Everyone knows Covington Catholic High School’s Nick Sandmann sought $250 million in a lawsuit against major news organizations and individuals within their realms. Word that he settled with CNN in January and with the Washington Post last week has raised questions about how much he actually won. Lawyers who have observed the litigation have almost universally agreed it was not anywhere close to $250 million. (The official settlement amount remains confidential.)
“If you believe this kid got anything more than a nuisance fee settlement, you’re dreaming,” said national security law attorney Bradley P. Moss.
If you believe this kid got anything more than a nuisance fee settlement, you’re dreaming. https://t.co/wKN7skDvai
— Bradley P. Moss (@BradMossEsq) July 27, 2020
“Those with zero legal experience (as far as I can tell) should not be conjecturing on lawsuits they know nothing about,” said attorney Mark Zaid. “What kind of journalism is that?”
“I’ve litigated defamation cases. Sandman was undoubtedly paid nuisance value settlement & nothing more,” he added.
Those with zero legal experience (as far as I can tell) should not be conjecturing on lawsuits they know nothing about. What kind of journalism is that?
I’ve litigated defamation cases. Sandman was undoubtedly paid nuisance value settlement & nothing more. https://t.co/pcBebNwcyb
— Mark S. Zaid (@MarkSZaidEsq) July 27, 2020
Zaid’s comments on Twitter linked back with wholehearted approval to a thread by the officially unnamed Twitter writer @RespectableLaw, who went on a rant late Sunday night/early Monday morning about the amount of money Sandmann likely wound up receiving.
Spot on legal and policy analysis by @RespectableLaw of recent settlement with @washingtonpost. Based on my legal experience, including handling #defamation cases, I agree with it. https://t.co/My6XeVaGEG
— Mark S. Zaid (@MarkSZaidEsq) July 27, 2020
Here’s the analysis which is being cited favorably by Zaid, Moss, and others on legal Twitter. It ends (TL/DR) with a supposition — an opinion — that Sandmann may have ended up with a ballpark guess of about $50,000. That’s a far cry from his original asking price of $250 million.
When asked about the thread, Lin Wood, an attorney for Sandmann, told Law&Crime he made it his “practice not to respond to uninformed, errant nonsense.” He noted that the settlement was confidential and that he could not comment on it, but said “questions about confidentiality and the timing of the settlement will have to be directed to others.”
The Twitter thread in question posits that though a judge tossed most of Sandmann’s case, the few remaining claims that remained would not have survived discovery. But since the claims were allowed to remain alive, it would have cost $200,000 or so to defend them. That’s why an insurance carrier, in this supposed version of events, probably threw a lowball offer to prevent spending even more to get the entire case tossed. In other words, the settlement was a business decision that had nothing to do with the merits of Sandmann’s case. Here are the legally relevant portions of the thread, with almost all of its twists and turns of defamation litigation included:
So a lot of people seem to think Sandmann won a meaningful amount of money, but every part of this, from the procedural history, the timing, the announcement, the relevant law, all of it confirms Sandmann was paid mere nuisance value.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
First, let’s look at the announcement: pic.twitter.com/enZlSiKcds
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Right off the bat, it’s clear this isn’t the kind of the statement you would make if you just scored a big pay-day off the Post. This is a statement trying to justify why Sandmann bowed out. And notice the reference to the correction. That will be important later.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
So dial back the clock a few months ago. At first, the judge in the case dismissed all 33 of Sandman’s claims against the Post, finding no possibility of prevailing. Sandman’s counsel made a plea for reconsideration.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
In a second order, the judge agreed to restore three of Sandman’s claims because it was still theoretically possible he could prevail if certain evidence was discovered. Those three claims involve statements about blocking Phillips: pic.twitter.com/rgj67oRQQY
— Respectable Lawyer (@RespectableLaw) July 27, 2020
The problem with those three claims is that they are based on statements Nathan Phillips made to the Post, which reported his words. That’s why discovery is needed on the context. Because absent something really weird, newspapers can generally report what third-parties say.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Sandmann would have to find evidence that at the time of the initial video, no newspaper would have published Philip’s account. In other words, Sandman had to disprove the Post’s “good faith reliance” on a third-party’s account. As the Post argued: pic.twitter.com/pokdmVfdxb
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Under this defense, a newspaper can report what a third-party said unless it knew the third-party was lying or if the newspaper knew the third-party was so chronically unreliable that nobody would ever believe them about anything.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
As the judge noted, it was technically possible for Sandmann to prevail if he could prove the Post knew Nathan Phillips was lying, or if the Post knew Nathan Phillips was a known liar: pic.twitter.com/C1SOXaZyv9
— Respectable Lawyer (@RespectableLaw) July 27, 2020
So assume for a moment Sandmann could prove that what Phillips said wasn’t “substantially true” in the legal sense – i.e., his path of travel wasn’t blocked. He would still have to prove the Post knew Phillips was lying about being blocked by the teens.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Alternatively, Sandmann must prove the Post knew Phillips was “chronically unreliable,” which is nearly impossible, especially considering Phillips was unknown to the Post at the time of the reporting.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
You have to show the publisher possessed information showing multiple documented lies in a recognizable pattern. And you have to show the Post ACTUALLY possessed information about Phillips, not that it SHOULD have possessed it.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
