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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Jesse Ventura, a/k/a James G. Janos,

v.

Plaintiff,

Taya Kyle, Executrix of the Estate of Chris Kyle,

Defendant.

Civil No. 12-0472 (RHK/JJK)

PLAINTIFF JESSE VENTURA'S STATEMENT OF TRIAL EXPECTATIONS

In accordance with the Court's March 18, 2014, Order for Trial (Doc. No. 267),

Plaintiff Jesse Ventura ("Ventura") submits the following as his Statement of Trial

Expectations:

1. We anticipate that it will take 8 days to present Ventura's case. Ventura and

his wife are both expected to testify, as are plaintiff witnesses Bill DeWitt, Charlene

DeWitt, Leonard Robertson and Wayne Leonard. Plaintiff also expects to play portions of

14 defense witness video depositions, including several hours each of decedent Chris

Kyle's and Executrix Taya Kyle's testimony. None of the defense witnesses can be

compelled to testify in Minnesota, and we have not been advised which of them, if any,

will voluntarily appear.

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2. It is anticipated that the entire trial, including jury selection, opening, direct

and cross-examinations, and closing, will take 12 days. It could, however, take longer if

defense witnesses choose to voluntarily appear and testify.

Dated:

507173.DOCX

April 21, 2014.

HENSON & EFRON, P.A.

By s/David Bradley Olsen

David Bradley Olsen, 197944 Court J. Anderson, 331570 John N. Bisanz, Jr., 0389098 220 South Sixth Street, Suite 1800 Minneapolis, Minnesota 55402-4503 Telephone: 612-339-2500 Facsimile: 612-339-6364 e-Mail: dolsen@hensonefron.com canderson@hensonefron.com jbisanz@hensonefron.com

Attorneys for Plaintiff Jesse Ventura, a/k/a James G. Janos

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Jesse Ventura, a/k/a James G. Janos,

v.

Plaintiff,

Taya Kyle, Executrix of the Estate of Chris Kyle,

Defendant.

Civil No. 12-0472 (RHK/SER)

PLAINTIFF JESSE VENTURA’S TRIAL BRIEF

PRELIMINARY STATEMENT

Plaintiff Jesse Ventura (“Ventura”) submits this Trial Brief in accordance with the

Court’s Order (Doc. No. 267). Following this Preliminary Statement are Ventura’s:

1. Statement of the Issues;

2. Summary of the Court’s Prior Rulings;

3. Summary of Facts Expected to be Proved at Trial; and

4. Discussion of the Controlling Law.

In brief, Chris Kyle (“Kyle”) wrote American Sniper, the Autobiography of the

Most Lethal Sniper in U.S. Military History. One of the stories in the book is about

Ventura. Kyle wrote that Ventura showed up at 2006 wake for a fallen Navy SEAL, and

in the presence of servicemen and their families proclaimed that SEALs serving in Iraq

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were murdering innocent women and children and “deserved to lose a few.” Kyle also

wrote that he confronted Ventura, punched him in the face and knocked him to the

ground, and that Ventura was later ridiculed because he showed up the next day at a

military graduation ceremony with a black eye. Coincident with the book’s January 2012

release Kyle also went on national radio and television to re-tell the story and, in

interviews about it, mocked and made fun of Ventura.

Because the story Kyle wrote and retold is not true, Ventura sued him for

defamation, misappropriation of name and likeness, and unjust enrichment.

Following

Kyle’s untimely death in February 2013 Kyle’s wife, Taya (“Ms. Kyle”), as Executrix of

the Estate of Chris Kyle (the “Estate”), was substituted as the defendant.

The evidence at trial will show that Kyle’s story is false, defamatory on its face,

and that Kyle published it with actual malice, i.e., that he either knew it was false or acted

with reckless disregard for the truth. The evidence will further show that Ventura’s

reputation has been virtually destroyed in the SEAL community where he once enjoyed a

position of respect and honor, and that Kyle and the Estate have been unjustly enriched

because the widespread media attention given to, and the ensuing controversy

surrounding the false story made the book a best seller.

STATEMENT OF THE ISSUES

1. Is the story Kyle wrote and retold about Ventura false?

2. Did Kyle publish and retell the story about Ventura with knowledge that it

was false or with reckless disregard for the truth?

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3. Did Kyle’s false and defamatory story damage Ventura’s reputation or

cause him to suffer humiliation and embarrassment?

4. Did Kyle appropriate Ventura’s name and likeness for his own use or

benefit without Ventura’s consent?

5. Were Chris Kyle and the Estate unjustly enriched?

6. What are Ventura’s damages?

SUMMARY OF THE COURT’S PRIOR RULINGS

A. THE DECEMBER 20, 2012, ORDER.

In its December 20, 2012, Order, this Court declined to grant summary judgment in

Kyle’s favor on Ventura’s claims for misappropriation of name and likeness and unjust

enrichment. Among other things, the Court explained that:

Kyle argues that he is entitled to summary judgment because his statements about

But this argument depends

entirely on his own version of the facts and ignores Ventura’s. His statements

are not protected by the First Amendment if they were knowingly false and defamatory, as Ventura claims.

Ventura are protected by the First

Kyle also argues that he is entitled to summary judgment because he did not appropriate Ventura’s identity for a commercial purpose. But this argument misses the mark because Ventura is not required to show a commercial purpose. Under Minnesota law, appropriation “is not limited to commercial appropriation.”

Kyle also argues that the unjust-enrichment claim is an impermissible attempt to

But Kyle

is mistaken to the extent he argues that the unjust-enrichment claim is merely duplicative of the defamation claim. Although they may stem from the same

underlying facts, recovery under the two claims is distinct—defamation relates to Ventura’s damage while unjust enrichment relates to Kyle’s benefit. 1

circumvent his First Amendment defenses to the defamation

1 ECF No. 125 at 5–6, 8 (bold emphasis added).

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B. THE MARCH 19, 2014, ORDER.

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In its March 3, 2014, Order this Court declined to grant summary judgment in the

Estate’s favor on Ventura’s defamation, misappropriation and unjust enrichment claims because

the evidence was sufficient for a jury to conclude that Kyle’s story is materially false. In

particular, the Court pointed out that:

Defendant asserts Kyle’s statements were substantially true and Ventura cannot

prove

Gotchey and the DeWitts, arguing their testimony does not pertain to the night in But viewing their affidavits in the context of the record as a whole, it appears more likely that Gotchey and the DeWitts were simply mistaken as to

the

The Court may reasonably infer from this evidence that

Defendant urges the Court to discount the affidavits of

Gotchey’s and the DeWitts’ statements describe the events of October 12th, not October 13th.

Ventura has also submitted corroborating photographs of himself at the

graduation ceremony the following day in which no injuries are visible,

in the face with such

force that he knocked him to the ground. Altogether, Ventura has proffered sufficient evidence upon which a jury could conclude that Kyle’s statements were

materially false. 2

despite Kyle’s allegation that he punched Ventura

The Court also concluded that the evidence was sufficient for a jury to find that Kyle

published his story with actual malice:

Defendant’s assertion that actual malice cannot be inferred from a false statement

But Kyle’s story

does not recount an ambiguous event. While it is possible Kyle could have misinterpreted Ventura’s comments to him and innocently published a false account of them, this reasoning does not apply to Kyle’s account of “punching out” Ventura. If Ventura proves that statement was false—that is, if a jury does not believe Kyle punched Ventura—it follows that Kyle fabricated

is only true if the statement relates to an ambiguous

. And if a jury concludes Kyle fabricated part of the story, it could

reasonably conclude he fabricated the rest of his story about Ventura. 3

2 ECF No. 269 at 8–10 (bold emphasis added).

3 ECF No. 269 at 11–12 (bold emphasis added).

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As an alternative to summary judgment the Estate asked the Court to limit Ventura’s

damages claims for misappropriation and unjust enrichment, arguing that he could not seek to

recover any revenues from the film adaptation of the book. The Court rejected that argument,

explaining that:

Defendant asserts Ventura should be allowed to recover (if at all) only proceeds

from the book American Sniper and not from the film

Ventura does not provide any specific evidence linking Warner Brothers’ interest in a film adaptation to the Ventura story, the Court does not find his claim for

damages too

dramatically increased book sales, it does not stretch logic to believe it could have

generated Kyle’s Warner Brothers

Although

If the Ventura story garnered publicity and

contract also. 4

SUMMARY OF FACTS EXPECTED TO BE PROVED AT TRIAL

A. THE PARTIES.

1. Jesse Ventura.

Jesse Ventura is the former Governor of the State of Minnesota, having served in

that capacity from 1999 through 2002; the former Mayor of Brooklyn Park, Minnesota,

having served in that capacity from 1990 through 1993; and is also a veteran of the

United States Navy, having served his country as a member of the Naval Special Forces

Underwater Demolition / SEAL Teams. Through and as a result of his accomplishments

in a career that has spanned more than four decades, Ventura has become well known to

the public throughout the United States as a professional wrestler, entertainer, actor,

speaker, author, and politician. He has created for himself a unique public personality

and image, and his professional names, “Jesse Ventura” and “Jesse ‘the Body’ Ventura,”

4 ECF No. 269 at 12 (bold emphasis added).

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as well as his image, voice, photograph, likeness, and public persona, have become

commercially valuable commodities.

Ventura comes from a military family: his father served in the United States

military during World War II and earned six Bronze Battle Stars; his mother served in the

United States military during World War II, as a nurse stationed in North Africa; and his

brother served in the United States military as a Navy SEAL during the Vietnam war. He

is very proud of his, and his family’s, military service, and he has nothing but the highest

regard for veterans of, and those currently serving in, the United States military.

