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Case 9:11-cv-00072-DWM Document 38   Filed 07/27/11 Page 1 of 13


Alexander (Zander) Blewett, III
Anders Blewett
HOYT & BLEWETT PLLC
501 Second Avenue North
P.O. Box 2807
Great Falls, MT 59403-2807
Phone: (406) 761-1960
Fax: (406) 761-7186
E-mail: zblewett@hoytandblewett.com
        ablewett@hoytandblewett.com
Larry D. Drury
LARRY D. DRURY, LTD.
100 N. LaSalle Street, Ste. 1010
Chicago, IL 60602
Phone: (312) 346-7950
Fax: (312) 346-5777
E-mail: ldrurylaw@aol.com
Robert A. Langendorf
ROBERT A. LANGENDORF, P.C.
134 N. LaSalle Street, Ste. 1515
Chicago, IL 60602
Phone: (312) 782-5933
Fax: (312) 371-1771
E-mail: rlangendorf@comcast.net
Attorneys for Plaintiffs
                  IN THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF MONTANA
                           MISSOULA DIVISION
                * * * * * * * * * * * * * * * * * * * * *
MICHELE REINHART,               )
DAN DONOVAN, and                )        Cause No. CV-11-72-M-DWM
DEBORAH NETTER, individually    )
and on behalf of all others similarly,
                                )
situated,                       )
                                )        Judge: Donald W. Molloy
                  Plaintiffs,   )
                                )
       v.                       )
                                )        THIRD AMENDED
GREG MORTENSON, DAVID           )        COMPLAINT FOR
OLIVER RELIN, PENGUIN           )        CLASS ACTION WITH
GROUP (USA), INC., a Delaware   )        DEMAND FOR JURY TRIAL
Corporation, and MC CONSULTING, )
Inc., a Montana Corporation,    )
                                )
                  Defendants.   )
                * * * * * * * * * * * * * * * * * * * * *
Case 9:11-cv-00072-DWM Document 38          Filed 07/27/11 Page 2 of 13


     CLAIM FOR CLASS ACTION AGAINST MORTENSON, RELIN
    PENGUIN and/or MC CONSULTING, INC., FOR FRAUD, DECEIT,
    BREACH OF CONTRACT, NEGLIGENT MISREPRESENTATION,
       UNJUST ENRICHMENT AND CONSTRUCTIVE TRUST.
      For their claims against Defendants, Plaintiffs state and allege as follows:
      1.     Plaintiff, Michele Reinhart, is a citizen of the State of Montana,
residing in Missoula, Missoula County, Montana.
      2.     Plaintiff, Dan Donovan, is a citizen of the State of Montana, residing
in Great Falls, Cascade County, Montana.
      3.     Plaintiff, Deborah Netter, is a citizen of the State of Illinois, residing
in Lake County, Illinois.
      4.     Defendant, Greg Mortenson (Mortenson), is an individual residing in
Bozeman, Montana, and acted as the agent of Penguin in the writing, publishing
and promoting of the below-mentioned books.
      5.     Defendant, David Oliver Relin (Relin), is an individual residing in
Portland, Oregon, and acted as the agent of Penguin in the writing, publishing and
promoting of Three Cups of Tea.
      6.     Defendant Penguin Group (USA), Inc. (Penguin), is a foreign
corporation that published the books, Three Cups of Tea, written by Mortenson
and Relin, and Stones Into Schools, written by Mortenson, claiming the books
were true works of nonfiction, including, but not limited to, listing the books on
the New York Times nonfiction best seller list.
      7.     MC Consulting, Inc. (MC), is a Montana corporation, owned and
controlled by Mortenson. On information and belief, Mortenson may have
transferred funds from his book sale royalties to MC.
      8.     In 1993, Mortenson went on a trip where he climbed in the mountains
near K2 in Pakistan. After he returned from that trip, he hatched a scheme,
whereby he thought he could make money for himself and commence a charity


                                          -2-
Case 9:11-cv-00072-DWM Document 38          Filed 07/27/11 Page 3 of 13


through which he could make even more money for himself. This scheme
involved an intricate plan to fabricate facts to make himself into a hero, while
publically stating he was heroically doing it all to help unfortunate children in
Pakistan and Afghanistan. He fabricated the facts and then systematically hid the
truth of the matters from the public, a number of directors of the Board of
Directors of Central Asia Institute, the nonprofit charitable corporation he
controlled, and certain employees of Central Asia Institute. In this regard, he was
not truthful about his financial dealings with Central Asia Institute and was not
truthful about a number of matters, including, but not limited to, his financial
dealings with Central Asia Institute, the number of schools that he built, the
number of children he helped, etc. He then proceeded to cover up a large number
of these falsehoods over a period of many years.
      9.     Mortenson, Relin, and/or Penguin have repeatedly fabricated material
details in the books Three Cups of Tea and Stones into Schools. The purpose of
these fabrications was to induce unsuspecting individuals to purchase these books
and feel good about Mortenson, as a humanitarian working for the sole benefit of
children. These fabrications have generated significant sums of money for
Mortenson, Relin, and Penguin in the form of book sales, personal fame for
Mortenson, and other financial benefits to Mortenson from his charitable work.
      10.    Mortenson and Relin wrote the book Three Cups of Tea in 2006 and
claim to have sold over 4 million copies, many of which were purchased by
Central Asia Institute (CAI), the charity controlled by Mortenson, to give extra
royalties to Mortenson, Relin, and Penguin and keep the book on the bestseller
list. Mortenson also wrote the book Stones into Schools in 2009 and sold a large
number of copies.
      11.    Penguin either knew that Mortenson’s public statements and the two
books contained falsehoods, or should have known, and had a duty to verify

