of Defonseca exclusively. Neither Mt Ivy Press, nor Jane Daniel, had any input with respect to the French edition, other than to make several specific minor corrections request by Lafont. Other foreign editions followed.

24. Two significant changes were made in the Lafont editions, and subsequent editions controlled by Defonseca. Identifying photographs were removed, and the "false identity" of "Mischke" was changed from Monique DeWael, to Monique Valle.

25. In 1997, Lee initiated a suit against plaintiffs Daniel and Mt Ivy Press, and defendant, Defonseca, in Middlesex Superior Court, C.A. No. 98-2456, alleging, among other things, breach of contract.

26. From the inception of the underlying litigation in May 1998, until March 1999, Defonseca represented herself.

27. In the course of her self-representation, defendant, Defonseca, filed a counter-claim against Lee, affirmatively representing, among other things, breach of contract.

28. The counter-claim filed by Defonseca against Lee represented that Defonseca had complied with all of the terms of the collaboration agreement, including that the book was, "based on the author's life experience, accomplishments, and impact upon society."

To read the full text of the complaint, click here.

Press Release to follow.

Another Letter from a Reader

2008-03-27T13:51:00.000-07:00

Dear Jane,

My name is Karen Schulman. I am speaking out because I want to share my first-hand experiences with Misha Defonseca and her husband, Maurice.

Misha and her husband lived with me in my home in Milford, Massachusetts for two and a half years. I had heard Misha speak publicly about her amazing experiences during the Holocaust at Borders Bookstore and at a performance at Holliston High School of the play, The Diary of Ann Frank. I was very touched by her story.

I had worked in the department of nursing, telemetry and progressive care unit of Milford Regional Medical Center as a medical secretary and then at the CVS in Medway. One day a neighbor of the Defonsecas came in to fill a prescription. We struck up a conversation and the neighbor said, “Do you know what’s happened to them? They’re about to lose their house to foreclosure.” I was shocked. I phoned the Defonseca’s and Maurice answered the phone. He confirmed what I had been told and added that they had no money and didn’t know what to do. I offered to allow them the use of a wing in my large house consisting of four rooms and a bath until they could get on their feet again. They moved in on June 6, 2001, along with 24 cats and two dogs.

(left, damage to floor caused by cat urine and mold) I didn’t ask for any payment but Misha insisted on giving $500 a month. Misha never helped with any of the housework. They used my kitchen. Misha’s son and his future wife stayed at my house when they came for a visit. Misha wanted them to sleep in the backyard but I didn’t think it was appropriate in my neighborhood for them to camp out. They ended up sleeping on my dining room floor among all the boxes that belonged to Misha.

Maurice had a job in Hopkinton. I allowed him to use my car to drive to work and filled the tank for him. I also drove Misha on errands. I wined and dined them, took them out to dinner often and always paid the tab. At one time I accompanied Misha to Bloomingdales when she spent $250 to $300 on make-up. Once on a shopping trip I saw her hide things she had not paid for under her real purchases and take them from the store. I was so stunned that I questioned if I had actually seen it.

Delivery trucks arrived frequently delivering packages of goods Misha had ordered. I wondered how they could afford these things but assumed that Maurice was making good money in his job in an engineering company.

(left, a few of about a dozen litter boxes) Misha used to say “People are no good” and “Americans are stupid.” “Stupid Americans, stupid Americans,” she said it all the time. She said her son couldn’t qualify for higher education in Belgium where educational standards were high but he could get into a college in the US because the American schools had lower academic standards.

I have known many Holocaust survivors. Misha was very different! For one thing, she didn’t understand any of the Yiddish words I used. When I asked her why, she said her mother never taught her Yiddish. She said, “Hiltler took my first family away” and that’s why she needed so many animals. Misha had a bas mitzvah, I believe in Holliston, and learned to speak Hebrew and to chant from the Torah.

Eventually I got fed up. My friend Barbara Beattie, who also had been taken in by the Defonsecas, urged me to see a lawyer to get them out of my home. When I told them to leave they were angry. How could you do this to us, they demanded.

