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Cussler's sales claims undermined in trial

Author hyped figures to secure deal for `Sahara' rights, Anschutz says.

April 23, 2007|Glenn F. Bunting | Times Staff Writer

For years, author Clive Cussler has boasted on his website that his Dirk Pitt adventure series sold more than 100 million books. He made the same claim in a 2005 legal document signed under penalty of perjury.

But when pressed Friday on the witness stand, Cussler acknowledged he had been warned in the late 1990s that the 100 million number was unreliable. In fact, an extensive audit presented as evidence last week during a Hollywood breach-of-contract trial revealed that the actual number of Cussler books sold through 2000 was at most 42 million.

The disclosure appears to bolster allegations by Denver billionaire Philip Anschutz that Cussler and his literary agent deliberately inflated the novelist's book sales to secure a $10-million-per-book movie rights deal. It also raises questions about the authenticity of sales data used in entertainment industry negotiations to justify lucrative adaptation fees paid to famous authors.

Anschutz and Cussler have been waging a fierce legal battle in a downtown Los Angeles courtroom over who is to blame for the financial failure of the movie "Sahara," which starred Matthew McConaughey and Penelope Cruz. The film has lost about $105 million since it was released in April 2005. A jury is expected to hand down a verdict in the trial next month.

Cussler is scheduled to take the witness stand for a fourth consecutive day this morning in the courtroom of Judge John P. Shook.

On Friday, Cussler offered myriad explanations for his accounting of the "Sahara" numbers. Asked if he pulled the numbers out of thin air, Cussler said, "Pretty much." He added: "I honestly thought I probably did sell 100 million books. That doesn't seem out of the ordinary to me."

Cussler's response, made during tense cross-examination testimony, "illustrates that he is perfectly comfortable lying about the number of books he sold," said Alan Rader, one of several attorneys from the O'Melveny & Myers firm who represent Anschutz. "He was willing to say whatever it took to get the $10 million."

Cussler initially sued in 2004, charging that Anschutz's producers reneged on a contract that gave him extraordinary approval rights over the screenplay. Anschutz countersued, alleging that Cussler acted unreasonably by refusing to collaborate with producers on the script and criticizing the movie before it appeared in theaters. Both sides are seeking tens of millions of dollars in damages.

Anschutz's lawyers filed a fraud claim in October, alleging that Cussler and his New York agent intentionally overstated book sales. They argued that Anschutz agreed to pay "an unprecedented" sum for the author's large fan base. In a separate filing, Anschutz recently sued Cussler's agent, Peter Lampack, in Denver for fraudulently exaggerating book sales.

The audit of Cussler's sales, performed by the Los Angeles litigation consulting firm of Freeman & Mills Inc., examined 26,000 pages of royalty statements and cumulative sales reports from three publishing houses. It took about 1,450 hours to compile and cost Anschutz approximately $200,000.

William Ackerman, a forensic accountant who supervised the audit, testified that all of Cussler's book sales from 1973 to June 2000 amounted to at most 42 million.

Cussler previously testified in a deposition that his agent admonished him in the late 1990s never to say how many books he sold because the amount was not known. Instead, Cussler said, he was advised to use the phrase "books in print."

Asked why he continued to use the 100 million estimate anyway, Cussler testified on Friday, "I slipped up.... I forgot."

Anschutz's lead attorney, Marvin Putnam, spent Friday afternoon methodically recounting for the jury numerous occasions during the past several years when Cussler overstated the sales of his Dirk Pitt books.

In June 1999, Cussler described his frustration with the entertainment industry in a handwritten letter. "Over a hundred million books sold worldwide now, and still Hollywood doesn't get it," he wrote.

In August 2000, Cussler's website stated that he had sold more than 100 million books. The number was updated to 125 million in April 2003.

That same month, Cussler said on a "Sahara" promotional video, "They tell me now they've sold over 130 million."

The remark "meant nothing," Cussler testified Friday.

In November 2005, Cussler signed a sworn statement in the "Sahara" case declaring "it had been firmly established that ... over 100 million copies have been sold."

He testified, "My attorneys did this. I didn't write it."

At times during his testimony, Cussler, 77, appeared confused and gave contradictory answers. He became so exasperated at one point that he buried his face in his hands. Cussler repeatedly insisted that neither he nor his agent referred to the 100 million number during a daylong meeting in June 2000 at which they persuaded Anschutz to pay $20 million for the film rights to "Sahara" and another Dirk Pitt novel.

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