Ventura’s service in the Naval Special Forces Underwater Demolition / SEAL Teams

was a defining experience in his life, and he has always believed that those with whom he

served, as well as those who preceded and followed him, deserve his and the nation’s

utmost respect and deepest gratitude.

As a member of the military, Ventura took an oath to “support and defend the

Constitution of the United States against all enemies, foreign and domestic,” and to “bear

true faith and allegiance to the same.” As Governor of the State of Minnesota, Ventura

took an oath “to support the Constitution of the United States and of this state and to

discharge faithfully the duties of his office to the best of his judgment and ability,” and he

was the “commander-in-chief of the military and naval forces,” vested with the power to

“call them out to execute the laws, suppress insurrection and repel invasion.” He has

always taken his oaths to defend and protect the Constitution of the United States from all

enemies very seriously, and he has always considered it a great honor to have had the

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privilege of serving his country, first, in the military, and, second, as the Governor of

Minnesota.

Over a period of many years, Ventura has maintained close friendships with his

former colleagues in the Naval Special Forces Underwater Demolition / SEAL Teams,

and he has on several occasions since his own discharge from the military attended and

spoken at Navy SEAL graduation and other ceremonies, where he has always been

treated with dignity and respect. Although Ventura has exercised his First Amendment

right to criticize government policy, and has been publicly opposed to the war in Iraq, he

has always supported America’s troops, and has never, and would never, wish them any

harm.

2. Chris Kyle, Taya Kyle, and the Estate.

Chris Kyle was a Navy SEAL sniper and the author of American Sniper, the

Autobiography of the Most Lethal Sniper in U.S. Military History. Kyle told his story to

co-author Jim DeFelice, who then drafted the manuscript. In the opening pages, Kyle

wrote that the “events that happened in this book are true.” The book was released

nationally, including in Minnesota, on January 3, 2012, by William Morrow, an Imprint

of HarperCollins Publishers, and it reached number one on the New York Times’

Bestseller list by January 29, 2012.

2012 .
2012
.

Warner Brothers purchased the movie rights in June

On February 2, 2013, Chris Kyle was tragically killed by fellow veteran Eddie

Ray Routh. Following the death of her husband, Taya Kyle filed a statement confirming

that she had accepted an appointment as the Executrix of his estate. On July 18, 2013,

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the Court granted Ventura’s motion to substitute Taya Kyle, Executrix of the Estate of

Chris Kyle, as Defendant.

B. CHRIS KYLE ADMITTEDLY PUBLISHED HIS DEFAMATORY STORY ABOUT VENTURA, REPRESENTING IT TO BE TRUE, AND THEN REPEATED IT ON TELEVISION AND RADIO.

1. Chris Kyle Publishes Defamatory Statements About Ventura in American Sniper.

Chris Kyle’s book American Sniper contains a sub-chapter captioned “Punching

Out Scruff Face,” which appears at pages 310 through 312. In the Scruff-Face

subchapter, Kyle recounts an alleged 2006 incident that occurred at a public bar and

restaurant in Coronado, California, in which Ventura appears at a wake for a fallen SEAL

and proceeds to tell all present that he hates America, that SEALs are murdering innocent

people, and that SEAL’s deserve to die; after which Kyle emerges as the hero when he

punches Ventura, knocks him to the ground, and gives him an embarrassing black eye.

The Punching Out Scruff Face sub-chapter reads, in its entirety, as follows:

AFTER THE FUNERAL WE WENT TO A LOCAL BAR FOR THE WAKE proper.

As always, there were a bunch of different things going on at our favorite nightspot, including a small party for some older SEAL’s and UDT members who were celebrating the anniversary of their graduation. Among them was a celebrity I’ll call Scruff Face.

Scruff served in the military; most people seem to believe he was a SEAL. As far as I know, he was in the service during the Vietnam conflict but not actually in the war.

I was sitting there with Ryan and told him that Scruff was holding court with some of his buddies.

“I’d really like to meet him,” Ryan said.

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“Sure.” I got up and went over to Scruff and introduced myself.

“Mr. Scruff Face, I have a young SEAL over here who’s just come back from Iraq. He’s been injured but he’d really like to meet you.”

Well, Scruff kind of blew us off. Still, Ryan really wanted to meet him, so

I brought him over. Scruff acted like he couldn’t be bothered.

All right.

We went back over to our side of the bar and had a few more drinks. In the meantime, Scruff started running his mouth about the war and everything and anything he could connect to it. President Bush was an asshole. We were only over there because Bush wanted to show up his father. We were doing the wrong thing, killing men and women and children and murdering.

And so on. Scruff said he hates America and that’s why he moved to Baja California. 9/11 was a conspiracy.

And on and on some more.

The guys were getting upset. cool it.

Finally, I went over and tried to get him to

“We’re all here in mourning,” I told him. down.”

“Can you just cool it?

Keep it

“You deserve to lose a few,” he told me.

Then he bowed up as if to belt me.

I was uncharacteristically level-headed at that moment.

“Look,” I told him, “why don’t we just step away from each other and go on our way?”

Scruff bowed up again. This time he swung.

Being level-headed and calm can last only so long. I laid him out.

Tables flew. Stuff happened. Scruff Face ended up on the floor.

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I left.

Quickly.

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I have no way of knowing for sure, but rumor has it he showed up at the BUD/S graduation with a black eye.

The quoted passage from American Sniper contains matters of description, facts,

and circumstances sufficient for readers to infer that Kyle was referring to Ventura,

including: the “Scruff Face” reference to his famous facial hair; his status as an “older”

“celebrity” former UDT / Seal who served during the Vietnam war; his winter home in

Baja California (Mexico); his opposition to the war in Iraq; the 9/11 “conspiracy” about

which he has talked and written; and his having been the speaker at BUD/S graduation

ceremonies. Kyle has admitted both to providing the content for the Scruff Face sub-

chapter, and to doing national television and radio interviews about it during which he

repeated the story.

2. Chris Kyle Repeats the Defamatory Statements in Radio and Television Appearances.

On January 4, 2012, Kyle appeared on the Opie & Anthony radio show:

HOST: There's someone on the line saying that you had—you were in a bar fight with Jesse, Ventura. Is that true?

HOST: What.

CHRIS KYLE: God.

HOST: It’s probably—is it?

CHRIS KYLE: Yes.

HOST: Oh, sh

(expletive deleted).

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HOST: Oh, let’s get into this.

HOST: Yeah, I would like to.

HOST: Can we talk about it?

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HOST: I was going to ask you how you felt about it, actually.

* * * HOST: What happened in the bar?

HOST: Yeah, what happened? You were in a bar and—

HOST: Oh, Jesus.

CHRIS KYLE: We, ah, we had just come back from our ‘06 deployment when we lost our guys. We were having a wake for the guy who got the Medal of Honor, Mikey Mansoor. And he happened to be there. He was coming in for a graduating BUDs class that he was going to speak to. And he was upset with the war. He doesn't agree with it, which is fine. I—you don't have to agree with the war. I just get sent there. I don’t have to agree with politics. I signed up to serve the country; the country tells me what to do.

HOST: Uh-huh.

CHRIS KYLE: But he was making it known that he did not agree with it. And I approached him and said, “Hey, you know”—

HOST: It’s not the place.

CHRIS KYLE: —“I appreciate it, but we are having a wake.” It was the SEAL bar there in town. I said, “We're having the wake here. The family is here. I would appreciate it if you'd just kind of keep it down.” He told us that we were killing innocent people over there—

HOST: Oh, f

(expletive deleted).

CHRIS KYLE: —men, women and children. That we were murderers. And, you know, I said, “You know what, we can all have our differences, that’s—that’s fine; but, please, just don’t upset the family.”

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HOST: Yeah.

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CHRIS KYLE: And then he said that, you know, we deserve to lose a few guys.

HOST: Holy sh

(expletive deleted).

HOST: Jesse said that?

CHRIS KYLE: Yes.

HOST: What the f

(expletive deleted) is wrong with him.

HOST: So, by the way, all you guys out there that attacked me because I

f ing (expletive deleted) attacked him, good, I’m glad to hear that. He really is a douche. And what happened when he said that to you?

CHRIS KYLE: I punched him.

HOST: Did you grab his ponytail?

CHRIS KYLE: No, I punched him.

* * *

HOST: Where did you punch him?

HOST: Bravo.

CHRIS KYLE: In the face.

HOST: What happened?

HOST: That's when you take a head shot.

CHRIS KYLE: I mean, Jesse Ventura, he’s—

HOST: Big man.

CHRIS KYLE: —he’s an older guy, too.

HOST: Yeah, he’s an older guy.

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CHRIS KYLE: Of course all the guys then started making fun of me. “So what geriatric” (inaudible)—(Laughter.)

HOST: Wait. When you hit him, did he hit you back, or

CHRIS KYLE: No, he—he went down.

* * *

HOST: Did his walker fall with him?

CHRIS KYLE: Yeah, I think he fell out of his wheelchair.

HOST: Wow. Wow. He went down.

HOST: You hit a big dude. He’s a—he’s still Jesse the Body. I mean, he’s an older guy, but he’s still a big strong guy.

HOST: Did he awkwardly get up and have to walk out of the place?

CHRIS KYLE: I don’t know. I took off running, because the cops were already outside. And as soon as I hit him, I knew, SEAL party, SEAL bar, cops were watching, they saw the whole thing happen. So I took off running.

HOST: Oh, yeah. So Jesse Ventura said to a SEAL at a bar where there was a wake for a SEAL: “You deserve to lose a few guys”?

HOST: Yeah.