(left, cat urine damage to rugs) When they finally left, on November 30, 2003, I had $17,000 to $18,000 worth of damage to contend with. I had to have the hardwood floors taken up and replaced because they were saturated with cat urine. I had to remove the wallpaper and carpeting because of cat spray and have the whole area painted. I replaced whole windows that were broken. After they left I learned that they had not lost their home to foreclosure as they claimed, they sold it for $325,000. I learned they were not destitute either. In 2001 when I took them in Maurice earned $70,000 from his job (this figure was on a bankruptcy filing Maurice made.) From my house they moved to their new home in Dudley and paid cash for it, $190,000, plus two brand new cars.

In closing I would say that Misha and Maurice are very manipulative and deceitful. They know exactly how to get what they want from soft hearted people. I feel cheated, exploited, disrespected and abused.

Signed,

Karen Schulman

Letters from Readers....

2008-03-24T11:15:00.000-07:00

Readers may be interested in these letters that appeared about the Defonseca saga in the Globe:

http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2008/03/07/taken_in_by_a_holocaust_memoir/

Taken in by a Holocaust memoir
March 7, 2008

AS A chronicler of Holocaust memoirs, I read the saga of Misha Defonseca and publisher Jane Daniel with interest and more than a little apprehension ("Den of lies," Living/Arts, March 1).
It is indeed difficult if not impossible to even check on, let alone determine, the veracity of the stories of Holocaust survivors. Nazi records, if there is anything of relevance in them regarding individual survivors, are only just now beginning to come out, as in the case of the recently released Bad Arolsen archives. Often, one has little to rely on besides an occasional lucky link between available records and a traumatized, and perhaps somewhat compromised, elderly memory. Exaggeration, embellishment, and fabrication, which can and do exist in any interviewing, always end disastrously, as we see in this saga, which even drew in the likes of Elie Wiesel.

Thus, going into the collecting process with hope for monetary success is ambiguous at best and futile at worst. Yes, Daniel has expenses and business concerns. But in most cases, documenting the memoirs of others does not result in financial gain. Certainly with regard to atrocities such as the Holocaust, the preservation of memories holds other rich rewards for both the teller and the scribe, but most authors know to keep their day jobs.

SUSIE DAVIDSON
Brookline
The writer, a journalist for the Jewish Advocate, is the author of "I Refused to Die: Stories of Boston-Area Holocaust Survivors and Soldiers who Liberated the Concentration Camps of World War II" and "Jewish Life in Postwar Germany"
http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2008/03/18/misguided_view_on_veracity_of_holocaust_memories/

__________________________________________________________

Misguided view on veracity of Holocaust memories
March 18, 2008
SUSIE DAVIDSON'S assertion that it is is misguided and should not remain unchallenged ("Taken in by a Holocaust memoir," Letters, March 7). It is also not true that Nazi records "are only just now beginning to come out." Archives have been available in Germany and elsewhere for decades to validate the roundups and deportation of Jews from particular communities in Europe.
Expecting witnesses who tell of their ordeals on transports and in camps to offer proof that they were in a particular ghetto or camp is like Swiss bank officials demanding that children of survivors whose parents had been gassed furnish copies of the death certificates.
But most disturbing is Davidson's claim that, when interviewing Holocaust survivors, about all we have to rely on is "a traumatized, and perhaps somewhat compromised, elderly memory." As someone who has spent more than a decade interviewing Holocaust survivors, I have found the exact reverse to be true.
Misha Defonseca's book is so full of confirmable historical errors that on that basis alone it was possible for informed readers to recognize that her narrative could not be true.

LAWRENCE L. LANGER,
West Newton
The writer is the author of "Holocaust Testimonies: The Ruins of Memory."