So this is functionally impossible with Phillips because a history of past crimes or bad acts won’t do it, only repeated documented lies on similar matters. And it’s also obvious the Post knew nothing about Phillip’s past at all on the day this happened anyway.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
A weird feature of defamation law is that it frequently rewards willful ignorance and a failure to investigate, at least on these kind of subjective knowledge questions. I don’t think it’s the way the law should be, but it is. You must prove the Post knew.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
But let’s assume Sandmann could clear this series of increasingly impossible hurdles. The problem is the Post’s correction that Sandmann’s attorney mentioned. Why is that important?https://t.co/aq3sOU72I0
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Because like most states, Kentucky (where the suit was filed) has a law prohibiting any punitive or exemplary damages when a newspaper publishes a correction in response to a person’s demand for retraction.https://t.co/DrG5axy8rd
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Technically, you could still recover punitive or exemplary damages if you prove The Post committed actual malice, but it’s well understood that actual malice is the kiss of death for a lawsuit, especially in breaking new stories. Zero chance of malice here.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
So even assuming Sandmann could clear each impossible hurdle, he would only be able to recover actual damages. And discovery would likely prove Sandmann had little to none. By all indications, he is doing ok, and in fact has become a beloved micro-celebrity in MAGA world.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
So when Sandmann was given the chance to make document requests and take testimony from the Post and submit himself for testimony, he chose not to go forward.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
The Washington Post is insured by a commercial insurance carrier, and I have sued commercial carriers my entire career. They are not settling a case for any significant amount of money without a deposition of the plaintiff.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
There’s many reasons for this, most notably that you can’t accurately gauge your exposure until you understand the plaintiff and what their damages are. Not to mention that when a lawsuit collapses into dust, 90% of the time it happens in the plaintiff’s deposition.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Here, that collapse had already happened. Who cares what admissions you can secure in a plaintiff’s deposition when his case has been rendered worthless and he’s willing to exit for nuisance value?
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Nuisance value is determined by how much it would cost to defend the suit until dismissal. The Post knows it will win on this issue, but also knows Sandmann could cause it incur expenses by litigating until summary judgment happens.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
In this situation, I’d estimate the legal fees incurred by the insurance company if they conduct discovery on this issue and then argue summary judgment is on the magnitude of $200,000.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
So a settlement in that situation needs to be quite a bit below $200k for the carrier to be financially incentivized to provide Sandmann a graceful, confidential exit from the suit that saves face. $50k is a good guess.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
After a few slams against Sandmann’s lawyer, the analysis continued as follows:
So here is the most likely way this went down: The judge’s order restored three claims, but those claims are impossible to prove and can’t produce meaningful damages. So the insurance carrier’s lawyers send Wood a letter.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
It says: “We both know you can’t prove these claims and will lose at summary judgment. And even if you could win, you’d lose at trial. And even if you could win there, there are no punitive damages. But you also know it will cost us $200k to defend this case, even more at trial.”
— Respectable Lawyer (@RespectableLaw) July 27, 2020
“So we’ll make you a deal. We’ll give you $50k on these worthless claims just to get you out of our hair. The amount stays confidential, so you get to save face in public and people will think you won something.”
— Respectable Lawyer (@RespectableLaw) July 27, 2020
“But when we announce this, if you say anything publicly that even implies that we paid a lot of money, the deal is off.” Which explains Sandmann’s attorney downplaying the Post’s level of fault in his announcement.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
And because he knows other trial lawyers watching these events will know exactly what transpired, and they will know the Post paid nuisance value. So you have to explain yourself and save face there as well, from a professional reputation standpoint.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
You also have to remember that Lin Wood gets 33%-40% of that in legal fees along with his expenses (and imagine what kind of expenses you get charged by the QAnon guy), making it likely Sandmann got next to nothing.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
The writer suggested that the press inappropriately covered the settlement by failing to account for all of the above:
The theme of this coverage should have been: “With his case hanging by a rapidly unraveling thread, the Covington kid decides to call it quits.” Instead, because media has been gutted, a huge portion of people think Sandmann is on his way to becoming a billionaire.
— Respectable Lawyer (@RespectableLaw) July 27, 2020
Wood, the attorney for Sandmann, had a warning for the remaining defendants in an email to Law&Crime:
After investigating the narrative of Nathan Phillips, the Post published an Editorial Note admitting that Phillips’ narrative was false and could not be substantiated.
The truth of the investigative findings of the Post should not be lost on the media defendants in the pending lawsuits. If the remaining defendants do not admit that Phillips’ narrative was false, their refusal will be at their own peril.
I commend publication of truth. I condemn publication of lies.
[image via YouTube screengrab]
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