CHRIS KYLE: Yes, he did.

On January 5, 2012, Kyle appeared on the O’Reilly Factor on FOX TV:

MR. O'REILLY: Personal story segment tonight: Chief Chris Kyle, a Navy SEAL, is officially the most lethal sniper in U.S. military history. The Chief has written a brand new book called American Sniper, that chronicles his amazing story in Iraq. I spoke with him last night. So, Chief, I read your book. Very entertaining. I recommend it for my audience. I think they'll like it. First of all, you say you knocked Jesse Ventura to the floor with a punch. Now, you don't mention his name, but

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everybody knows who that is. Number one, that—that happened? You knocked him out?

MR. KYLE: Well, I knocked him down.

MR. O'REILLY:

Ventura?

Knocked him down.

Why?

Why would you punch

MR. KYLE: It was in '06. Was the year we lost our first two SEALS in Iraq. We came home. We lost our last guy just before coming home. We had the wake in a SEAL bar there in Coronado. And he was there. He was there for a speaking engagement at a BUD ceremony, graduating class—

MR. O'REILLY: Because he was a SEAL, right?

MR. KYLE: Yes, sir.

MR. O'REILLY: He was a Navy SEAL. So he was badmouthing the war, right?

MR. KYLE: Badmouthing the war, badmouthing Bush, badmouthing America.

MR. O'REILLY: And you took exception?

MR. KYLE: I did find a problem with it. The family was there. I asked him to please tone it down, that we did not want to upset the family members of Mikey Mansoor.

MR. O'REILLY: Who was killed?

MR. KYLE: Yes, sir. And he earned the Medal of Honor. He jumped on a grenade and saved everybody else around.

MR. O'REILLY: But I want to be clear. Ventura wasn't attacking him at all, verbally bashing him; he was just bashing the whole thing in general?

MR. KYLE: Yes, sir.

MR. O'REILLY: All right.

MR. KYLE: Until he said we deserve to lose a few guys.

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MR. O'REILLY: He said we deserve to—we, the United States—

MR. KYLE: No. He said, “You, y’all, deserve to lose a few guys.”

MR. O'REILLY: Navy SEALS.

MR. KYLE: I—I’m assuming. He was saying that to me.

MR. O'REILLY: Was he drunk?

MR. KYLE: No, sir. I never saw him with a drink in hand at all.

MR. O'REILLY: So once he said, “You deserve to lose a few guys,” you popped him?

MR. KYLE: Yes, sir.

MR. O'REILLY: Did he fight back?

MR. KYLE: He went down. The cops were there, I took off running.

MR. O'REILLY: You ran?

MR. KYLE: Yes, sir.

MR. O'REILLY: Did they arrest you?

MR. KYLE:

No, sir.

I—I have a master chief that always said, “Punch

and run.”

On January 10, 2012, Kyle appeared on the Opie & Anthony radio show for the

second time:

HOST: What exactly happened, Chris? If you could just refresh, because a lot of people might not have heard you on that moment. Just if you could give us a brief—just kind of sum the story up so people know what we're talking about.

MR. KYLE: It was the wake for Mikey Mansoor, and of course all the families were there. He was there. He started getting loud and voicing his

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opinion coming out against the war and the troops and everything. So we asked him to keep it down. And he got belligerent about it, and finally said we deserve to lose a few.

* * *

HOST: Now, Chris, is it possible that you and Jesse were arguing or you were debating and he said something to the effect of it's only natural you're going to lose a few? Are you 100 percent sure that he said it and with the intention that you heard it?

MR. KYLE: No. I feel that (inaudible) he said exactly what I thought I heard. Them other guys that were standing right there—

HOST: Oh, they heard it as well?

MR. KYLE: —exact same way.

* * *

HOST: Chris, there’s no doubt in your mind you punched Jesse Ventura that day, right?

MR. KYLE: Yes, sir, definitely.

Kyle’s interviews on Opie & Anthony and the O’Reilly Factor have been

broadcast and made available on the Internet, including in Minnesota.

C. KYLE’S STORY ABOUT VENTURA IS A FABRICATION.

1. The “Incident” Did Not Happen.

Ventura will testify that Kyle’s story about him is false because the incident

described by Kyle did not happen—it is a complete fabrication. The evidence presented

at trial will show that the following sequence of events took place in October 2006:

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Ventura arrived in San Diego, California on the evening of Thursday, October 12, 2006, and at 7:29 p.m. rented a car at the San Diego airport.

Ventura and his BUD/S Class 58 classmates were scheduled to attend an “informal gathering” at McP’s Irish Pub on the evening of Thursday, October 12, 2006.

BUD/S Class 258 was scheduled to graduate the following day, Friday, October 13, 2006, at 3:00 p.m.

Ventura and several of his BUD/S Class 58 classmates attended the graduation.

The next day, Saturday, October 14, 2006, they attended a picnic.

Ventura was scheduled to return his rental car to the San Diego airport on Sunday, October 15, 2006, at 11:00 a.m.

Bill DeWitt, a corporate security director in the private sector who has served as a

Navy SEAL, Army Ranger, Green Beret and, for 23 years, as an Army counter-

intelligence officer, was with Ventura the entire time he was at McP’s in October 2006,

and is certain that the incident Kyle wrote about did not happen. DeWitt will testify that:

(i) there were no hostile words or gestures exchanged by anyone; (ii) Ventura did not say

anything to anyone at McP’s to the effect that SEALs are murdering innocent people or

SEALs deserve to die or to lose a few; (iii) Ventura would never wish harm on any

American serviceman, and would never say that SEALs, in particular, deserved to die;

(iv) neither Kyle nor anyone else punched Ventura; (v) there was no altercation or

incident; and (vi) Kyle’s story about Ventura is a fabrication. DeWitt’s wife, Charlene,

will testify similarly, and add, contrary to Kyle’s claims, that she heard Ventura say, “I

don’t think the war is worth one SEAL dying for.”

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Robert Leonard, who was also with Ventura at McP’s on October 12, 2006, will

additionally testify that he never saw Ventura have an argument or altercation with

anyone at McP’s, nor heard him say anything offensive or upsetting to anyone. And both

Leonard and Wayne Robertson will testify that on the days following the McP’s

gathering, they saw no indication that Ventura had been punched, nor was there any

discussion amongst the various McP’s attendees that Ventura had caused a scene or had

been involved in a fight. They will both further testify that Ventura would never say

SEALs deserve to die.

Date-stamped photographs taken by DeWitt and Leonard will demonstrate that

Ventura and his friends were at McP’s on the evening of October 12, attended the BUD/S

graduation on October 13, and attended a picnic on October 14. The photographs show a

smiling Ventura at McP’s on the evening of Thursday, October 12, 2006, with his arm

around SEALs of Kyle’s approximate age. Other photographs depict Ventura on Friday,

October 13, 2006, at the BUD/S Class 258 Graduation, and at the Saturday, October 14,

2006, BUD/S Class 58 picnic. Although Ventura was taking blood-thinning medication

at the time of the alleged incident at McP’s, none of the photographs show Ventura with a

black eye, a bruised or bloodied lip, or otherwise exhibiting any physical effects of

supposedly having been punched directly in the face by a 220-pound trained killer.

2. Kyle’s Story is Not Credible.

Over the years, Kyle told multiple versions of the alleged incident involving

Ventura. Below are several versions of the fabricated story Kyle has told.

(a) The Story Kyle Originally Told Co-Author DeFelice in 2011.

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In 2011, American Sniper co-author Jim DeFelice recorded an interview with

Kyle. Kyle said

that Ventura “got loud about President Bush was an a--hole, we were

doing the wrong thing, we’re killing men and women and children and murdering and

doing all this sh-t

and he told me that we deserve to lose a few.” “And then he bowed

up, and then [I] knocked him down.”

Kyle explained that

“we were on the sidewalk

when I did it,”

and that he

“hit [Ventura] in the eye,” and that “he had at least one, I don’t

know if it was two black eyes or what the next day

he fell backwards and hit his head

he fell and hit the sidewalk

he didn’t get back up.”

Kyle then told DeFelice that

ran because “of course the cops were there

.” Kyle told DeFelice that

he knew Ventura

he
he

had a black eye because he saw him on TV three or four days later, and because Ventura

showed up at the BUD/S Class 258 graduation the next day and “everybody was

laughing” and asking “Who beat the sh-t out of him?

(b) The Story Kevin Lacz Told Co-Author DeFelice in 2011.

Kyle’s SEAL teammate, Kevin Lacz, told DeFelice that

Pete Lauer had told him

“Chris Kyle broke Jesse Ventura’s leg.

” But then Lacz said, “

No, this is how it

happened,” “like Kyle is out there choking—he’s choking Ventura out

And then that

was it. It got broken up. But I was like, he choked up Ventura

.”

(c) The Story Kyle Told in Early Draft Versions of the American Sniper Manuscript.

In the first draft manuscript, DeFelice added a new detail so that it would not

sound like Kyle assaulted Ventura without provocation, saying instead that

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“decked” only after he had “loaded up to punch [Kyle].

” Omitted was

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Kyle’s claim that

he saw Ventura on TV a few days later with a black eye

.

In the next iteration, more details were added to make Kyle out to be more of a

hero, and to make Ventura look worse. As the story morphed, Kyle this time remained

“uncharacteristically level-headed” after Ventura supposedly said “You deserve to lose a

few,” and Kyle suggested that “we just step away from each other and go on our way,”

and did not react physically until after Ventura “swung” at him first. And then, “Tables

flew. Stuff happened. Jesse Ended up on the floor.

(d) The Story Kyle Told After He was Warned of a Libel Lawsuit.