_______________________________________________________________

Statements regarding verification of Holocaust stories still ring true

I stand by my assertions that were taken to task by Lawrence Langer ("Misguided view on veracity of Holocaust memories," Letters, March 18). My statement that Langer quoted, "it is difficult if not impossible to even check on, let alone determine, the veracity of the stories of Holocaust survivors," concerns, as it states, survivors' actual stories, rather than the Nazi deportation archives Langer mentions (which I have seen, some in actuality, in Germany).
Langer analogizes my statements on lack of supporting documentation to my asking the survivors I have interviewed to furnish proof. I have never done such a thing; to the contrary, over the past several years, I have organized public events, always sold my books at cost, charged no speaker fee though I invited and paid other supporting speakers, and, most importantly, publicly read these stories in forums ranging from the Boston Public Library to myriad bookstores, classrooms, synagogues, senior and veterans' centers in an effort to spread awareness of the bravery of these people during the terrible times they lived through.
Yes, I have taken these dear souls at their word. That does not mean I believe that every word is inscribed, and I'm sure the survivors wouldn't either. No memory is perfect. Trauma is affecting. Although I have done my best to verify what survivors in my books have told me, feel that the stories are true, like Langer am highly impressed at their ability to recount their tales, and wholly believe in their sincerity and honesty, I am not afraid to state that I would never take credit for 100 percent, iron-clad verifiability.

SUSIE DAVIDSON
Brookline

_______________________________________________________________

To: letter@globe.com
Subject: Records, as well as memory, can indeed be fallible
Date: Tue, 18 Mar 2008 18:37:07 +0000

I beg to differ with Lawrence Langer. First, I have a hard time believing that Nazi records released thus far have been all that forthcoming, let alone totally forthright. Second, the sheer breadth of fallout from the deception of Misha DeFonseca alone speaks for the need to be as careful as Susie Davidson has been in her books.
I recently saw a local public television show try to deal with having had a World War II soldier on the preview hour to Ken Burns' documentary "The War", telling tall tales about his bravery that were soon unveiled as fabrication. This and DeFonseca's book have certainly not been the only instances of unintentional publication and broadcasting of fraudulent or incorrect memoirs in the media, because, as Davidson said, memory, as well as recordkeeping, are not always correct.
As the nephew and namesake of one of the navigators of the Exodus 1947, whose own story few would believe if it weren't true, I appreciate writers like Davidson who make the effort to verify, admit they can be fallible, and do their work for no personal gain.

FRANK LEVINE
Malden

__________________________________________________________________

I REPRESENTED Misha Defonseca in litigation against Jane Daniel. I worked closely with Defonseca for more than six years. I learned that her memoir was a fabrication when her statement was published in the Globe.
The article cites Lawrence L. Langer as expressing outrage that anyone could exploit the Holocaust for profit. Langer, an authority on the subject, goes so far as to compare them to Holocaust deniers. I think this is an unfortunate overstatement.
The irony is that Defonseca's real story seems to be even more compelling than the fabrication. According to the researcher who uncovered the truth, her parents were Catholic members of the Belgian resistance who were captured and killed by Nazis. It is one thing to belong to a group targeted for oppression or genocide and something quite different to choose to align yourself with such a group and share its fate. Whatever our beliefs about our own integrity or moral fiber, there are few among us who would make that choice once we have assumed the obligations of parenthood.
Defonseca's parents were among this rarest sort of human. Their daughter paid a horrible price for that choice. (Note: Ms. Hamblin is incorrect about this. According to the article written by Marc Metdapenningen and published in Le Soir, Defonseca's father was a traitor and Gestapo collaborator who died a natural death.)

RAMONA HAMBLIN
Newton

___________________________________________________________

WE AT Wolf Hollow were saddened by the revelation that Misha Defonseca's incredible memoir was an elaborate hoax. Upon meeting her in 1996, we were awed by her story. We were aware of many documented cases of children raised by animals, including chimpanzees, apes, and indeed wolves. Wolves live in packs that mirror our own human families, and are considered the most socially complex nonprimate mammal. In our talks with Defonseca, she demonstrated an intimate knowledge of wolf behavior. Who would not want to believe such a heartwarming story in the midst of one of mankind's darkest times?
We became close friends with Defonseca, subsequently holding book signings and hosting a film crew from "The Oprah Winfrey Show." We spoke of her when visitors to Wolf Hollow would ask of the validity of tales of wolf-raised children, and even named a wolf puppy Misha. Readers can imagine how shocked we are now.
For someone to feel the need to create such a story in lieu of reality is the truly sad story. Despite the deception, the Misha that we knew is a warm woman and an advocate for animals, and we trust that that much is still true.