                                         -3-
Case 9:11-cv-00072-DWM Document 38         Filed 07/27/11 Page 4 of 13


Mortenson’s and Relin’s statements or otherwise exercise reasonable care before
publishing these books as true. Penguin knew more books would be sold, if the
stories were represented to be true. Penguin specifically omitted that the books
were not true and profited from the misrepresentations that the books were true.
      12.    Pursuant to 28 U.S.C. § 1332(d), jurisdiction in Federal District Court
is appropriate because the amount in controversy exceeds $5,000,000, exclusive of
interest and costs, the class contains more than 100 members, greater than one-
third of the class members are citizens of a state different from Defendants’, and
the principle injuries resulting from Defendants’ unlawful conduct occurred
outside Montana.
      13.    Venue is proper in Missoula County because the torts against Michele
Reinhart occurred there and because Michele Reinhart, in her claim against
Penguin, is a resident of Missoula County and the contract was to be performed in
Missoula County.
      14.    These books purport to be true accounts of how Mortenson
transitioned from a mountain-climber to an astonishingly brave, selfless
humanitarian building schools in Pakistan and Afghanistan for the purposes of
educating girls. Mortenson has repeatedly appeared in public or written in a
public forum to recount the events described in these books. Many of his
representations made in the books and in his public speeches and public
statements are false.
      15.    On or around September 21, 2007, Plaintiff, Michele Reinhart,
attended a presentation given by Mortenson at the University of Montana’s
University Theater. During this speech, Mortenson indicated his book Three Cups
of Tea was a true account of the experiences he had in Central Asia and that all his
activities were truly selfless, humanitarianism. Sometime thereafter, Plaintiff,
Michele Reinhart, purchased a copy of the book in Missoula, Montana, and paid

                                         -4-
Case 9:11-cv-00072-DWM Document 38          Filed 07/27/11 Page 5 of 13


approximately $15.00. Dan Donovan heard of the exploits of Mortenson and,
relying on the truthfulness of what Mortenson had previously said publicly about
his humanitarianism and activities, and relying on the truthfulness of Three Cups
of Tea, purchased Stones into Schools at Barnes and Noble on October 31, 2010,
in Great Falls, Montana, and paid $14.40 for this book. Deborah Netter heard of
the exploits of Mortenson and, relying on the truthfulness of what Mortenson had
previously said publicly about his humanitarianism and activities, purchased the
paperback edition of Three Cups of Tea published by Penguin in or about January
2011 at Barnes and Noble in Vernon, Illinois, and paid $17.32 therefore.
                     COUNT I: BREACH OF CONTRACT
      1-15. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-15 above.
      16.    Mortenson, Relin and Penguin offered Three Cups of Tea and Stones
Into Schools, to the Plaintiffs and the class, as nonfiction and true stories of
Mortenson’s activities. The Plaintiffs and the Class accepted the Defendants’
offer and paid for, and received, the aforesaid books. However, many of
Mortenson’s, Relin’s and Penguin’s public statements, representations and
omissions made in the books were false, misleading, deceptive, and contrary to the
agreement as alleged herein.
      17.    As a result, Mortenson, Relin and Penguin are liable for breach of
contract and should disgorge the purchase prices, with interest thereon to the
Plaintiffs and the Class.
               COUNT II: BREACH OF IMPLIED CONTRACT
      1-17. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-17 above.
      18.    Count II of this class action complaint is pled in the alternative to
Count I.
      19.    By advertising, marketing, and promoting Three Cups of Tea and
Stones Into Schools as nonfiction and true stories, the characteristics of said books

                                          -5-
Case 9:11-cv-00072-DWM Document 38          Filed 07/27/11 Page 6 of 13


became an implied contractual condition of sale upon the purchase thereof by the
Plaintiffs and the class.
      20.    Defendants breached their implied contracts with Plaintiffs and the
class by selling Plaintiffs and the class books that were in fact not a true, accurate,
and genuine stories of Mortenson’s life experiences following his failed attempt at
climbing K2, but in actuality were pure fiction.
      21.    As a direct and proximate result of Defendants’ aforesaid breach and
conduct, Plaintiffs and the class have been damaged.
                               COUNT III: FRAUD
      1-21. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-21 above.
      22.    In an effort to entice people by Mortenson’s self-proclaimed
humanitarianism and to buy the two books, Mortenson, Relin and Penguin have
consistently maintained that the statements in the books and Mortenson’s public
speeches and published writings are true. His books and public statements contain
many fabrications and/or omissions, which he, Relin and/or Penguin have repeated
publicly on numerous occasions.
      23.    Mortenson, Relin and/or Penguin committed actual fraud against
Plaintiffs by inducing them to accept Mortenson’s self-proclaimed humanitarian
qualities and to purchase the books that Mortenson, Relin and Penguin publicly
represented to be true works when in fact the books contained numerous
fabrications and/or omissions. The elements of actual fraud have been satisfied
because, (1) Mortenson, Relin and Penguin represented to Plaintiffs that the books
and his public statements were true accounts based on events which actually took
place; (2) The representations were false in that many of the statements were
falsified and the Defendants omitted and/or failed to disclose that the books were
not nonfiction; (3) The representations and/or omissions were material because
they pertained to integral aspects of the book’s narrative and public statements