Several iterations later Ventura’s name was removed from the story, with an

editorial comment stating the reason to be, “Don’t want to use his full name or

description. Was warned of law suit.” The title of the subchapter was correspondingly

changed from “Punching out Jesse” to “Punching out Scruff Face.

” But even with the

redactions there was little mystery as to the subject of the story, as evidenced by an

editor’s comment on a subsequent draft which said, “

Great story. If it was witnessed by

fellow SEALs—thus corroberation [sic] against libel claim—can we mention who it was?

Jessie [sic] Ventura, I take it.

(e) The Story Kyle Told in the Published Version of American Sniper.

Kyle included the published version of American Sniper references to Ventura

taking a swing at him, tables flying and stuff happening, and to Ventura having a black

eye when he showed up to the BUD/S graduation ceremony. Omitted from the published

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version were various but not unimportant details from prior drafts, such as Ventura

supposedly hitting his head on the sidewalk and not getting up.

(f) The Story Kyle Told in His Interrogatory Response.

In his response to Interrogatory No. 8, Kyle changed his story yet again. This

time, he did not claim that “Tables flew. Stuff Happened.” Instead, he testified that the

incident occurred “

outside of McP’s on the sidewalk, near some parking spots on the

back side of the bar.

” And he specifically said that he “

punched Ventura with the closed

fist of his right hand and that the punch landed on the left side of Ventura’s face,” and

that he delivered the punch with force “sufficient to knock Ventura to the floor” and

“sufficient to give Ventura a black eye.

3. The Estate’s Witnesses Cannot Corroborate Kyle’s Fabricated Story.

The Estate’s attorneys procured declarations from several of Kyle’s SEAL

teammates who were at McP’s on October 12, 2006, along with two SEAL mothers who

were also there, and a SEAL instructor who has heard stories about that night. The SEAL

teammates are Bob Gassoff, Andrew Paul, Jeremiah Dinnell, Kevin Lacz, John Jones,

John Kelly, and Guy Budinscak. The SEAL mothers are Debbie Lee and Debbie Job.

The SEAL instructor is Ivan Krusic. All have been deposed and their testimony,

individually and collectively, fails to corroborate Kyle’s story and shows it, instead, to be

a fabrication.

(a) Witness Testimony is Compromised by Alcohol.

Kyle’s friends said in their declarations that a SEAL wake is a somber occasion,

and that they are able to remember the events from 2006 because they all tried to stay

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sober and under control. But in his book, Kyle prefaced his story about meeting Ventura

at a SEAL wake as follows:

SEAL funerals are kind of like Irish wakes, except there’s a lot more drinking. Which begs this question, how much beer do you need for a SEAL wake? That is classified information, but rest assured it is more than a metric ass-ton.

Kelly confirmed in his deposition that Kyle’s written description “seems accurate.”

Lacz testified in his deposition that he “might have been” drunk. But in his

original recorded interview, he told DeFelice that

he was “sh-t-hammered

” that night,

and later confirmed that there was “a copious amount of alcohol there.” Jones candidly

admits in his deposition that he was “intoxicated that night,” and he was “trying to recall

something—in an intoxicated mind or frame, so—I hope I’m not messing this up too

bad.” Kelly said, “[i]f there were no shots at that point, that wouldn’t be a frogman

wake,” and “I can guarantee you somebody was puking that night.” Mr. DeWitt and his

wife confirm that the younger SEALs at McP’s were drinking heavily, including some

who decided to climb a concrete structure nearby, and another who was puking in the

bathroom.

(b)

The Estate’s Witnesses Did Not Hear Ventura Make the Statements Attributed to Him.

Gassoff did not see or hear Kyle and Ventura speak to each other. In fact,

everything Gassoff knows about what was said he heard from someone else.

Paul never heard Ventura say “Navy SEALs deserve to lose a few,” “SEALs are

killing innocent people,” “SEALs are murderers,” or that “SEALs are killing women and

children.” Except for a brief, ten-minute period, Paul did not hear anything Ventura said

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the entire evening. Nor could he hear anything Ventura and Kyle said to each other, and

he “didn’t see anything that made it appear to [him] that there was any kind of

confrontation.”

Lacz did not hear Ventura say the things attributed to him by Kyle. Just the

opposite, Lacz testified that Ventura was saying that he disagreed with the manner in

which SEAL missions were being conducted jointly with regular forces in Iraq, and the

gist of what he was saying is that, if SEALs continue to be put in those situations, it is

just a matter of time before they lose some guys. In other words, according to Lacz,

Ventura was expressing concern for the safety of the SEALs fighting in Iraq—not

wishing death upon them.

Jones did not directly hear Ventura say anything at McP’s, and does not recall any

specific remarks anyone else present attributed to Ventura. All Jones recalls is that

Ventura reportedly voiced objections to the tactic of SEALs operating during the day

time, and in general to U.S. intervention in Iraq. Jones did not hear anyone say that

Ventura had called SEALs murderers, just that SEALs should expect to lose some guys if

they continued using the types of tactics they were using in Iraq.

Kelly did not hear Ventura make any of the alleged statements either; he only

knows what Kyle told him Ventura said. Kelly cannot remember any specifics as to what

Ventura said about President Bush, only that Ventura was talking about the U.S. not

fighting a military enemy in Iraq, but instead fighting “civilian population type.” Kelly

never heard Ventura say SEALs deserve to lose a few. And he cannot remember

anything else Ventura said, “[o]ther than that it was all hearsay, guys telling me what

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they heard him say

so I can’t honestly say I heard him say the other things he had,

but, I mean—excuse me—I trust my friends.” Kelly does not recall who told him that

Ventura had said SEALs deserve to lose a few.

(c) The Estate’s Witnesses Confirm that Kyle Invented His Story During a Night of Drinking at Danny’s Bar.

Kelly explained how Kyle’s story started—a bunch of drunk guys sitting in a bar,

telling tales that kept getting better as the night wore on. Kelly said he met up with his

Teammates at Danny’s, a bar down the street from McP’s, where Kyle started telling the

story that he punched Jesse Ventura. Before Kyle arrived, no one at Danny’s was talking

about Ventura. But, after Kyle got there:

[E]veryone’s stories didn’t start coming together until we all, you know, grouped up again, and through the close proximity of everyone at Danny’s [a bar], I mean—especially, you know, drinks started flying, everyone is

real loud and started telling what they heard and they heard and this heard,

It just had its own life and energy

.

and guys started getting all riled up .

.

.

“And then

That’s where the stories started, there at Danny’s, and from there SEALs

like to talk, and pretty soon a lot of people in the SEAL community had heard this story

that Chris Kyle had told you at Danny’s, is that [ ] right?

Yes.” Kelly also admits

that, by the time he left Danny’s that night, he had had between 15 and 20 drinks.

Jones told a similar story, testifying that, “when I made it to Danny’s

that’s

when I got the whole story.” And he testified that giving specifics about what people

were telling him, “would be doing the same thing they’re—they’re doing, making—

making it up.” “So one of the jokes in our community is we’re a big sewing circle—all

we do is gossip.”

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(d) The Estate’s Witnesses Did Not See Kyle Punch Ventura.

Gassoff did not see who was involved in the alleged “commotion,” tables being

knocked over, or Kyle or Ventura leave afterward. Everything Gassoff knows about the

supposed altercation he heard from someone else.

Paul said that even though he was only 15 feet away, he did not see Kyle punch

Ventura, and did not see him on the ground. In fact, it “was more from the story [Kyle

told] the next morning [that Paul could] kind of figure out what happened as it played

out,” because no one at McP’s that evening talked about the alleged incident—there was

not any “kind of a buzz among the crowd” with “people saying, ‘Wow, did you just see

that? Jesse Ventura got hit?’” Paul, in fact, did not even know Kyle had supposedly

punched Ventura until the next day when Kyle told him. But, although Paul is an officer

and Kyle’s superior, when Kyle told Paul that he had punched Ventura, Paul did not

report him to either civilian or military authorities.

Debbie Lee views Kyle and other SEALs as her adopted sons. She was at McP’s

on the night in question until about 10:30 p.m. But “other than what Chris Kyle has told

[her, she does not] have any other information about what actually happened,” and she

cannot identify any other people who have told her what happened.

Before filing a declaration on Kyle’s behalf, Debbie Job called him to discuss if

she “was remembering it correctly or not,” and she asked him specific questions to “help

[her] remember correctly.” She asked Kyle “if it happened on the front sidewalk,

because that is where [she] know[s] that a police car had pulled up,” but Kyle said it was

“on the side street” so it “confirmed that [she] did not see it happen.” Nor did she

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witness any interactions between Kyle and Ventura, or see any tables or chairs falling or

tipping over. She does, however, recall some sort of altercation that occurred down the

street from McP’s where “some guys were talking to some guy about something he said”

—and which did not involve Ventura.

Lacz did not witness Kyle having angry words with or punching Ventura. Nor did

he actually see Ventura on the ground, or see anyone around Ventura or anyone help him

up—even though Lacz describes Ventura as “one of the top five most well-known

SEALs” of all time. And, like the others, Lacz says that, even though Ventura was

famous, and was supposedly punched and knocked down at a gathering of SEALs, no one

even discussed the alleged incident at the time.

Jones did not see Kyle punch Ventura, or even see them in close proximity to each

other. Nor did Jones see Chris Kyle around when the “incident” supposedly happened or

actually see Ventura on the ground. Based on what he saw, in fact, Jones had no reason

to believe that Ventura did not just trip. There was nothing he witnessed about the scene

that led him to believe that there had been a physical altercation.