ZEE SOFFRON
Assistant director Wolf Hollow
Ipswich

________________________________________________________________
AFTER READING this story, I was speechless. I have known Misha Defonseca since 1988, when she and her family moved to Millis, and we became close friends. I truly believed her story, and supported her efforts in writing her memoirs.
One speech she gave stands out in my mind, a night at Brandeis. Several hundred students, faculty, friends, and true Holocaust survivors gathered to hear her story, and many tears were shed as the story unfolded. Holocaust survivors in attendance that evening called out the names of the death camps they were in, and a moment of silence was observed. This experience will live in my memory forever.
I feel so betrayed, yet my heart is broken for the true Holocaust survivors she used to promote her lies. When her book was published, I felt honored that she put my name in it, and now I am ashamed. I want no association with the lies.

PATRICIA CUNNINGHAM
Millis

March 23, 2008 4:47 PM

Genealogist Sharon Sergeant on Her Process

2008-03-20T13:47:00.000-07:00

Sharon Sergeant has released the preliminary case study provided to her
research team on January 5, 2008 leading to the February exposure of
Misha Defonseca's true identity and confession in Belgium.

Sergeant says

"For more than a decade, historians had focussed on the implausibility
of the Defonseca popular allegory. We took a page from Pulitizer Prize
historian David Hackett Fischer's early work 'Historians' Fallacies' for
the process of Inquiry, Explanation and Argument and applied it to the
entire body of work created as a result of Defonseca's storytelling: her
public appearances and interviews, various book versions and the many
lawsuits.

We found many problems with previous inquiries. Question framing,
factual verification and significance were definitely lacking.
Explanations were generalized and narrations were all tainted by the
basic inquiry. Cause and effect, motivations, composition of the
information and analogies were all over the board.

Highly charged emotional issues were given undue proportion, distracting
the inquiries from actually testing theories against the facts.

We were thus able to frame the inquiry in the search for the factual
evidence trail by asking "What is wrong with this picture?"

I presented these findings to my team on January 5, 2008.
http://www.generalvoice.com/

Sergeant will also present how her team used this preliminary analysis
to find the proof trail for Misha Defonseca's true identity at the
Massachusetts Genealogical Seminar on April 26th at Bentley College in
Waltham, MA.
http://www.massgencouncil.com/

Thanks and Explanations from Jane Daniel

2008-03-09T11:06:00.000-07:00

Publisher, Mt Ivy Press

I’d like thank the thousands of readers of this blog for taking the time to examine the words I have written and the documents I have posted here. Visitors have come from all over the world, from Japan to Australia to Denmark to Thailand and a score of other countries, and many more from Belgium, France and the U.S., and they just keep pouring in.

As many of you know, over the last several days a firestorm has erupted over the confession by Misha Defonseca that her book, MISHA A Memoire of the Holocaust Years, was a hoax. Originally published in the U.S. by my company, Mt Ivy Press, and later to become an international bestseller and the subject of a French movie, the hoax has survived for an astounding two decades.

In the past week, I have been interviewed by the media and contacted informally by people asking for explanations. Several issues in particular get raised over and over, so I’d like to respond to a couple of them here.

The first question goes like this: Why did you publish the book when you knew it was not, or might not be, true? Did you do it because you “smelled the money”?

The second question also revolves around the subject of money, and it goes: When you and your company were sued, the court found that Mt Ivy had hidden money in an offshore account and failed to pay Misha and her ghostwriter, Vera Lee, their royalties. What do you say to that?

The two get lumped together into this notion: Irrespective of what we now know about Misha’s wrongdoing, based on the court’s findings, the publisher must also have done something bad to get hit with a $33 million judgment. In other words, where there’s smoke there’s fire.

I’ll begin with the first question, Why publish when the story might be fake?

Historically, publishers rely on the author’s warranty that all statements of fact are true (see warranty clause from Mt Ivy Press’ publishing agreement on this blog) and by custom there has been little or no obligation on the part of the publisher to vet the manuscript, other than superficially, before publication. There is a good reason for this convention. A publisher may decide to print a book entitled “I Was a Space Alien’s Love Slave”, without a disclaimer as to the tale’s authenticity. Or the book may be more serious, such as “I Was Illegally Targeted by the C.I.A.”, a topic that may be impossible to authenticate if matters of national security are involved.