                                          -6-
Case 9:11-cv-00072-DWM Document 38         Filed 07/27/11 Page 7 of 13


which led Plaintiffs to believe that they were purchasing books based entirely on
factual information from a selfless humanitarian; (4) Mortenson, Relin and/or
Penguin knew some of the representations were false because they described in
his books and public statements events involving Mortenson that never occurred;
(5) By representing that these books and public statements were based on fact,
Mortenson, Relin and/or Penguin intended Plaintiffs and the class to rely upon
these misrepresentations and to purchase the books with the mistaken belief that
they were true; (6) Plaintiffs and the class were completely ignorant to the fact that
Mortenson, Relin and Penguin included fabrications and/or omissions within the
books and public statements; (7) Plaintiffs and the class relied upon the truth of
the representations to their determent by purchasing the books that they otherwise
would not have purchased had they known of the falsified information; (8) It was
reasonable for Plaintiffs and the class to rely upon Mortenson’s, Relin’s and
Penguin’s representations because Mortenson and Relin were world renowned
authors, and Penguin a well-known publisher. When Mortenson, Relin and
Penguin represented that the books and public statements were factual, Plaintiffs
had every right to rely upon those representations; (9) Plaintiffs and the class were
damaged by their reliance on Mortenson’s, Relin’s and/or Penguin’s false
representations in the amount of the purchase prices of the books, plus interest.
                              COUNT IV: DECEIT
      1-23. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-23 above.
      24.    Mortenson, Relin and/or Penguin are liable to Plaintiffs for the tort of
deceit because they willfully deceived Plaintiffs with the intent to induce Plaintiffs
to accept his humanitarianism and to purchase the books.
                     COUNT V: UNJUST ENRICHMENT
      1-24. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-24 above.


                                         -7-
Case 9:11-cv-00072-DWM Document 38         Filed 07/27/11 Page 8 of 13


      25.     The conduct of Mortenson, Relin and Penguin has resulted in their
receiving unjust enrichment to the detriment of Plaintiffs, and Mortenson, Relin
and Penguin should be forced to disgorge the books’ purchase prices, plus interest.
            COUNT VI: NEGLIGENT MISREPRESENTATIONS BY
                              PENGUIN AND RELIN
      1-25. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-25 above.
      26.     In the alternative, Penguin and Relin negligently made
representations regarding Mortenson’s selflessness, humanitarianism, and the
truthfulness of Three Cups of Tea and/or Stones Into Schools and regarding
Mortenson’s public statements; these representations were false; Plaintiffs
reasonably relied on the false representations and purchased the books and
Penguin and Relin are liable for all such damages, which also should be placed in
the constructive trust.
               COUNT VII: PENGUIN LIABLE AS PRINCIPAL
      1-26. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-26 above.
      27.     Penguin is liable for all of the conduct of Mortenson and Relin as it
was their principal and they were acting within the scope of their agency
relationship at all pertinent times.
                      COUNT VIII: PUNITIVE DAMAGES
      1-27. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-27 above.
      28.     The conduct of Mortenson, Relin, Penguin and/or MC constitutes
malice and/or other egregious conduct for which a jury should award punitive
damages in an amount it determines appropriate under the circumstances.
                 COUNT IX: UNJUST ENRICHMENT BY MC
      1-28. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-28 above.




                                          -8-
Case 9:11-cv-00072-DWM Document 38         Filed 07/27/11 Page 9 of 13


      29.    MC has been unjustly enriched by receiving any of these funds from
Mortenson’s book sales and should be forced to disgorge all such funds plus interest.
            COUNT X: ACCOUNTING AND INJUNCTIVE RELIEF
      1-29. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-29 above.
      30.    Defendants should account for all money improperly collected from
the wrongful sales of the books, should have a constructive trust imposed on said
monies until further order of the Court, should disgorge all profits collected from
the sale of the books, plus interest, and should be enjoined from disbursing any of
the monies received from said sales.
      31.    The true monetary amounts garnered from Defendants’ wrongful
conduct is only ascertainable from a detailed review of Defendants’ accounting
records and finances, and Plaintiffs and the class would otherwise be unable to
determine the actual damages suffered and/or amounts unjustly retained by
Defendants and have no other adequate remedy at law.
      32.    Defendants should also be enjoined from continuing to market said
books as pieces of nonfiction and/or as true stories, so as to prevent future losses
by consumers. No remedy at law is otherwise available to remedy this pending
harm to said consumers.
                COUNT XI: CLASS ACTION ALLEGATIONS
      1-32. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-32 above.
      33.    Plaintiffs, Michele Reinhart and Deborah Netter, as purchasers of
Three Cups of Tea, and Dan Donovan as a purchaser of Stones Into Schools, are
representative parties for the class of other individuals who purchased either of
Mortenson’s books, and have standing to bring this class action.
      34.    Based on the breach of contract, breach of implied contract, fraud,
deceit, and/or negligent misrepresentation by Mortenson, Relin and Penguin in
dealing with every book purchaser, Mortenson, Relin, Penguin and MC have been