Kelly did not see Kyle punch Ventura, did not see Ventura fall, and cannot recall

ever speaking to anyone who actually saw Kyle punch Ventura, or who saw him on the

ground. Although Kelly believes he saw Ventura on the ground, he does not remember if

he saw him get up, and does not remember whether he hit his head on the ground or not.

(e) The Estate’s Witnesses Do Not Know or Remember Which Story to Tell.

(i) What Happened?

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Kyle’s original story was that Ventura went down from the punch, hit his head on

the pavement, and did not get up. But, as discussed above, none of Kyle’s witnesses who

claim to have been present saw Ventura either hit his head on the pavement or lay on the

ground as though he had.

Paul testified that Ventura was yelling and screaming at Kyle “F--- you. I’m

gonna f---ing kill you.” But Kyle has never mentioned anything about Ventura

supposedly yelling obscenities in any of the versions of the story he has told, and

although all of Kyle’s witnesses claim to have been within a few feet of the alleged

incident, and to have earlier heard Ventura engaging in conversation on the patio, not one

of them claims to have heard him yell anything.

Paul is also the only one who claims to have seen blood on Ventura’s lip. But no

other witness claims to have seen any blood on Ventura. Nor has Kyle said in his book

or in any of his subsequent interviews about the book that his alleged punch caused

Ventura to bleed—only that he thought he had given him a black eye.

Kyle also said the Coronado police were there and watched the whole thing. But

there is no police report of an assault on Ventura in October 2006, an no hospital record

related to the alleged incident.

(ii) Where Did it Happen?

Gassoff consulted with Kyle to refresh his memory and they agreed where they

would say the alleged occurrence took place. Nonetheless, Gassoff still could not say

whether the supposed incident occurred inside the walls of the patio or outside in the

parking lot.

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Paul and Dinnell both place the “incident” inside the walls of the McP’s patio.

But Paul said Ventura and Kyle were on the northeast side of the patio when the alleged

incident occurred, and Dinnell says that it allegedly happened on the opposite northwest

end of the patio. Lacz said that he saw Ventura in proximity to Kyle near the parking lot

area just outside of the northeast side of the McP’s patio. But Lacz did not see anything

out of the ordinary about their interaction, and the next time he looked he saw Kyle alone

and at the other end of the parking lot on the northwest side.

Kelly testified that Ventura was outside the McP’s patio wall on the northwest

sidewalk—not inside the patio and not in the parking lot on the northeast side. Jones said

he never saw Ventura and Kyle in proximity to one another in the parking lot area, did

not see Kyle in the area when the alleged incident occurred, and did not see any

confrontation between the two. And Debbie Job recalls seeing a fight out on the sidewalk

and down the street from McP’s—but that fight did not involve Ventura. No one recalls

any “tables flying” as Kyle wrote in his book.

(iii) Jeremiah Dinnell’s Incredible Testimony

Jeremiah Dinnell is the only one of Kyle’s witnesses who claims to have actually

seen Kyle punch Ventura, or who heard him say “SEALs deserve to lose a few.” His

memory and credibility, however, are seriously suspect.

Dinnell does not remember how he got to McP’s, who drove, who was with him,

or what he was drinking at the bar. Dinnell says that he left McP’s for a period of time

before the alleged incident occurred and went to a bar down the street called Danny’s.

But he does not remember if he had any drinks there, how long he stayed, or if anyone

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was with him when he came back to McP’s. Although Dinnell said in his declaration that

while at McP’s Ventura was telling stories about his wrestling days, Vietnam days, and

about being Governor of Minnesota, in his deposition Dinnell said that he did not recall

hearing Ventura say anything about those topics.

However, Dinnell did testify that, at the precise second he arrived on the sidewalk

outside of McP’s patio, he: (i) noticed a group of people, including Kyle and Ventura—

inside the patio walls at McP’s near the northwest corner; (ii) heard Ventura say “you

deserve to lose a few”; and (iii) saw him get punched; but (iv) did not “actually see

Ventura hit the ground.” Aside from that one-second snapshot, however, Dinnell

remembers virtually nothing else of the entire weekend.

As explained above, Dinnell’s testimony does not place him, or the alleged

occurrence, anywhere even remotely close to where Kyle claimed that it happened in his

original story and Interrogatory response. Dinnell said the incident occurred inside the

McP’s patio walls—not out in the parking lot as Kyle claimed. Nor does Dinnell

remember hearing anything Kyle said, or anything else Ventura may have said, or any

conversation between Kyle and Ventura. He cannot recall anything about the crowd at

all, including the crowd’s reactions or whether tables were knocked over or anything said

by anyone, or even where Kyle and Ventura were in relation to the crowd. And he does

not remember if he returned to Danny’s after he witnessed the incident and stayed until

closing time, who he was with when he went back to Danny’s, whether he had more

drinks, whether anyone discussed the alleged incident that night, or what time he got

home. In fact, Dinnell does not even remember if anyone talked about the incident the

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next day, or even whether he went to work the next day or if it was a weekend, saying

that “it’s all kind of hazy.”

Dinnell’s testimony, and his credibility, can be summed up in two sentences:

Q. So once you saw Chris Kyle strike Governor Ventura, is it your

testimony that you really can’t remember anything that happened after that?

A. Yes, sir.

The alcohol-related pictures Dinnell posted on his Facebook account perhaps show why

Dinnell’s memory of the events in question is virtually non-existent, save for the few

minutes of feigned clarity he perceives to be in his “brother” Kyle’s interests.

(f) The Estate Files the Declaration of Laura deShazo Well After the Deadline for Discovery.

The Court’s scheduling orders required fact discovery to be completed by

December 1, 2012. On October 28, 2013—10 months after the discovery cutoff—the

Estate provided Ventura with the Declaration of Laura deShazo. In her declaration—

which is as sparse on details as the previous witness declarations drafted by the Estate’s

counsel that have since been discredited at depositions—deShazo claims to have seen

some unidentified person punch Ventura.

Although deShazo now says for the first time—seven years after the fact and

nearly two years after Kyle’s book came out—that she saw some unidentified person

punch Ventura, as with all of the prior, deliberately vague, declarations, she does not

provide any other details regarding what supposedly happened, where, or who was

involved. Ventura and his witnesses, on the other hand, all say that the alleged incident

never happened, and photographs show that Ventura’s face exhibited no evidence of a

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blunt force trauma at the time or in the days that followed. Ventura has moved in limine

to preclude the deShazo sisters from testifying because they were not timely disclosed.

D. KYLE HAS A HISTORY OF TELLING FALSE STORIES THAT MAKE HIM LOOK LIKE A “HERO.”

Not unlike the story Chris Kyle told about Ventura in American Sniper, it has been

publicly reported that Kyle regularly told similar tall tales that were intended to make him

look like a hero. Kyle told one reporter, for example, that during Hurricane Katrina he

was sent to New Orleans where, from the top of the Superdome, he and other snipers shot

and killed dozens of looters during the riots.

Kyle told another story to, among others, a reporter for the New Yorker magazine,

in which he claimed that, as he was filling his truck with gas at a rural Texas convenience

store, two thieves attempted to rob him at gunpoint. Just as he claims to have calmly

taken care of Ventura when he supposedly mouthed off, Kyle’s story is that, as the

thieves were standing there with handguns pointed directly at him, he calmly reached into

his truck as if to get the keys, pulled a gun from inside the truck, tucked it under his arm,

and with his back turned shot and killed the two would-be robbers. According to Kyle,

when the police arrived they ran his driver’s license and were directed to call a number

that rang at the Department of Defense, who advised the police officers that Chris Kyle

was an American hero and America’s deadliest sniper, and instructed them to release

Kyle without question.

With striking similarity to the Ventura encounter reported in American Sniper,

Kyle also told a story about a time when he was at a University of Texas football game in

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a suite full of spectators, and saw a former University of Texas football star who had

fooled around with his friend’s girlfriend. Once again making himself out to be the

hero—and just like the Ventura story—Kyle claims that to defend his friend’s honor he

choked the football star into unconsciousness and, intentionally holding the choke a little

longer than necessary, caused the football star to urinate and defecate, all while a suite

full of witnesses looked on.

As with Kyle’s story about Ventura, however, there is no evidence that any of the

other hero stories he regularly told are true: no arrests, no police reports, no coroner

reports, no hospital records, no surveillance video, no news reports, nothing.

E. TAYA KYLE CRITICIZES VENTURA IN THE MEDIA.

Perhaps taking a cue from her husband, who had previously mocked Ventura on

radio and television programs, or from her counsel who have consistently disparaged

Ventura in their court filings, Taya Kyle has taken her case to the media in an attempt to

influence public opinion in her favor and against Ventura. Appearing on FOX TV’s the

O’Reilly Factor and Glenn Beck’s internet program, for example, Ms. Kyle criticized

Ventura for pursuing this suit and said he is trying to take away money she needs to raise

her children. She also painted Ventura as selfish and unfeeling toward the families of

military veterans.

The following exchange occurred between Ms. Kyle and Glenn Beck:

Glenn Beck:

[S]peaking of, um, great American heroes. Chris Kyle…you raised so much money for his wife and family when he was murdered… [H]is family is being put through hell and before we bring her on I’m going to say

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something because I don’t want her to have to even react to it. Um, but Jesse Ventura is a dirt bag. And I have met Jesse Ventura, and he is an out- of-his-mind, crazy, bad man –

Seriously bad guy –

Yeah…he is suing Chris’ family… I tend to believe uh, Chris because…I know Jesse Ventura, um, but it doesn’t matter – he’s dead, man, what are you doing? And now he’s suing the family…

Because Chris talked about the bar incident where he hit him in the face and knocked him

[H]e’s a dirt bag…Taya Kyle is on the phone with us now…

Taya, um, uh, feel free to just say no, and everyone will understand. Do you want to comment on the Jesse Ventura thing?