The publisher tosses a book out into the marketplace and the public is entrusted with the freedom to decide whether to buy it, or to read it, or whether or not to believe it. The system represents the ultimate power to the people and, given the rash of fake autobiographies (such as the whopper told by Margaret “Jones”, published by Penguin) that have recently been exposed, the arrangement works well.

Now, let’s consider the Misha book. According to Slate Magazine, Misha Defonseca had been polishing her invented persona since as early as 1989. At the time I met her in 1994 she had been warmly embraced by the local Jewish community and I, like millions of others to follow, fell under her spell.

Contrary to some people’s assumptions, I did do extensive research in preparing the manuscript for publication as I have earlier recounted on this blog. But, remember, I had no personal information to go on. I had no name, no date or place of birth, no names of anyone who knew the woman who said she had been given a “false” identity when her parents were arrested by the Nazis in 1941. Everyone said there was no way to verify this story. Should that have been a red flag? Not necessarily. My research showed that children who lost their families in war not infrequently lost their identities as well. What if Misha's story of being a "lost child" had been true? Few would suggest that she should have been barred from telling it in print because it could not be verified.

In adopting the persona of an innocent Jewish child, one of the Holocaust’s most heartbreaking victims, Misha had devised a nearly perfect disguise. In her new role as Holocaust survivor, she wrapped herself in a Teflon mantle of moral superiority that few dared to challenge lest they be accused of being anti-Semitic.

How do we know this? Because in Belgium, several who publicly spoke out against her were accused of just that. Serge Aroles, a Belgian surgeon, has divulged that he was so labeled for questioning her account of living with wolves. Le Meuse reported that one of Misha’s childhood friends who tried to alert the media that the story was false was told that she was “jealous” and that she was “playing with fire” for “mocking another person’s misery.” In this country, in more than a decade, only two American journalists publicly questioned Misha’s truthfulness, but neither offered a scrap of concrete evidence to support their views.

In fact, there is a new post on this blog from Marc Metdepenningen, the Belgian journalist who broke the story in Le Soir that Misha’s father, Robert DeWael, was a known traitor to the resistance who sold out his comrades to the Gestapo. This reporter has been subjected to a wave of public hostility, challenging his research and motives, which on March 9 led Le Soir to publish the damning documents that his research unearthed. (See link to Le Soir article on this blog.)

As to why a publisher chooses to publish one particular book or another — of course, we do it based on the expectation that we will make a profit on our choices. A publisher is in business to make money; a publisher is not the gatekeeper of the truth. Does anyone really want to suggest that publishers should decide for us what we should read and what we should believe? The founding fathers placed a high social value on freedom of the press. In light of recent developments, their confidence in the fourth estate appears to have been well founded.

The second question boils down to, “Given the $33 million judgment against them, what did Jane Daniel and Mt Ivy Press do to warrant such an outcome?

The answer is already on this blog. For those of you who have read the entire story so far, that IS what Mt Ivy Press and I DID in the creation of this book, told from the agreed-upon exhibits from the trial. The real question is “What happened AT THE TRIAL to bring about that result?” That’s a long story, enough to fill a book. I will get to it all in due time. The chapters I've posted here end with Mt Ivy's attempts to get Misha to cooperate in appearing on the Oprah show. Here's a hint: There is enough information out there now for readers to figure out why she refused to do Oprah and how this ties in with the hoax.

This much I will tell you now. There was not one penny of money earned by Mt Ivy Press that was not accounted for. Misha herself, and Vera Lee’s lawyer, Frank Frisoli, have made much over the fact that the authors never received royalties. Here is how that happened. When Frank Frisoli, on behalf of his client, Vera Lee, filed a suit against Mt Ivy Press, the complaint included Mt Ivy’s U.S. distributor, Publishers Group West (PGW), and Mt Ivy’s literary agent, Palmer & Dodge, as “reach and apply” defendants. The term reach and apply indicates that these parties were holding money on behalf of Mt Ivy that the plaintiff wanted to claim.

In fact, virtually all of Mt Ivy’s income came through these two sources: book sales in U.S. bookstores from PGW, sales of foreign and subsidiary rights from Palmer & Dodge. Immediately after they were named in the suit, both PGW and Palmer & Dodge dropped their representation of Mt Ivy. Thus, just a year after publication of the book, all of Mt Ivy’s future income was instantly curtailed.

