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Former Minnesota Gov. Jesse Ventura, accompanied by his attorney, David Bradley Olsen, addressed the media last October after oral arguments before the 8th U.S. Circuit Court of Appeals in St. Paul. (File photo: Mike Mosedale)

In Ventura ruling, experts see no clear victory

Is Jesse Ventura going to move to Mexico for good now?

That’s one of many unanswered questions in the wake of Monday’s decision out of the 8th U.S. Circuit Court of Appeals tossing out the $1.8 million jury award in Ventura’s lawsuit against the estate of the late Chris Kyle, the former Navy SEAL and author of the best-selling memoir turned movie, “American Sniper.”

Following the oral argument before the three-judge panel in St. Paul last October, Ventura told reporters he’d leave the U.S. if he lost on appeal because, he explained at the time, “I don’t think I’d want to live in a country where you can profit from wrongdoing.”

Of course, Ventura can stick around and still remain true to his vow, since the panel’s decision doesn’t necessarily end the long-running legal fight over Kyle’s much-disputed account of his alleged bar brawl with Ventura.

But does Ventura have the appetite to go through another trial? Will he seek en banc review from the 8th Circuit or maybe even try his luck with a long-shot petition to the U.S. Supreme Court?

Or will he just quietly try to work out a settlement with Kyle’s estate and book publisher, HarperCollins?

So far, nobody in a position to know is talking.

David Bradley Olsen, Ventura’s longtime counsel and partner at Henson & Efron, didn’t respond to two calls seeking comment. John Borger, the Faegre Baker Daniels litigator who represented the Kyle estate at trial, deferred comment to a HarperCollins executive, who also remained mum.

In the view of some outside observers, the 8th Circuit’s decision leaves all options open. And while the court’s decision comes as a blow to Ventura, they say, it’s far from a definitive victory for the defense.

In its 26-page decision, the three-judge panel unanimously threw out the jury’s $1.3 million award for unjust enrichment, ruling that the claim failed as a matter of Minnesota law because there was no pre-existing contractual relationship — implied or otherwise — between Ventura and Kyle.

Many expected that outcome because, in the context of defamation, the unjust enrichment claim was without precedent. In essence, Ventura argued that Kyle’s bogus account of the bar brawl was what propelled “American Sniper” to the best seller list.

But in vacating the $500,000 award for defamation, the court homed in on a finer point of law and, in so doing, left Ventura with more breathing room.

Rather than definitely rejecting the defamation verdict, the 2-1 majority said the claim needed to be retried because of improper references to HarperCollins’ insurance coverage. (During closing arguments, Olsen, Ventura’s attorney, told the jury that the insurer “is on the hook if you find that Jesse Ventura was defamed.”)

“I was hoping that they would reverse the defamation claim as a matter of law, concluding that the evidence on the record was not sufficient to prove actual malice by clear and convincing evidence,” observed Mark Anfinson, a First Amendment lawyer in Minneapolis who tracked the case. “But they didn’t touch that issue. Instead, they went to this highly esoteric debate about references to insurance coverage and when certain objections were made by the attorneys, which really wasn’t very satisfying.”

If Ventura decides he wants to retry the case, Anfinson noted, it would go before U.S. District Court Judge Richard Kyle, who has already ruled that the question of actual malice should be left to the jury.

“The Ventura people will be disappointed [by the 8th Circuit’s decision] because they had money in hand and now it’s gone. But they live to fight another day and they’ve got a little better battlefield,” Anfinson said.

And while the jury in the first trial awarded Ventura $500,000 for the defamation claim, Anfinson pointed out, another jury could be much more — or much less — generous.

“I’ve learned the hard way over the years that defamation damages are a complete crapshoot when actual malice is the standard,” Anfinson ventured. “If the jury finds actual malice, it gets to pick any number it wants. So when you combine that uncertainty with all the attorney fees, this is something short of a complete and resounding victory [for the defense].”

Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota, said the court’s decision gives both sides incentive to negotiate a settlement.

“If I were in his [Ventura’s] place, I would say maybe it’s time to talk settlement, cut my losses and go home,” said Kirtley, who was one of the signatories on an amici brief from the First Amendment scholars urging the court to toss out the verdict.

If the case is retried, she noted, both sides will have a better idea of how to present their respective arguments but that won’t make the litigation any less expensive.

“Unlike Hulk Hogan, Jesse Ventura doesn’t have someone bankrolling his case for him,” said Kirtley, making reference to Hogan’s invasion of privacy/sex tape lawsuit against the online media company Gawker.

That suit, which culminated with a $140 million verdict, was financed by Silicon Valley billionaire Peter Thiel.  By contrast, Ventura has said he has paid out of pocket for his litigation, to the tune of $1 million so far.

Because the Hogan verdict reflects the willingness of juries “to demonstrate their anger with media” by handing out huge awards, Kirtley said, it also provides some settlement incentive for HarperCollins.

Still, Kirtley wouldn’t be surprised if Ventura seeks en banc rehearing from the 8th Circuit.

As to the other options, Kirtley opined that it is unlikely that the U.S. Supreme Court would have much interest in taking Ventura’s case. In the main, she said, that’s because the big-ticket item — the $1.3 million unjust enrichment award — turns on a question of Minnesota law that probably would not hold much interest for the high court.


About Mike Mosedale

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