                                         -9-
Case 9:11-cv-00072-DWM Document 38           Filed 07/27/11 Page 10 of 13


unjustly enriched by the purchase prices paid and Mortenson’s fame and other
financial benefits. A constructive trust should be created into which all of the
funds paid for the books and Mortenson’s other financial benefits should flow. If
no constructive trust is established to receive these funds, and Mortenson, Relin,
Penguin and MC are permitted to retain the funds, they will be unjustly enriched.
The funds in the constructive trust should then be refunded to the Plaintiffs and
the class and any unclaimed balance thereof transferred to an appropriate third-
party institution to be selected by counsel for the Plaintiffs, with approval by the
Court, for the humanitarian purposes originally stated by Mortenson, or such other
purposes as the Court deems appropriate.
      35.    This class is so numerous that joinder of all members is impractical
and, in this regard, Plaintiffs have no way of determining or joining all members
of this class unless this Court certifies this class. There are questions of law and
questions of fact that are common to the class because Mortenson’s, Relin’s and/or
Penguin’s fabrications and/or omissions, which have been publicly reiterated and
are also contained in the books, have resulted in a vast number of people
purchasing the books. The claims of Plaintiffs and the other class members, and
the defenses of Mortenson, Relin, Penguin and MC are typical, if not identical, in
all such claims being asserted on behalf of the class. Finally, the Plaintiffs and
their counsel can, and will, fairly and adequately protect the interests of the class.
      36.    This proposed class-action should be certified because the questions
of law and/or of fact common to class members predominate over any questions
affecting only individual members and there are almost no questions of law or fact
that only affect individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy. As a
practical matter, there is no other available method. In this regard, the Plaintiffs,
bringing this class action advise the Court:

                                          -10-
Case 9:11-cv-00072-DWM Document 38           Filed 07/27/11 Page 11 of 13


             (A)    Plaintiffs are in a position to have this issue resolved for all
class members who either purchased Mortenson’s and Relin’s and Penguin’s
books and for all class members who have been damaged by Mortenson’s, Relin’s,
Penguin’s and/or MC’s unjust enrichment, breach of contract, deceit, fraud and
negligent misrepresentation. These other class members do not have the
knowledge, resources, legal expertise, or time to bring these claims individually in
separate actions.
             (B)    When the complaint was originally filed, to the knowledge of
Plaintiffs, there were no other cases pending against Mortenson, Relin, Penguin or
MC concerning the controversy which has already been begun by Plaintiffs
individually and on behalf of the class members in this proposed class action.
             (C)    The desirability of concentrating the litigation of all of these
claims in this particular forum before this particular Court under these
circumstances, where the entire case turns on the common scheme of deceit, fraud,
negligent misrepresentation, breach of contract and unjust enrichment, employed
by Mortenson, Relin, Penguin or MC is undeniable.
             (D)    Although all class actions have certain difficulties,
representative Plaintiffs and their counsel feel these difficulties will be much more
easily managed through a class action proceeding than through the nearly
impossible procedure of individual prosecutions.
      37.    Pursuant to Rule 23(b)(3), Fed.R.Civ.P., Plaintiffs bring this class
action on behalf of themselves and all members of the following class: All
consumers throughout the world who purchased Three Cups of Tea or Stones Into
Schools in any form or media (e.g., hardcover, paperback, audio book, audio
download, e-book download) from January 1, 2006, to the date of judgment.
      38.    On information and belief, millions of individuals have been
adversely affected by the Defendants’ fabrications and/or omissions.

                                          -11-
Case 9:11-cv-00072-DWM Document 38           Filed 07/27/11 Page 12 of 13


                             PRAYER FOR RELIEF
      WHEREFORE, Plaintiffs pray that the Court, as early as practicable,
enter an order as follows:
      A.     Certifying this matter as a class action for the disgorgement and
             payment of both book purchases, interest, and Mortenson’s other ill-
             gotten funds;
      B.     Order that the Defendants place all proceeds from the sale and/or
             marketing of Three Cups of Tea and Stones Into Schools into a
             constructive trust for the benefit of Plaintiffs and the class;
      C.     Order that Defendants be enjoined to stop all advertising, marketing,
             promoting, and/or sales of Three Cups of Tea and Stones Into Schools
             that refers to the books as being nonfiction and/or true stories;
      D.     Place any funds received by MC from book purchases into a
             constructive trust, with the funds to be used as set forth in paragraph
             46 herein, pursuant to Rule 23(b)(3), F.R.C.P.;
      E.     Order that Defendants complete an accounting of all wrongfully
             retained proceeds;
      F.     Award reasonable attorneys’ fees and costs;
      G.     Appoint a trustee for the constructive trust, and a claims
             administrator as the Court deems appropriate;
      H.     Direct such notice to the Class, pursuant to F.R.Civ.P. 23 (c)(2)(B),
             Fed.R.Civ.P. as the Court deems appropriate.
      I.     Award punitive damages;
      J.     Appoint the named Plaintiffs herein as class representatives;
      K.     Appoint Plaintiffs’ counsel, Alexander (Zander) Blewett, III, Anders
             Blewett and Larry D. Drury, as co-lead class counsel, and Robert A.
             Langendorf, as class counsel; and