That left whatever was in the pipeline from sales that had already occurred. Mr. Frisoli then filed a motion with the court to have Mt Ivy’s income paid into the court. The motion was granted. But the effect was that the royalties that might have been due Defonseca and Lee were now frozen as well. Both authors filed motions to order Mt Ivy to pay their royalties — which the court denied. So, in fact, the reason they received no royalties was a direct result of actions taken by Vera Lee’s attorney, Frank Frisoli. (The legal proceedings I’ve described here can be found on the docket sheet, MICV 1998-02456, Middlesex Superior Court.)

As for the offshore account, you can read about that in the chapters I’ve already posted here. To summarize: All earnings from the book, including those held in the offshore account, were not only NOT hidden, they were reported in the royalty reports prepared for the authors by Mt Ivy Press in accordance with the publishing agreement.

There was money already in the offshore account when the court order freezing Mt Ivy’s earnings went into effect, but the court refused to order Mt Ivy to pay royalties to Defonseca and Lee. That offshore money ultimately went to pay legal fees. Mt Ivy had no profits whatsoever from this book. Frank Frisoli himself acknowledged at trial that I never took a salary. In fact, I never made a penny. On the contrary, I loaned tens of thousands of dollars to the company to pay legal fees, $17,000 of which I never recovered. My lawyer, Molly Sherden, walked me through all the money issues on the witness stand. In his opening statement Mr. Frisoli advised the jury to “follow the money.” In his closing statement, he dropped this advice.

Offshore entities, by the way, are completely legal and are often used for tax purposes by companies doing business internationally. Like a personal retirement account with taxes deferred until you access the money, a company pays taxes on offshore earnings only when they are brought into the U.S. As for money being “hidden”, no author is entitled to know what bank the publisher keeps its money in. Authors are only entitled to know how much of that money is due them. That’s what appeared in Mt Ivy’s royalty reports.

So how DID the huge judgment come about?

Misha fooled the whole world for twenty years. She needed to fool only twelve jurors and one judge for ten days at trial. A Holocaust survivor has the stature of a secular saint in the public eye, on a par with Mother Theresa. In representing herself as a Jewish Holocaust survivor in court she committed perjury. Misha testified that she was cheated by Mt Ivy, and Vera Lee did the same. In effect, they corroborated each others’ version of the money, as well as other counts in the complaint.

I have heard people say, "Well, the appeals court upheld the judgment so that must mean something fishy happened." That view reflects a misunderstanding of the appeal process. In fact, an appeal is not a process for re-examination of the evidence presented at trial. The basis for an appeal is judicial error only, e.g. Did the trial judge follow the proper procedures and apply the relevant laws correctly? In other words, an appeal is about the trial judge, not the litigants. A trial may have an unjust outcome even when a judge follows all the rules to the letter. The basis for the appeal I filed was narrow and technical: subject matter jurisdiction. My appeal alleged that the judge in state court allowed into the trial matters of copyright law that were the exclusive jurisdiction of federal court.

I have consistently maintained that the evidence did not support the judgment. How can any of the findings from this trial be free from the taint of what we now know is a massive and deliberate fraud? Sunlight is the best disinfectant, admonished Justice Brandeis. There is more to this story than what has come out so far. When all the facts are known, it will become clear that Mt Ivy Press and I did nothing, NOTHING, wrong. “Where there’s smoke, there’s fire” cuts both ways. Misha threw up a massive smoke screen for two decades, engulfing the trial and the aftermath. Justice was consumed in a blaze of lies.

An interviewer asked me how I felt toward Misha now that she has been exposed. I answered with an expression told to me by one of the investigators in Belgium who helped uncover the evidence: “The day you met Misha was the day you should have fallen and broken your leg when you got out of bed.” I deeply regret whatever part my publishing company and I played, albeit unknowingly, in facilitating Misha’s fraud. It is most unfortunate when an iconic figure abuses the public trust. Truth also has a very high social value.

