American Sniper Discussion

There’s been a lot of talk about Ventura v. Kyle, Captain Freedom’s Jesse Ventura’s lawsuit against Chris Kyle (AKA American Sniper). Certainly, it appears odd that a public figure like Jesse Ventura would sue a widow for such a large amount of money. But, maybe you’ll feel different if you look at some facts.

First off, I’m no expert on this case. PACER (the place you can go to get Federal court documents) has 421 docket entries for this case. It’s been heavily litigated. There’s lots of money at stake, and it certainly appears as though Chris Kyle (at first… and now his widow) have paid lots of money to their attorneys. Perhaps a publishing company is paying for the defense. I don’t know.

But, here are some details. First, Jesse Ventura sued Chris Kyle asserting claims of defamation, misappropriation, and unjust enrichment.

Essentially, Ventura’s argument was that if you (allegedly) lie to promote something, then the profits you make off of the (alleged) lie unjustly enrich you, and you are therefore not entitled to such enrichment. In my view, after reading the court opinion, the case feels more like bad business behavior than a malicious lawsuit against a widow because her deceased husband told a lie.

I think it is helpful to read a few paragraphs from the Court’s Order adopting the Jury Verdict:

American Sniper went on sale Tuesday, January 3, 2012. (Trial Tr. at 1824.) Before it went on sale, there had been approximately 3,400 preorders of the book, which the publishers considered “tremendous.” (Id. at 1819; Def. Ex. 264.) HarperCollins had not expected the book to be a best seller because Kyle was an “unknown author.” (Trial Tr. at 1819.) Chris Kyle was scheduled to do a publicity tour for the book beginning January 3. On Wednesday, January 4, he appeared on the Opie & Anthony radio show. About twenty minutes into the show, a listener called in and asked about whether Kyle had punched Ventura. (Pl. Ex. 100.) Opie and Anthony responded with enthusiasm and Kyle’s publicist, Sharon Rosenblum, agreed the show “got lively” at that point. (Trial Tr. at 1826.) She was pleased with Kyle’s performance and considered it a “hit interview.” (Id. at 1828.)

The next day, January 5, the book rose to number 21 on Amazon’s best-seller list. (Id. at 1829.) The editor, Peter Hubbard, emailed Rosenblum and others a link to a Fox News story captioned “Navy Seal Punched Out Jesse Ventura,” remarking it was “priceless.” (Id. at 1829; Pl. Ex. 102.) Rosenblum responded that Kyle had been invited to appear on Fox and Friends again to tell this story and called it “hot hot hot.” (Trial Tr. at 1830; Pl. Ex. 102.) That evening, Kyle’s interview on The O’Reilly Factor aired, which both Rosenblum and Hubbard testified was an important interview. After introducing Chris Kyle and his book, O’Reilly’s first question to Kyle was about getting in a fight with Ventura. (Trial Tr. at 1832; Pl. Ex. 103.) In other words, O’Reilly chose to lead with the Ventura story—not Kyle’s record number of kills or his fatal 2,100 yard shot.

On Friday, January 6, the day after the O’Reilly interview aired, sales rocketed and American Sniper went from number 21 to number 2 on Amazon’s best-seller list. (Trial Tr. at 1834.) The CEO of HarperCollins sent an email that day scheduling a reprint of 100,000 copies of American Sniper. (Id. at 1836–37; Pl. Ex. 315.) Hubbard responded, “Holy shit.” (Trial Tr. at 1837; Pl. Ex. 315.) Rosenblum sent out a “News Flash” on American Sniper to the HarperCollins sales team for distribution to their accounts, which linked to a Fox News story about the Ventura story and to a clip of the Opie & Anthony show in which Kyle discussed Ventura. (Trial Tr. at 1840; Pl. Ex. 295.)

By the weekend, the book was the number 1 seller on Amazon and Barnes & Noble. (Trial Tr. at 1834.) The head of sales sent an email with the subject line “Number 1 both Amazon & bn.com” that said “Thank you Mr. O’Reilly.” (Id. at 1835; Pl. Ex. 104.) Kyle was invited back onto the Opie & Anthony Show on January 10 to discuss the Ventura story further. (Trial Tr. at 1849–50; Pl. Ex. 113.) By January 11, Rosenblum described the sales of American Sniper as “astonishing.” (Trial Tr. at 1855.) By January 22, the book was number 1 on the New York Times best-seller list, where it remained for many weeks. (Pl. Ex. 126) In June 2012, the film rights were optioned by Warner Brothers, which has since filmed a movie based on the book, directed by Clint Eastwood and starring Bradley Cooper. (Trial Tr. at 99–100; Pl. Exs. 130, 134.)

At trial, Hubbard estimated American Sniper had sold 1.5 million copies to date. (Trial Tr. at 1881.) At $26.99 per book, Ventura’s counsel estimated in closing argument that HarperCollins had made approximately $40 million off American Sniper sales. (Id. at 2038.) Kyle was entitled to 15% of the revenue (after the first $10,000) (Pl. Ex. 82), which would equal over $6 million in royalties to Kyle and his Estate to date (Trial Tr. at 2038). In addition, Kyle received more than $500,000 from the Warner Brothers contract to date. (Pl. Exs. 134, 135, 355, 356.)

After two weeks of evidence and more than five full days of deliberations, the jury returned a divided verdict (with the parties’ agreement, see Fed. R. Civ. P. 48(b)) of eight to two in favor of Ventura on defamation and unjust enrichment and in favor of Kyle on appropriation. The jury awarded Ventura $500,000 for defamation and $1,345,477.25 for unjust enrichment. Given how much media attention the Ventura story garnered and how book sales sky-rocketed after select media appearances in which Kyle recounted and discussed the Ventura story, the jury’s conclusion that Kyle was unjustly enriched by his story about Ventura was supported by a preponderance of the evidence. Likewise, its award of $1,345,477.25 was a reasonable portion (approximately 25%) of Chris Kyle’s and his Estate’s total profits to date and was supported by substantial evidence.

Here’s a copy of the Order Adopting Verdict.

A jury found that Ventura did not prove the misappropriation claim, but found that Ventura had proven the defamation claim. Here’s a copy of the Jury Verdict. The jury found that Ventura was entitled to $500,000 for the defamation claim and about $1.3 million for unjust enrichment.

In the order quoted above, the court adopted the jury’s recommendation (the defamation claim was before the jury, but the jury merely recommended an award for unjust enrichment.

Kyle’s estate suggested that the Jury got it wrong, and that the court should disregard the jury verdict and issue a “Judgment as a Matter of Law.” The court denied this request. Here’s a copy of the Court’s Order.

I understand that there are some appeals pending.

Lastly, you might find this article about Ventura v. Kyle on Slate interesting. This article suggests that HarperCollins’ libel insurance will cover the defamation damages and that, even if Ventura wins his (second) lawsuit agianst HarperCollins, Kyle’s widow – and HarperCollins – will walk away from this with a lot of money.

I am a former software engineer turned lawyer, practicing patent, trademark, copyright, and technology law in New Orleans, Louisiana with Carver Darden. You can read more about me, or find out how to contact me. You can also follow me (@NolaPatent) on Twitter, Google Plus, or Linked In. All content on this website is subject to disclaimer.

Posted in defamation
One comment on “American Sniper Discussion
  1. I remember this case. Defamation cases can get very expensive, especially if you lose. Now six months later and after the movie and book did so well, the Chris Kyle estate will handle the verdict with little problem.

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