Taya Kyle:

Huh, the only thing that I would like to say – and thank you for allowing me the opportunity to not discuss it – but I was surprised to hear him say that, I think he was trying to say that he was suing an insurance company or that it wasn’t personal or it wasn’t about money. And I would like to clear up the fact that he is absolutely seeking money from Chris’s estate – he always was and he continues to be. The insurance company for Harper Collins William Morrow is helping me pay the legal fees, but if he were to win some sort of award, it comes out of the money that I have to raise my children and to give to other veterans…

Glenn Beck:

We, this audience, you know, in $20 increments, raised an awful lot of money for your family and we put it in a trust, um, for you…Is that money secure?

Taya Kyle:

Thank you for bringing that up because I have to – first of all, let me answer your question, yes. And secondly, I have to tell you that what you and your viewers and your fans and supporters did for my family changed our lives and it changed it, you know, the day I met with you.

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Contrary to Ms. Kyle’s repeated representations to the media that Harper Collins’

insurer is “helping” to pay for her defense, the truth is that the insurance company is

paying for the entire defense. And contrary to her claims that any judgment will be paid

with her funds, she knows that the insurer is obligated to indemnify.

Because the Estate’s

defense appears to have shifted from the merits to one based on sympathy and

prejudice—with Ms. Kyle proclaiming to all who will listen that Ventura is suing a

widowed veteran’s wife who is just trying to feed and clothe her two children—the facts

that will show Ms. Kyle’s claims to be untrue are now relevant.

F. VENTURA’S REPUTATION HAS BEEN DAMAGED BY THE DEFAMATORY STORY.

Over the years, Ventura has maintained close friendships with his former BUD/S

classmates and has occasionally spoken at SEAL graduation ceremonies, where he has

always been treated with respect. While he has criticized government policy and publicly

opposed the war in Iraq, he has always supported America’s troops and would never wish

harm upon them. Ventura is so proud of his UDT / SEAL service that, prior to Kyle’s

defamatory statement, and post-Iraq war, he had the SEAL Trident tattooed on his body.

The Trident is also painted on his motorcycle, and he proudly wore the Trident in his

official portrait at the Minnesota State Capitol. By falsely claiming that Ventura said

SEALS deserve to die, Kyle intended to inflict a vicious and deliberate assault on his

character and reputation, and to turn the SEAL community and Americans against him.

And Kyle succeeded.

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Kyle conceded that, for a Navy SEAL, the Trident medal is a “symbol of who

were are.” In his book, he Kyle talks about the “SEAL mentality and lifestyle and

camaraderie.” He also acknowledges that making a “dispute between two of its members

public” could “harm the SEAL community.”

Kyle’s SEAL friends admit that the “story of Chris [Kyle] punching Ventura

definitely took off within the SEAL community on the West Coast,” that the “fight

between Chris [Kyle] and Ventura was well-known all over the West Coast SEAL

teams,” “word of Chris [Kyle] punching out Ventura spread pretty quickly,” and that “the

story

spread throughout

the SEAL community pretty fast.”

Before Kyle’s book came out, however, the story that was making the rounds in

the SEAL community consisted of only vague references to Ventura being punched; there

were “no details of the story. It’s

just that Chris knocked down Mr. Ventura.” Jones

said that, “I think most of the community even forgot about it until the book came out.”

Many different versions of the story have been told over the years, all of them having the

general theme that “Jesse got knocked out on the deck of McP’s,” “Jesse got knocked out

in front of McP’s,” or “Jesse got knocked out somewhere.” But, when the story had been

told prior to Kyle’s book, “it was just somebody knocked him out,” and what Ventura

supposedly said to provoke the punch was never part of the story, other than generalities

about him “running his mouth.”

After Kyle’s book came out it was different. There are thousands of public

comments posted on Internet and news sites that vilify, malign, disparage and, in general,

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exhibit disgust, hatred, and contempt for Ventura because of the statement Kyle attributes

to him about SEALs being murderers and deserving to die.

The Estate’s own witnesses also uniformly agree that attributing to Ventura

statements to the effect that he believes SEALs are murderers and SEALs deserve to die

lowers his reputation and standing in the SEAL community. Paul testified that “[i]t’s

absolutely appalling to make those kinds of statements at a wake,” and “it would be

considered one brother turning against another if a SEAL actually did say that SEALs

deserve to die for what they’re doing overseas.” “A former SEAL or former UDT guy

who would say something like that would certainly be shunned by his former brothers

that’s just bad—bad stuff all around,” Dinnell testified.

Lacz said that the only thing more vile than the statements Kyle attributes to

Ventura would be if he had said he hates God. Lacz also testified that a former SEAL

who said that “SEALS were murderers, they were killing innocent people, and that

SEALs deserved to die” would be held in “extremely low” regard. Or, as Kelly phrased

it, “there’s a deep dislike for the man now

it’s vile because it’s close to my heart

Some stuff you just can’t unsay”; “To me

those comments really affected me”; “He’s no

longer a SEAL to me

he’s no longer welcome on the West Coast

he’s not

welcome at any reunion over there.” I would not “consider that SEAL to be a member of

the brotherhood,” said Jones.

Debbie Job, the mother of a fallen SEAL, testified that saying SEALs deserve to

lose a few “was a cruel thing to say,” the statement “made [her] think less of Mr.

Ventura,” and that she cannot “think of anything worse to say.” Krusic testified that,

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“[a]nybody that says that their brothers deserve to die

anybody that heard it if it was in [the SEAL] community

that would sit wrong with

[there is nothing] worse

than a SEAL turning on his brothers and telling others that they deserve to die.” And

that, “[i]f a former SEAL actually said something

deserve to die overseas while serving their country

reputation in the SEAL community.”

to the effect that his brothers

[it] would pretty much destroy his

G. THE ESTATE HAS UNJUSTLY BENEFITED FROM CHRIS KYLE’S DEFAMATORY STATEMENTS ABOUT VENTURA.

Kyle’s book was released on January 3, 2012, and from January 4 through 10,

2012, he went on national television and radio programs to promote it. In those

interviews, the primary topic of conversation was Kyle’s alleged altercation with

Ventura. The publicity Kyle received from his interviews about the alleged incident with

Ventura caused book sales to

“go crazy”

and exceed all expectations, with the book’s

publisher organizing a marketing campaign around the Ventura story to sell more. By

January 22, 2012, American Sniper was No. 2 on the New York Times Bestseller list. It

went to No. 1 by January 29, 2012.

The book has since been on a number of “best-seller” lists, and as of June 30,

2013, royalties were in excess of $3 million. In June 2012, Chris Kyle optioned the

movie rights to Warner Brothers Entertainment, Inc. Hollywood actor Bradley Cooper is

set to produce and star in the movie adaptation.

In short, the evidence is that Kyle’s book was driven to No. 1 on the bestseller lists

primarily by the publicity he received, and the controversy he generated, by telling his

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false and defamatory story about Ventura. When all of the evidence is in at trial, it is for

the jury to look at the revenue derived by Kyle and the Estate, and to determine what

amount is necessary to compensate Ventura for the appropriation claim; and it is for the

Court to determine the amount unjustly received by the Estate that must be disgorged on

the unjust enrichment claim.

CONTROLLING LAW

A.

DEFAMATION

1. Common Law Defamation

Common law defamation (libel and slander) requires: (i) a false and defamatory

statement about the plaintiff; (ii) nonprivileged communicated to a third party; and (iii) a

tendency to harm the plaintiff's reputation and to lower him in the estimation of the

community. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980);

Stepnes v. Ritschel, 663 F.3d 952, 963 (8th Cir. 2011); Cavanaugh v. Burlington N. R.R.

Co., 941 F.Supp. 872, 879 (D. Minn. 1996).

When a libel is expressed in clear and unambiguous terms, the question whether it

is libel per se is one of law for the Court. See Morey v. Barnes, 2 N.W.2d 829, 831

(Minn. 1942) (“To be libelous per se, words must be of such a nature that the court can

say, as a matter of law, that they will tend to disgrace and degrade the party defamed

.”). Where a publication “clearly defames a person

the court should instruct the

jury that it is libelous as a matter of law.” Id.; see also Sharpe v. Larson, 70 N.W. 1, 1

(Minn. 1897) (“If the publication is obviously defamatory, it is the duty of the trial judge,

in a civil action, to direct the jury, as a matter of law, that it is libel per se

38

.”).

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2. The First Amendment’s Actual Malice Standard

Defamatory statements about a public figure are not protected by the First

Amendment if they are made with “actual malice,” meaning that they are knowingly false

or were written with reckless disregard for the truth. New York Times Co. v. Sullivan,

376 U.S. 254, 279–80 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 331–32 (1974).

Because direct evidence of a defendant’s subjective knowledge of falsity is rare, a

defamation plaintiff “is entitled to prove actual malice by circumstantial evidence.”

Stokes v. CBS Inc., 25 F. Supp. 2d 992, 1003 (D. Minn. 1998) (citing Harte-Hanks

Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 668 (1989)).

A defendant cannot “automatically insure a favorable verdict by testifying that he

published with a belief that the statements were true.” St. Amant v. Thompson, 390 U.S.

727, 732 (1968). “Professions of good faith will be unlikely to prove persuasive, for

example, where a story is fabricated by the defendant [or] is the product of his

imagination

Nor will they be likely to prevail when the publisher’s allegations are

so inherently improbable that only a reckless man would have put them in circulation.

