Book Publishers Will Escape Legal Blame for Box Office Bomb 'Sahara'

The Colorado Supreme Court makes the latest ruling in an eight-year war over the Matthew McConaughey film.

Some box-office analysts are in the midst of figuring out what went wrong with The Fifth Estate. There's probably far fewer people who are still thinking about the disappointment of John Carter. Then there's Sahara, the 2005 film starring Matthew McConaughey and Penelope Cruz. It's been eight years since the $130 million film made back about half of that in domestic gross, but that doesn't mean the autopsy is quite over with.

After the film came out, there was an epic amount of litigation between novelist Clive Cussler and Philip Anschutz's Crusader Entertainment. There was a 14-week trial too, which ultimately culminated in an outcome which hardly had any winners.

But that didn't end things.

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In Colorado court, Bristol Bay Productions (renamed from Crusader) sought to hold Simon & Schuster, Penguin Group and Cussler's literary agent responsible for the underperforming film. The theory was that the book publishers had misrepresented Cussler's readership by claiming the author had sold over 100 million books. Had Anschutz's company known the figure was merely about 40 million, it wouldn't have purchased film rights.

If that argument sounds familiar, it's because Crusader attempted to make it against Cussler in the midst of the Los Angeles trial. A jury agreed that Cussler misrepresented his readership and that Crusader reasonably relied on those representations, but nevertheless rejected fraud claims because the readership inflation did not cause the film company's losses.

This week, the Colorado Supreme Court had to determine whether Bristol Bay was precluded from raising the same issue against the publishers and literary agent. Bristol claimed $50 million in damages.

But the state's highest court barred Bristol from relitigating the issue.

"The identity of the defendants in this case is not relevant to the causation element Bristol Bay must prove to prevail on its fraud and fraud-based claims," wrote Chief Justice Michael Bender for the majority.

That wasn't a satisfactory response for Justice Nancy Rice, who in her minority opinion, thought identity to be a "highly relevant" factor. She proposed a hypothetical where one defendant had a tendency to exaggerate and another didn't. Presumably, one would be more damaged from the lie of a typical truth-teller than a serial liar.

Nevertheless, the case is over. Well, sort of. The Colorado Supreme Court remanded it to a lower court because the lawsuit was thrown out on a motion to dismiss rather than a summary judgment. Yes, a total technicality, but one that meant responsibility of millions of dollars in legal fees.

Twitter: @eriqgardner