                                         -12-
Case 9:11-cv-00072-DWM Document 38          Filed 07/27/11 Page 13 of 13


      L.     Award such other damages and equitable relief to Plaintiffs and the
             class as the Court deems appropriate.
      Plaintiffs demand trial by jury on the class action claim for all issues which
are triable by jury.
      DATED this 18th day of July, 2011.
                                         HOYT & BLEWETT PLLC


                                                /s/ Alexander Blewett, III
                                         Alexander (Zander) Blewett, III
                                         Anders Blewett
                                         Attorneys for Plaintiffs

                         DEMAND FOR JURY TRIAL
      Plaintiffs demand that all issues be tried before a jury.
      DATED this 18th day of July, 2011.
                                         HOYT & BLEWETT PLLC


                                                /s/ Alexander Blewett, III
                                         Alexander (Zander) Blewett, III
                                         Anders Blewett
                                         Attorneys for Plaintiffs




                                         -13-

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Plaintiff's third amended complaint doc 38

  • 1. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 1 of 13 Alexander (Zander) Blewett, III Anders Blewett HOYT & BLEWETT PLLC 501 Second Avenue North P.O. Box 2807 Great Falls, MT 59403-2807 Phone: (406) 761-1960 Fax: (406) 761-7186 E-mail: zblewett@hoytandblewett.com ablewett@hoytandblewett.com Larry D. Drury LARRY D. DRURY, LTD. 100 N. LaSalle Street, Ste. 1010 Chicago, IL 60602 Phone: (312) 346-7950 Fax: (312) 346-5777 E-mail: ldrurylaw@aol.com Robert A. Langendorf ROBERT A. LANGENDORF, P.C. 134 N. LaSalle Street, Ste. 1515 Chicago, IL 60602 Phone: (312) 782-5933 Fax: (312) 371-1771 E-mail: rlangendorf@comcast.net Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION * * * * * * * * * * * * * * * * * * * * * MICHELE REINHART, ) DAN DONOVAN, and ) Cause No. CV-11-72-M-DWM DEBORAH NETTER, individually ) and on behalf of all others similarly, ) situated, ) ) Judge: Donald W. Molloy Plaintiffs, ) ) v. ) ) THIRD AMENDED GREG MORTENSON, DAVID ) COMPLAINT FOR OLIVER RELIN, PENGUIN ) CLASS ACTION WITH GROUP (USA), INC., a Delaware ) DEMAND FOR JURY TRIAL Corporation, and MC CONSULTING, ) Inc., a Montana Corporation, ) ) Defendants. ) * * * * * * * * * * * * * * * * * * * * *
  • 2. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 2 of 13 CLAIM FOR CLASS ACTION AGAINST MORTENSON, RELIN PENGUIN and/or MC CONSULTING, INC., FOR FRAUD, DECEIT, BREACH OF CONTRACT, NEGLIGENT MISREPRESENTATION, UNJUST ENRICHMENT AND CONSTRUCTIVE TRUST. For their claims against Defendants, Plaintiffs state and allege as follows: 1. Plaintiff, Michele Reinhart, is a citizen of the State of Montana, residing in Missoula, Missoula County, Montana. 2. Plaintiff, Dan Donovan, is a citizen of the State of Montana, residing in Great Falls, Cascade County, Montana. 3. Plaintiff, Deborah Netter, is a citizen of the State of Illinois, residing in Lake County, Illinois. 4. Defendant, Greg Mortenson (Mortenson), is an individual residing in Bozeman, Montana, and acted as the agent of Penguin in the writing, publishing and promoting of the below-mentioned books. 5. Defendant, David Oliver Relin (Relin), is an individual residing in Portland, Oregon, and acted as the agent of Penguin in the writing, publishing and promoting of Three Cups of Tea. 6. Defendant Penguin Group (USA), Inc. (Penguin), is a foreign corporation that published the books, Three Cups of Tea, written by Mortenson and Relin, and Stones Into Schools, written by Mortenson, claiming the books were true works of nonfiction, including, but not limited to, listing the books on the New York Times nonfiction best seller list. 7. MC Consulting, Inc. (MC), is a Montana corporation, owned and controlled by Mortenson. On information and belief, Mortenson may have transferred funds from his book sale royalties to MC. 8. In 1993, Mortenson went on a trip where he climbed in the mountains near K2 in Pakistan. After he returned from that trip, he hatched a scheme, whereby he thought he could make money for himself and commence a charity -2-
  • 3. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 3 of 13 through which he could make even more money for himself. This scheme involved an intricate plan to fabricate facts to make himself into a hero, while publically stating he was heroically doing it all to help unfortunate children in Pakistan and Afghanistan. He fabricated the facts and then systematically hid the truth of the matters from the public, a number of directors of the Board of Directors of Central Asia Institute, the nonprofit charitable corporation he controlled, and certain employees of Central Asia Institute. In this regard, he was not truthful about his financial dealings with Central Asia Institute and was not truthful about a number of matters, including, but not limited to, his financial dealings with Central Asia Institute, the number of schools that he built, the number of children he helped, etc. He then proceeded to cover up a large number of these falsehoods over a period of many years. 9. Mortenson, Relin, and/or Penguin have repeatedly fabricated material details in the books Three Cups of Tea and Stones into Schools. The purpose of these fabrications was to induce unsuspecting individuals to purchase these books and feel good about Mortenson, as a humanitarian working for the sole benefit of children. These fabrications have generated significant sums of money for Mortenson, Relin, and Penguin in the form of book sales, personal fame for Mortenson, and other financial benefits to Mortenson from his charitable work. 10. Mortenson and Relin wrote the book Three Cups of Tea in 2006 and claim to have sold over 4 million copies, many of which were purchased by Central Asia Institute (CAI), the charity controlled by Mortenson, to give extra royalties to Mortenson, Relin, and Penguin and keep the book on the bestseller list. Mortenson also wrote the book Stones into Schools in 2009 and sold a large number of copies. 11. Penguin either knew that Mortenson’s public statements and the two books contained falsehoods, or should have known, and had a duty to verify -3-