Likewise, recklessness may be found where there are obvious reasons to doubt the

veracity of the informant or the accuracy of his reports.” Id.

“[I]f the defendant is an eyewitness to an unambiguous event which he or she then

misreports, a finding of ‘actual malice’ may arise from testimony of other witnesses

establishing that the event did not happen as described.” ROBERT D. SACK, SACK ON

DEFAMATION: LIBEL, SLANDER, AND RELATED PROBLEMS §5.5.2, at 5-83–84 (4th ed.

2010); see also Prinzing v. Schwab, No. A05-398, 2006 WL 538926, at *1 (Minn. Ct.

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App. Mar. 7, 2006) (“[W]hen a defendant's testimony as to his subjective beliefs simply

is not credible, the fact-finder is free to disbelieve the testimony and draw a contrary

conclusion.”).

3. Presumed Damages in Actions for Libel

Under the common law, libel is actionable per se, meaning that a plaintiff

asserting a claim for libel need not produce evidence of actual or special damages.

Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc., 352 N.W.2d 1, 9 (Minn. 1984)

(“Courts at common law presumed damages from any libel.”). Minnesota courts have at

times confused the concepts of libel—in which presumed damages are always

available—with slander—in which presumed damages are only available if the

defamatory statement fits into one of the slander per se categories. The Minnesota

Supreme Court, however, has made clear that Minnesota follows the common law

approach to libel claims:

[w]ritten publications calculated to expose one to public contempt or ridicule, and thus induce an ill opinion of him, and impair him in the good opinion and respect of others, are libelous although they involve no imputation of crime, and are actionable without any allegation of special damages.

Advanced Training Sys., 352 N.W.2d at 9 (quoting Byram v. Aikin, 67 N.W. 807,

808 (Minn. 1896)).

B. MISAPPROPRIATION OF NAME AND LIKENESS

Misappropriation of name and likeness was recognized as part of the appropriation

branch of the right of privacy by Minnesota’s Supreme Court more than a decade ago in

Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998). The elements are: (1)

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appropriation; (2) of another’s name and likeness; (3) for one’s own use or benefit; (4)

without consent. Id. There is no requirement under Minnesota law that the appropriation

be for advertising or other commercial purposes. Id.; see also Minn. CIV JIG 72.15

(“Invasion of privacy by appropriation occurs when a person appropriates another

person’s name or likeness for his or her own use or benefit.”), and official cmt. (“The

Restatement rule, however, is not limited to commercial appropriations. The rule applies

whenever the defendant appropriates the plaintiff’s name or likeness for his own purposes

or benefit, even if not commercial and pecuniary.”).

C. UNJUST ENRICHMENT

Unjust enrichment is an equitable doctrine that provides a remedy where another

party knowingly received something of value to which he was not entitled, and the

circumstances are such that it would be unjust for that person to retain the benefit.

Schumacher v. Schumacher, 627 N.W.2d 725, 729 (Minn. Ct. App. 2001). A claim in

unjust enrichment lies where the defendant’s conduct is morally wrong. Id.; see also,

ServiceMaster of St. Cloud v. GAB Business Servs., Inc., 544 N.W.2d 302, 306 (Minn.

1996) (“To establish an unjust enrichment claim, the claimant must show that the

defendant has knowingly received or obtained something of value for which the

defendant ‘in equity and good conscience’ should pay.”). While Ventura’s defamation

claim provides damages to the extent of the harm to Ventura’s reputation, damages for an

unjust enrichment claim are measured by the extent of the unlawful and unjust benefit

received by the Estate. Zirinsky v. Sheehan, 413 F.2d 481 (8th Cir. 1969) (recovery for

unjust enrichment measured by defendant’s gain; not plaintiff’s loss).

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HENSON & EFRON, P.A.

By

David Bradley Olsen, #197944 Court J. Anderson, #331570 John N. Bisanz, Jr., #0389098 220 South Sixth Street, Suite 1800 Minneapolis, MN 55402-4503 Telephone: (612) 339-2500 dolsen@hensonefron.com canderson@hensonefron.com jbisanz@hensonefron.com

s/ David Bradley Olsen

Attorneys for Plaintiff Jesse Ventura, a/k/a James Janos

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Jesse Ventura, a/k/a James G. Janos, an individual,

vs.

Plaintiff,

Taya Kyle, as Executor of the Estate of Chris Kyle,

Defendant.

Civil No. 12-cv-0472 RHK/JJK

DEFENDANT’S STATEMENT REGARDING ANTICIPATED LENGTH OF TRIAL

Defendant Taya Kyle, as Executor of the Estate of Chris Kyle, anticipates that the

presentation of her case in chief likely will take 20 to 25 hours and that cross-

examination of Plaintiff’s witnesses likely will take five to 10 hours. Some of this time

may consist of presentation of designated deposition testimony that overlaps with

deposition testimony designated by Plaintiff’s counsel.

Defendant further anticipates that the length of the trial as a whole, including jury

selection, opening statements, presentation of Plaintiff’s witnesses, conferences with the

Court, and closing arguments, likely will take 55 to 70 hours.

US.54039136.01

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FAEGRE BAKER DANIELS LLP

By: /s/ John P. Borger

John P. Borger, #9878 Leita Walker, #387095 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 Telephone: (612) 766-7000 Fax: (612) 766-1600 john.borger@FaegreBD.com leita.walker@FaegreBD.com

Attorneys for Defendant Taya Kyle, Executor of the Estate of Chris Kyle (deceased)

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Jesse Ventura, a/k/a James G. Janos, an individual,

vs.

Plaintiff,

Taya Kyle, as Executor of the Estate of Chris Kyle,

Defendant.

Civil No. 12-cv-0472 RHK/JJK

DEFENDANT’S TRIAL BRIEF

Introduction

In his autobiography AMERICAN SNIPER, Chris Kyle described a 2006 encounter at

McP’s Irish Pub & Grill in Coronado, California, with a man who made an aggressive

gesture and insensitive comments about the military in the presence of mourning family

and friends of deceased Navy SEALs. In some later media interviews, he said the

encounter was with Jesse Ventura. This Trial Brief will use the term “the Published

Statements” to collectively refer to the challenged portions of the Book and of the media

interviews.

Ventura claims that Kyle lied about the whole encounter. To prevail on his

defamation claim, Ventura must establish the falsity and defamatory nature of Kyle’s

account. He also must establish that Kyle did not believe that the encounter transpired

substantially as Kyle described – that is, that Kyle made the statements with a high

degree of subjective awareness of the statements’ probable falsity.

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Although Ventura also claims that Kyle unfairly used Ventura’s name to increase

sales of AMERICAN SNIPER (including movie rights to the Book), the evidence will show

that the public embraced Kyle’s book for reasons completely unrelated to any passing

reference to Ventura. That evidence includes financial records showing that Kyle’s book

was far more successful than any book that Ventura wrote (and that carried Ventura’s

name and/or picture on the cover). Any reference to Ventura was incidental to protected

expressive activity, and does not support liability for misappropriation or for unjust

enrichment. To the best of the knowledge of the undersigned defense counsel, no plaintiff

in circumstances similar to Ventura’s has ever prevailed on claims for misappropriation

or unjust enrichment.

The central issues at trial likely will be:

1. What happened at McP’s on October 12, 2006?

2. What did Chris Kyle know and believe when he wrote the Book and made his

comments during media interviews?

3. How did the Published Statements affect Ventura?

4. Did Chris Kyle misappropriate Ventura’s name or use Ventura’s name to

unjustly enrich himself?

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Statement of the Issues, Facts Expected to be Proved, and Controlling Statutory and Case Law

I. Liability – Count I (Defamation)

A. Elements of claim

The Eighth Circuit summarized the elements of a defamation (libel) claim in

Stepnes v. Ritschel 1 as requiring:

(1) a false and defamatory statement about the plaintiff; (2) an unprivileged publication to a third party; (3) a tendency to harm the plaintiff's reputation in the community; and (4) fault amounting to at least negligence. … If the plaintiff is a public figure [or public official], he must show through clear and convincing evidence that the defendant’s fault amounted to actual malice. … Actual malice requires acting with “knowledge that the

statements were false or

false.” … Accordingly, the plaintiff must show that the “defendant in fact entertained serious doubts as to the truth of his publication.”

reckless disregard of whether they were true or

Ventura concedes that he is a public figure. 2 The burden is on Plaintiff to prove each

element. 3

Not every element is necessarily in dispute in this case. Defendant acknowledges

that Chris Kyle – in his book and during his interviews with Opie & Anthony and with

Bill O’Reilly – made statements to third parties and that those statements included

statements that were about Ventura. Those elements need not be submitted to the jury as

to the Published Statements identified in the Complaint, ¶¶30(a), 30(b).

1 Stepnes v. Ritschel, 663 F.3d 952, 963 (8th Cir. 2011) (internal citations omitted).

2 ECF #269 at 8.

3 ECF #269 at 8, citing Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)

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B. Disputed element: Defamatory meaning

“Words are defamatory when they tend to injure the plaintiff's reputation and

expose the plaintiff to public hatred, contempt, ridicule, or degradation.” Church of

Scientology of Minn. v. Minnesota State Med. Ass’n Found., 264 N.W.2d 152, 155 (Minn.

1978); see also Prosser and Keeton on Torts § 111 at 775 (5th ed. 1984) (stating that

some “element of personal disgrace [is] necessary for defamation;

the fact that the

plaintiff finds it unpleasant and offensive is not enough”).

