Ventura v. Kyle shows that with defamation lawsuits, even when you win, sometimes you don’t

UPDATE: Since this story was posted, there have been further developments in this story. On October 20, 2015, a Federal Appeals Court in Minneapolis indicated that they may order a new trial in the defamation case of former Minnesota governor Jesse Ventura against the estate of the late “American Sniper” Chris Kyle. At risk is the $1.8 million award Ventura won against the Kyle estate last year.

On July 20, 2014, a Minnesota jury returned a verdict in a defamation lawsuit and awarded damages of $1,845,000 to the plaintiff. The verdict followed a 10-day trial in which the plaintiff claimed his reputation had been permanently damaged by lies told by the defendant in a popular book.

According to the book, the author acted to defend the honor of a group of deceased Navy SEALs by punching the plaintiff, knocking him to the ground. The plaintiff admitted being in the bar but insisted the whole event never happened. The 10-person jury —split 8-2 decision —agreed with the plaintiff.

Chris Kyle said in his bestselling 2012 book, American Sniper, that he punched an unidentified celebrity in a bar after an altercation provoked by the celebrity’s disrespectful comments about the recent deaths of a group of Navy SEALS. Kyle wrote that while discussing the deaths, the unidentified celebrity said the SEALS “deserved to lose some” for their actions in the war. Kyle did not identify the celebrity in the first printing of the book, but in media interviews later said it was former Minnesota Governor Jesse Ventura. A former pro wrestler, actor, and commentator, Ventura was at the bar celebrating with new SEALs following his speech at their graduation from BUDs (Basic Underwater Demolition) Training.

But even though Ventura proved in court that local Texas hero Chris Kyle, the American Sniper, lied about him, this case shows the pitfalls of bringing a defamation lawsuit. Since the trial, Ventura has taken a media pounding. Why is that? (And why are lawyers not rising up to defend the man who played by the rules and won fair and square in a court of law?) What is so offensive about Ventura pursuing his legal rights in the court system?

People have attacked the money damages awarded to Ventura, even though most, if not all, of the money will be paid from the publisher’s libel insurance. The jury awarded only $500,000 for direct damages to Ventura, money he lost as a result of the lies about him. But $1.345 million was awarded pursuant to an “unjust enrichment” claim – essentially a disgorgement of money Kyle improperly earned from the lies. And the evidence to support this unjust enrichment claim was considerable, as reported by Mark Joseph Stern in the online publication Slate :

“Ventura’s attorneys uncovered records of HarperCollins’ negligence in fact-checking Kyle’s book, as well as evidence that HarperCollins specifically touted the Ventura story to drum up publicity. Kyle’s ghostwriters spoke with only one person who claimed to have witnessed the fight, a friend of Kyle’s who told a different version of the story that lacked Ventura’s offensive remarks. No one from HarperCollins contacted Ventura or his representatives to verify the story. And though Kyle claimed Ventura appeared at a SEAL graduation afterward with a black eye—where “everybody was laughing” and asking “Who beat the shit out of him?”—HarperCollins never asked a member of the graduating class whether they saw Ventura’s injury. (A photograph from the event shows a clear image of Ventura—with no black eye.)”

“Despite the tenuous source of the Ventura story, HarperCollins quickly saw it as a publicity gold mine. After Kyle identified “Scruff Face” as Ventura in a radio interview on The Opie & Anthony Show, HarperCollins editor Peter Hubbard wrote in an email that the publicity from the story was “priceless.” HarperCollins publicist Sharon Rosenblum described the Ventura kerfuffle as “hot hot hot,” immediately arranging for Kyle to retell the tale on The O’Reilly Factor. Sales of American Sniper—which, up to that point, were fairly modest—spiked dramatically, apparently in conjunction with interest in the Ventura story. After the O’Reilly appearance, Ventura publicly denied Kyle’s accusations. Yet Rosenblum arranged for Kyle to tell the story again on The Opie & Anthony Show, and HarperCollins printed several new editions of the book that still featured the “Scruff Face” section. (It was finally removed after Ventura won his suit.)”

Many say it is unseemly for Ventura to sue after Kyle’s untimely death at the hands of a Marine veteran he was helping through post-traumatic stress. Yes, Kyle’s death on a gun range in Texas in 2013 is sad, tragic, and imposes an unbearable emotional loss on his family. I get that. But the lawsuit was filed well before this tragic event. Should Ventura simply drop the suit and accept the financial loss in personal appearance fees and other income caused by Kyle’s lies? Did Clint Eastwood walk away from money owed to him for the movie because of this tragic death?

People have attacked Ventura for suing the widow, Taya Kyle. The truth is, however, he sued Mr. Kyle. Only in her capacity as representative of her late husband’s estate was Ms. Kyle a party. It’s a fine distinction in a media-fueled story like this, but one that should make a difference to lawyers.

People have expressed understandable sympathy for Ms. Kyle and her two boys, now growing up without a father. But is it cruel or improper to point out that she is far better off financially than most wives of fallen SEALs, even if she must pay Ventura. Kyle’s book royalties are estimated at $3-4 million, with even more money coming from the movie and other uses of his likeness and image. I hope the family profits handsomely from Kyle’s reputation, but if he damaged another individual, then he needs to be held accountable. One thinks of Lance Armstrong and the damage he caused and got away with because of his celebrity status. If Armstrong died at this point, should all of the lawsuits filed against him just go away?

The general public has rallied to the defense of Chris Kyle, even though he was known among the SEAL community as one who probably fabricated much of his reputation. Long before the book was published, even his kill numbers were suspect. Before his tragic murder in 2013, Kyle claimed that he killed two would-be carjackers in Dallas. When police questioned him about the shooting, he supposedly gave police a special “I can kill who I want” card with a number for the Department of Defense or the CIA. Kyle’s story was that they called and he went free – no record of the two deaths. Kyle also claimed that he shot looters in New Orleans from the top of the Superdome with a sniper friend. By the way, if that were true, why do we treat such a guy as a hero? A vigilante, shooting looters after Katrina, when the government abandoned them and looting was the only way to survive?

Jesse Ventura is a character entirely able to trash his own reputation. But the jury heard all about his reputation before reaching its verdict. He served with Navy Underwater Demolition Teams based in the Philippines in the 1970s during the Vietnam War, before the remaining UDTs were redesignated as SEAL Delivery Vehicle Teams in the 1980s. He has always taken pride in his connection to the SEALS and the UDT’s that preceded the SEALs. Now he lives with Kyle’s lie that he said some of them deserved to die. Now, he feels unwelcome at their gatherings and damaged by lies and his efforts to be compensated for the damage those lies have caused him. He has certainly lost in the court of public opinion. But shouldn’t lawyers be defending his pursuit of his legal rights through the court system?