  • 4. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 4 of 13 Mortenson’s and Relin’s statements or otherwise exercise reasonable care before publishing these books as true. Penguin knew more books would be sold, if the stories were represented to be true. Penguin specifically omitted that the books were not true and profited from the misrepresentations that the books were true. 12. Pursuant to 28 U.S.C. § 1332(d), jurisdiction in Federal District Court is appropriate because the amount in controversy exceeds $5,000,000, exclusive of interest and costs, the class contains more than 100 members, greater than one- third of the class members are citizens of a state different from Defendants’, and the principle injuries resulting from Defendants’ unlawful conduct occurred outside Montana. 13. Venue is proper in Missoula County because the torts against Michele Reinhart occurred there and because Michele Reinhart, in her claim against Penguin, is a resident of Missoula County and the contract was to be performed in Missoula County. 14. These books purport to be true accounts of how Mortenson transitioned from a mountain-climber to an astonishingly brave, selfless humanitarian building schools in Pakistan and Afghanistan for the purposes of educating girls. Mortenson has repeatedly appeared in public or written in a public forum to recount the events described in these books. Many of his representations made in the books and in his public speeches and public statements are false. 15. On or around September 21, 2007, Plaintiff, Michele Reinhart, attended a presentation given by Mortenson at the University of Montana’s University Theater. During this speech, Mortenson indicated his book Three Cups of Tea was a true account of the experiences he had in Central Asia and that all his activities were truly selfless, humanitarianism. Sometime thereafter, Plaintiff, Michele Reinhart, purchased a copy of the book in Missoula, Montana, and paid -4-
  • 5. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 5 of 13 approximately $15.00. Dan Donovan heard of the exploits of Mortenson and, relying on the truthfulness of what Mortenson had previously said publicly about his humanitarianism and activities, and relying on the truthfulness of Three Cups of Tea, purchased Stones into Schools at Barnes and Noble on October 31, 2010, in Great Falls, Montana, and paid $14.40 for this book. Deborah Netter heard of the exploits of Mortenson and, relying on the truthfulness of what Mortenson had previously said publicly about his humanitarianism and activities, purchased the paperback edition of Three Cups of Tea published by Penguin in or about January 2011 at Barnes and Noble in Vernon, Illinois, and paid $17.32 therefore. COUNT I: BREACH OF CONTRACT 1-15. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-15 above. 16. Mortenson, Relin and Penguin offered Three Cups of Tea and Stones Into Schools, to the Plaintiffs and the class, as nonfiction and true stories of Mortenson’s activities. The Plaintiffs and the Class accepted the Defendants’ offer and paid for, and received, the aforesaid books. However, many of Mortenson’s, Relin’s and Penguin’s public statements, representations and omissions made in the books were false, misleading, deceptive, and contrary to the agreement as alleged herein. 17. As a result, Mortenson, Relin and Penguin are liable for breach of contract and should disgorge the purchase prices, with interest thereon to the Plaintiffs and the Class. COUNT II: BREACH OF IMPLIED CONTRACT 1-17. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-17 above. 18. Count II of this class action complaint is pled in the alternative to Count I. 19. By advertising, marketing, and promoting Three Cups of Tea and Stones Into Schools as nonfiction and true stories, the characteristics of said books -5-
  • 6. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 6 of 13 became an implied contractual condition of sale upon the purchase thereof by the Plaintiffs and the class. 20. Defendants breached their implied contracts with Plaintiffs and the class by selling Plaintiffs and the class books that were in fact not a true, accurate, and genuine stories of Mortenson’s life experiences following his failed attempt at climbing K2, but in actuality were pure fiction. 21. As a direct and proximate result of Defendants’ aforesaid breach and conduct, Plaintiffs and the class have been damaged. COUNT III: FRAUD 1-21. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-21 above. 22. In an effort to entice people by Mortenson’s self-proclaimed humanitarianism and to buy the two books, Mortenson, Relin and Penguin have consistently maintained that the statements in the books and Mortenson’s public speeches and published writings are true. His books and public statements contain many fabrications and/or omissions, which he, Relin and/or Penguin have repeated publicly on numerous occasions. 23. Mortenson, Relin and/or Penguin committed actual fraud against Plaintiffs by inducing them to accept Mortenson’s self-proclaimed humanitarian qualities and to purchase the books that Mortenson, Relin and Penguin publicly represented to be true works when in fact the books contained numerous fabrications and/or omissions. The elements of actual fraud have been satisfied because, (1) Mortenson, Relin and Penguin represented to Plaintiffs that the books and his public statements were true accounts based on events which actually took place; (2) The representations were false in that many of the statements were falsified and the Defendants omitted and/or failed to disclose that the books were not nonfiction; (3) The representations and/or omissions were material because they pertained to integral aspects of the book’s narrative and public statements -6-
