Zilg v. Prentice-Hall, Inc.

717 F.2d 671 (2d Cir. 1983).

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Nature of the Case

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Facts

P is the author of DuPont: Behind the Nylon Curtain. P made a deal with D to publish the book. D was to publish the book at its own expense. D retained complete control over every aspect of the book's publication including the number of copies to print, advertising as well as pricing and marketing. The book was submitted, and D decided on a first printing of 15,000 copies at a retail price of $12.95 per copy. The advertising budget was $15,000. The book is a harshly critical portrait of the DuPont family and their role in American social, political and economic history. The reactions of readers and reviewers was polarizing. One judge at the Book of the Month Club (BMOC) described it as '300,000 words of pure spite.' On the other hand, the book has a loyal band of admirers. It received a favorable review in many newspapers, including the New York Times Book Review section. Its comprehensiveness and the extensive research on which it was based were frequently noted. It presented a Marxist view of history. Also, weighing against its overall marketability were its size (586 pages of text, 2 inches thick, three and one-half pounds), complexity (almost 200 family members with the surname DuPont and 170 years of American history) and price ($12.95 in 1974 dollars). A member of the DuPont family obtained an advance copy of the manuscript from a bookseller and, predictably outraged, turned it over to the Public Affairs Department of the DuPont Company (D1). They immediately began to lobby D's management on a personal level. D1 learned that the book had been accepted as a Fortune Book Club selection and decided to act before publication anyway. D1 postured that the book was 'scurrilous' and 'actionable.' Based on the negative responses by D1 and the DuPont family, BOMC took another look at their recommendation of the book and decided it was an unsuitable selection for the Fortune Book Club. BOMC claims that this decision was an inevitable result of reading the book. BOMC immediately notified D of its decision not to distribute the book. The reason given was BOMC's belief that the book was malicious and had an objectionable tone. D began to get cold feet when it started to relook at the book and found mistakes of fact and libelous irrelevant matters were also discovered. D began correcting and toning down the book. It also cut its first printing from 15,000 copies to 10,000, stating that 5,000 copies were no longer needed for BOMC. The proposed advertising budget was also slashed from $15,000 to $5,500. P sued for a breach of contract because D failed to use its best efforts. The trial court found for P and awarded him $24,250 in damages. The court found that D breached an implied duty to use its best efforts in the book’s promotion. The court held that D breached its obligation of good faith in handling the book because it had no 'sound' or 'valid' business reason for reducing the first printing by 5,000 volumes and the advertising budget by $9,500, which allowed the book to go briefly out of stock (although wholesalers had ample copies) just as it gained sales momentum. The judge expressly found that since BOMC did its own printing of club selections, the first printing cut could not be attributed to the cancellation of the BOMC order. He also found that the book would have sold 25,000 copies had D not taken these actions. D appealed.