Two More Articles of Note

2008-03-08T11:28:00.001-08:00

The Daily News Tribune published an article today that is now posted in the links at left. The author, Barbara Taormina clearly understands what is at issue in this case and took the time to research both sides of the story. It is available at: Bad moon rising: The truth behind a Holocaust hoax

Belgian journalist Marc Metdepenningen wrote the article about Misha Defonseca's father Robert DeWael being discovered to be a traitor during the war. The article published in Le Soir came under heavy criticism by people posting comments. Consequently Metdepenningen has published a well researched and fully documented article about the facts of Robert DeWael who was both a traitor and a Gestapo collaborator whose actions caused the death of a good many people. Metdepennigen has now become a lightning rod for the wrath of those who wish to keep Misha Defonseca as an icon.

The current article, written in French, is now online at Misha Defonseca: Surviving with his true past. By using online translation tools such as Google Translate or Alta Vista's Babelfish it is possible to read a rough translation of the article if you do not read French. A partial translation begins:

Her father... was recognized as a traitor by Belgian courts. Robert De Wael voluntarily collaborated with the Gestapo. He wanted to become Waffen SS and serve on the Eastern front. Ten-resistant Grenadiers died as a result of his betrayal. At the end of the war, his survivors wanted to change the name of his daughter Monique to avoid the stigma.

The literary and cinematic trickery committed by Misha Defonseca who claimed in her autobiographical book "Surviving with the Wolves ", that she was a Jewish girl of 7 years who traveled in 1941 though the forests of Eastern Europe in search of her deported parents, also refers to a page in the history of the little-known Belgian Resistance. This page, written in black and white, tells the story of Monique De Wael, aka Misha, and contains within it the reasons that have caused her, knowingly or unknowingly, to invent an imaginary past with no credibility.

Many readers have leveled insults against "Le Soir" and myself , implying that our revelations were either a creation of the "Jewish lobby", or of other sickening motives. But few have taken the time to read what the real fate of De Wael was. This story is not imaginary.

Our investigation has benefited from research undertaken two years ago on the "Grouping Grenadiers" by the writer and editor Jean-Philippe Tondeur (1), who before the outbreak of the controversy about Misha Defonseca, intended, through the history of this group of courageous resistance fighters to show his children and the younger generations the value "of a commitment such as we could not imagine today." May he be thanked.

Our investigation also relies on the account of the surviving witnesses that we found and archival documents that we obtained.

The supporting documentation can be seen by clicking on the IN EXTENSO links to the right of the article.

We thank M. Metdepennigen for his continued commitment to publishing the truth behind this on-going investigation.

Jane Daniel on NPR's Here and Now

2008-03-06T06:34:00.001-08:00

On March 4, 2008, Jane Daniel was featured on NPR's Here and Now program talking about the Misha Defonseca hoax. You can listen to the program by clicking here. (Real Player or other audio player required.)

Belgian Newspaper Reports Allegedly True Story of Misha's Father

2008-03-03T06:23:00.000-08:00

Update: There has been much objection to the article that appeared in Le Soir on the part of readers who felt it was unfair... consequently in fairness we are adding the disclaimer that the story, as reported in Le Soir, may be unfairly biased or not properly researched. If Le Soir retracts or modifies their reporting we will post accordingly.

The Belgian newspaper Le Soir reported yesterday that Misha Defonseca's father was a traitor, not a Jewish victim of the Holocaust. Based on interviews with Misha's 88-year old cousin Emma De Wael and a former coworker 98-year old Robert Van den Haute, the story was written by Marc Metdepenningen and is available in French at Le sombre pasee du pere de Misha.

Misha's Contract

2008-03-02T14:07:00.000-08:00

In 1994, the year I met Misha Defonseca , she had been telling her Holocaust "story"
for several years, according to Slate Magazine, and had been warmly embraced
by the local Jewish community. When I heard her speak at a college event in New York City,
I, too, believed her.


Every standard publishing agreement has a clause containing the 
Author's Representations and Warranties. Under this boilerplate language,
an author promises certain things to the publisher. Misha Defonseca and her ghost
writer, Vera Lee, each signed a publishing agreement with their publisher, Mt Ivy
Press, in which they warranted that all statements of fact in the manuscript were
"true" and "authentic". Here is that clause in the contract (click to enlarge).