  • 7. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 7 of 13 which led Plaintiffs to believe that they were purchasing books based entirely on factual information from a selfless humanitarian; (4) Mortenson, Relin and/or Penguin knew some of the representations were false because they described in his books and public statements events involving Mortenson that never occurred; (5) By representing that these books and public statements were based on fact, Mortenson, Relin and/or Penguin intended Plaintiffs and the class to rely upon these misrepresentations and to purchase the books with the mistaken belief that they were true; (6) Plaintiffs and the class were completely ignorant to the fact that Mortenson, Relin and Penguin included fabrications and/or omissions within the books and public statements; (7) Plaintiffs and the class relied upon the truth of the representations to their determent by purchasing the books that they otherwise would not have purchased had they known of the falsified information; (8) It was reasonable for Plaintiffs and the class to rely upon Mortenson’s, Relin’s and Penguin’s representations because Mortenson and Relin were world renowned authors, and Penguin a well-known publisher. When Mortenson, Relin and Penguin represented that the books and public statements were factual, Plaintiffs had every right to rely upon those representations; (9) Plaintiffs and the class were damaged by their reliance on Mortenson’s, Relin’s and/or Penguin’s false representations in the amount of the purchase prices of the books, plus interest. COUNT IV: DECEIT 1-23. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-23 above. 24. Mortenson, Relin and/or Penguin are liable to Plaintiffs for the tort of deceit because they willfully deceived Plaintiffs with the intent to induce Plaintiffs to accept his humanitarianism and to purchase the books. COUNT V: UNJUST ENRICHMENT 1-24. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-24 above. -7-
  • 8. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 8 of 13 25. The conduct of Mortenson, Relin and Penguin has resulted in their receiving unjust enrichment to the detriment of Plaintiffs, and Mortenson, Relin and Penguin should be forced to disgorge the books’ purchase prices, plus interest. COUNT VI: NEGLIGENT MISREPRESENTATIONS BY PENGUIN AND RELIN 1-25. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-25 above. 26. In the alternative, Penguin and Relin negligently made representations regarding Mortenson’s selflessness, humanitarianism, and the truthfulness of Three Cups of Tea and/or Stones Into Schools and regarding Mortenson’s public statements; these representations were false; Plaintiffs reasonably relied on the false representations and purchased the books and Penguin and Relin are liable for all such damages, which also should be placed in the constructive trust. COUNT VII: PENGUIN LIABLE AS PRINCIPAL 1-26. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-26 above. 27. Penguin is liable for all of the conduct of Mortenson and Relin as it was their principal and they were acting within the scope of their agency relationship at all pertinent times. COUNT VIII: PUNITIVE DAMAGES 1-27. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-27 above. 28. The conduct of Mortenson, Relin, Penguin and/or MC constitutes malice and/or other egregious conduct for which a jury should award punitive damages in an amount it determines appropriate under the circumstances. COUNT IX: UNJUST ENRICHMENT BY MC 1-28. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-28 above. -8-
  • 9. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 9 of 13 29. MC has been unjustly enriched by receiving any of these funds from Mortenson’s book sales and should be forced to disgorge all such funds plus interest. COUNT X: ACCOUNTING AND INJUNCTIVE RELIEF 1-29. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-29 above. 30. Defendants should account for all money improperly collected from the wrongful sales of the books, should have a constructive trust imposed on said monies until further order of the Court, should disgorge all profits collected from the sale of the books, plus interest, and should be enjoined from disbursing any of the monies received from said sales. 31. The true monetary amounts garnered from Defendants’ wrongful conduct is only ascertainable from a detailed review of Defendants’ accounting records and finances, and Plaintiffs and the class would otherwise be unable to determine the actual damages suffered and/or amounts unjustly retained by Defendants and have no other adequate remedy at law. 32. Defendants should also be enjoined from continuing to market said books as pieces of nonfiction and/or as true stories, so as to prevent future losses by consumers. No remedy at law is otherwise available to remedy this pending harm to said consumers. COUNT XI: CLASS ACTION ALLEGATIONS 1-32. Plaintiffs reallege each of the allegations set forth in ¶¶ 1-32 above. 33. Plaintiffs, Michele Reinhart and Deborah Netter, as purchasers of Three Cups of Tea, and Dan Donovan as a purchaser of Stones Into Schools, are representative parties for the class of other individuals who purchased either of Mortenson’s books, and have standing to bring this class action. 34. Based on the breach of contract, breach of implied contract, fraud, deceit, and/or negligent misrepresentation by Mortenson, Relin and Penguin in dealing with every book purchaser, Mortenson, Relin, Penguin and MC have been -9-
  • 10. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 10 of 13 unjustly enriched by the purchase prices paid and Mortenson’s fame and other financial benefits. A constructive trust should be created into which all of the funds paid for the books and Mortenson’s other financial benefits should flow. If no constructive trust is established to receive these funds, and Mortenson, Relin, Penguin and MC are permitted to retain the funds, they will be unjustly enriched. The funds in the constructive trust should then be refunded to the Plaintiffs and the class and any unclaimed balance thereof transferred to an appropriate third- party institution to be selected by counsel for the Plaintiffs, with approval by the Court, for the humanitarian purposes originally stated by Mortenson, or such other purposes as the Court deems appropriate. 35. This class is so numerous that joinder of all members is impractical and, in this regard, Plaintiffs have no way of determining or joining all members of this class unless this Court certifies this class. There are questions of law and questions of fact that are common to the class because Mortenson’s, Relin’s and/or Penguin’s fabrications and/or omissions, which have been publicly reiterated and are also contained in the books, have resulted in a vast number of people purchasing the books. The claims of Plaintiffs and the other class members, and the defenses of Mortenson, Relin, Penguin and MC are typical, if not identical, in all such claims being asserted on behalf of the class. Finally, the Plaintiffs and their counsel can, and will, fairly and adequately protect the interests of the class. 36. This proposed class-action should be certified because the questions of law and/or of fact common to class members predominate over any questions affecting only individual members and there are almost no questions of law or fact that only affect individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. As a practical matter, there is no other available method. In this regard, the Plaintiffs, bringing this class action advise the Court: -10-
  • 11. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 11 of 13 (A) Plaintiffs are in a position to have this issue resolved for all class members who either purchased Mortenson’s and Relin’s and Penguin’s books and for all class members who have been damaged by Mortenson’s, Relin’s, Penguin’s and/or MC’s unjust enrichment, breach of contract, deceit, fraud and negligent misrepresentation. These other class members do not have the knowledge, resources, legal expertise, or time to bring these claims individually in separate actions. (B) When the complaint was originally filed, to the knowledge of Plaintiffs, there were no other cases pending against Mortenson, Relin, Penguin or MC concerning the controversy which has already been begun by Plaintiffs individually and on behalf of the class members in this proposed class action. (C) The desirability of concentrating the litigation of all of these claims in this particular forum before this particular Court under these circumstances, where the entire case turns on the common scheme of deceit, fraud, negligent misrepresentation, breach of contract and unjust enrichment, employed by Mortenson, Relin, Penguin or MC is undeniable. (D) Although all class actions have certain difficulties, representative Plaintiffs and their counsel feel these difficulties will be much more easily managed through a class action proceeding than through the nearly impossible procedure of individual prosecutions. 37. Pursuant to Rule 23(b)(3), Fed.R.Civ.P., Plaintiffs bring this class action on behalf of themselves and all members of the following class: All consumers throughout the world who purchased Three Cups of Tea or Stones Into Schools in any form or media (e.g., hardcover, paperback, audio book, audio download, e-book download) from January 1, 2006, to the date of judgment. 38. On information and belief, millions of individuals have been adversely affected by the Defendants’ fabrications and/or omissions. -11-
  • 12. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 12 of 13 PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray that the Court, as early as practicable, enter an order as follows: A. Certifying this matter as a class action for the disgorgement and payment of both book purchases, interest, and Mortenson’s other ill- gotten funds; B. Order that the Defendants place all proceeds from the sale and/or marketing of Three Cups of Tea and Stones Into Schools into a constructive trust for the benefit of Plaintiffs and the class; C. Order that Defendants be enjoined to stop all advertising, marketing, promoting, and/or sales of Three Cups of Tea and Stones Into Schools that refers to the books as being nonfiction and/or true stories; D. Place any funds received by MC from book purchases into a constructive trust, with the funds to be used as set forth in paragraph 46 herein, pursuant to Rule 23(b)(3), F.R.C.P.; E. Order that Defendants complete an accounting of all wrongfully retained proceeds; F. Award reasonable attorneys’ fees and costs; G. Appoint a trustee for the constructive trust, and a claims administrator as the Court deems appropriate; H. Direct such notice to the Class, pursuant to F.R.Civ.P. 23 (c)(2)(B), Fed.R.Civ.P. as the Court deems appropriate. I. Award punitive damages; J. Appoint the named Plaintiffs herein as class representatives; K. Appoint Plaintiffs’ counsel, Alexander (Zander) Blewett, III, Anders Blewett and Larry D. Drury, as co-lead class counsel, and Robert A. Langendorf, as class counsel; and -12-
  • 13. Case 9:11-cv-00072-DWM Document 38 Filed 07/27/11 Page 13 of 13 L. Award such other damages and equitable relief to Plaintiffs and the class as the Court deems appropriate. Plaintiffs demand trial by jury on the class action claim for all issues which are triable by jury. DATED this 18th day of July, 2011. HOYT & BLEWETT PLLC /s/ Alexander Blewett, III Alexander (Zander) Blewett, III Anders Blewett Attorneys for Plaintiffs DEMAND FOR JURY TRIAL Plaintiffs demand that all issues be tried before a jury. DATED this 18th day of July, 2011. HOYT & BLEWETT PLLC /s/ Alexander Blewett, III Alexander (Zander) Blewett, III Anders Blewett Attorneys for Plaintiffs -13-