Words can be defamatory without being false: “Tom Petters swindled thousands

of people out of millions of dollars.” Words can be false without being defamatory: “Tom

Petters has blond hair.” Although the “defamatory character of any particular statement

must be construed in the context of the article as a whole,” 4 a publication as a whole will

not support liability simply because it contains some statements that are false-but-not-

defamatory and other statements that are defamatory-but-true. A cause of action for libel

requires both falsity and defamatory character (and other elements such as fault) be

present in the same particular statement. 5 Furthermore, when the individual statements

4 Jadwin v. Minneapolis Star & Tribune Co., 390 N.W.2d 437, 443 (Minn. App. 1986) (“The defamatory character of any particular statement must be construed in the context of the article as a whole.”). Challenged statements must be taken as part of a whole, including tone and the use of cautionary language, and the context of the speech is “critically important.” Brodkorb v. Minn., Civ. No. 12-cv-01958-SRN-AJB, ECF #39, 2013 WL 588231, at *14 (D. Minn. Feb. 13, 2013).

5 Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864, 870 (8th Cir. 2005) (“[A]ny potential harm caused by the improper characterization was overshadowed by at least three other eye-catching observations highlighted in the Star Tribune article.”); Carradine v. State, 511 N.W.2d 733, 737 (Minn. 1994) (“if a jury properly might find that the additional statements significantly added to any injury sustained by plaintiff over

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within a communication are not actionable, the Minnesota Supreme Court has rejected an

argument that the totality of defendant’s statements made his entire communication

actionable. 6

In response to Defendant’s interrogatories, Ventura discussed fifteen separate

allegedly false and defamatory statements. 7 The fifteen statements were:

1. Ventura said that he “hates America.”

2. Ventura said Navy SEALs “deserve to lose a few.”

3. Ventura said Navy SEALs “deserve to lose a few guys.”

4. Ventura said “ya’ll [Navy SEALs] deserve to lose a few guys.”

5. Ventura said Navy SEALs “were killing innocent people.”

6. Ventura said Navy SEALs “were murderers.”

7. Ventura said “We were doing the wrong thing, killing men and women and children and murdering.”

8. Ventura “bowed up as if to belt” Kyle.

9. Ventura “bowed up again.”

10. Ventura “swung” at Kyle.

11. “Stuff happened. Scruff Face ended up on the floor.”

12. Ventura “showed up at the BUD/S graduation with a black eye.” 8

and above any injury sustained as a result of the absolutely privileged statements, then plaintiff should be allowed to proceed to trial against [defendant]; otherwise, not”).

6 McKee v. Laurion, 825 N.W.2d 725, 733-34 (Minn. 2013).

7 ECF #97-2 Ex. O at pp.14-16.

8 Ventura’s answer to interrogatory 7(a) asserted that the statement was false because: “The BUD/S graduation occurred earlier in the day and before he went to McP’s. The incident, as described by Kyle, is a fabrication.”

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13. Kyle “was in a bar fight with Jesse Ventura,” Kyle “punched him … in the face,” “he went down,” Kyle “knocked him down,” Kyle “popped him,” and/or “he [Ventura] went down.”

14. Ventura threatened or assaulted Kyle.

15. Kyle physically assaulted, battered, or punched Ventura.

The 15 statements overlap to some extent, and sometimes paraphrase Kyle’s actual

words. They generally are consistent with the allegations of the Complaint, ¶¶30(a),

30(b). Defendant’s proposed Special Verdict form condenses this list to six basic

statements.

The list on the Special Verdict form might be reduced further, either by agreement

among counsel or by the Court, prior to submission to the jurors. For example, Ventura

has conceded that the statement that Kyle hit him caused him no injury. 9 Consequently,

although that statement (essentially, a summary or paraphrase of Statements 11, 12, 13,

and 15) might play a role in evaluating the issues of material falsity and actual malice

with respect to other statements (such as the “deserve to lose a few” comment), 10 it

cannot itself be the foundation for imposing liability or awarding damages. Other

statements similarly should be non-actionable in themselves because they are not

defamatory or are immaterial details.

9 See ECF #238 (Plaintiff’s Memorandum opposing summary judgment) at 45-47.

10 See ECF #269 at 11-12.

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The Court should avoid juror confusion by pruning the statements to be submitted

to the jury and using a special verdict form that ensures that the jurors evaluate each

element of the libel claim for every disputed statement. 11

C. Disputed element: Material falsity

To succeed on a defamation claim, a plaintiff must prove the defendant’s

statement was materially false. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517

(1991). The plaintiff must demonstrate more than minor inaccuracies or alterations,

unless they “result[] in a material change in the meaning conveyed by the statement.” Id.;

see also Air Wis. Airlines Corp. v. Hoeper,

(discussing material falsity standard). 12

, 134 S. Ct. 852, 861 (2014)

11 Defendant acknowledges that, in an early discovery order, the Court denied Defendant’s motion to compel Ventura to provide supplemental answers to interrogatories that would detail each separate aspect of the Published Statements and concluded that “Ventura has provided adequate explanations of the factual bases for his claims that Kyle’s statements were defamatory, caused him damage, and harmed his reputation.” ECF # 47 at 2. However, Plaintiff’s recovery of compensatory damages for injury to his reputation must be based upon the specific allegedly defamatory Published Statements at issue, and not from other statements or from altogether separate causes. See n.5 above. Thus, the jury still must find every element of defamation present in a particular statement, and the Court must be satisfied that the jury has done so. Cf. Moore v. Hoff, 821 N.W.2d 591, 599 (Minn. App. 2012) (“When constitutionally protected speech is arguably intertwined with tortious conduct, it is the district court’s burden to ‘adequately disclose the evidentiary basis for concluding’ that there was independent tortious activity in order to ‘avoid[] the imposition of punishment for constitutionally protected activity.’”), quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-34 (1982). Defendant’s proposed Special Verdict form would facilitate that process.

12 ECF #269 at 8.

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The First Amendment protects mere rhetorical hyperbole, statements that cannot

reasonably be interpreted as stating actual facts, statements of subjective opinion and point

of view, and supportable interpretations of ambiguous underlying situations. 13

Defendant asserts that Kyle’s statements were not materially false, and that Ventura

cannot prove otherwise. In moving for summary judgment, Defendant “presented testimony

supporting the truth of Kyle’s statements,” 14 and will do so again at trial. The Court

concluded that “Ventura has proffered sufficient evidence upon which a jury could conclude

that Kyle’s statements were materially false.” 15

Ventura must establish material falsity by clear and convincing evidence. 16

13 Hunter v. Hartman, 545 N.W.2d 699, 707 (Minn. App. 1996); Nygard v. Walsh, No. A13-1103, 2014 WL 349761, at *4-*5 (Minn. App. Feb. 3, 2014). Nygard affirmed summary judgment for defendant, because “where an eyewitness saw Nygard take a full swing at his child and the child bleeding; where neighbors reported episodes of yelling that created concerns about the safety of Nygard’s son; and where an investigating officer corroborated the yelling; Nygard’s proffered evidence [affidavits from himself, his wife, and his son denying that he ever struck his son] cannot create a genuine issue of material fact sufficient to withstand summary judgment. Even giving Nygard the benefit of all reasonable inferences, we conclude, as a matter of law, that he is unable to show that it is highly probable that Walsh’s underlying statement that Nygard hit his son was false.” 2014 WL 349761, at *5.

14 ECF #269 at 8-9.

15 ECF #269 at 10 (emphasis added).

16 There is “some debate as to whether the element of falsity must be established by clear and convincing evidence or by a preponderance of the evidence.” Harte-Hanks Commc’ns. v. Connaughton, 491 U.S. 657, 661 n.2 (1989) (expressing no view on the issue). “Most courts that have addressed the issue, however, have required the higher

standard of proof.” R. Sack, SACK ON DEFAMATION: LIBEL, SLANDER, AND RELATED

PROBLEMS §3:4 at 3-14 – 3-15 & n.52 (4th ed. 2010 & Supp. 2013).

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D. Disputed element: Knowledge of falsity/high degree of subjective awareness of probable falsity

A public-figure plaintiff such as Ventura “must show through clear and

convincing evidence that the defendant’s fault amounted to actual malice. … Actual

malice requires acting with ‘knowledge that the statements were false or

reckless

disregard of whether they were true or false.’ … Accordingly, the plaintiff must show

that the ‘defendant in fact entertained serious doubts as to the truth of his publication.’” 17

“[R]eckless disregard” of whether statements are true or false means “a high degree” 18 of

“subjective awareness of probable falsity.” 19 “Essentially, Ventura must prove Kyle was

aware his statements in American Sniper were probably false.” 20

II. Liability – Counts II and III (Misappropriation/Unjust Enrichment)

A.

First Amendment/free-expression limitations on Counts II and III.

In

case after case after case, courts across the country have rejected

misappropriation and unjust enrichment claims in the context of expressive works –

sometimes based on narrow definitions of the claims, sometimes based on exceptions to

the causes of action (such as exceptions for news, biographies, and other expressive

works), sometimes because of the First Amendment, sometimes on multiple grounds.

Ventura’s claims here should also fail.

17 Stepnes, 663 F.3d at 963 (internal citations omitted).

18 Masson, 501 U.S. at 510 (quoting Garrison v. Louisiana, 379 U.S. 64, 74 (1964)).

19 Gertz v. Robert Welch, Inc., 418 U.S. 323, 334 n.6 (1974) (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

20 ECF #269 at 10.

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Ventura offers nothing that would distinguish his case from any other defamation

claim brought by a well-known public figure. If any such plaintiff could claim that

allegedly false statements within a book or broadcast could support not only claims for

defamation but also claims for misappropriation or unjust enrichment, the potential for

wreaking havoc with free expression would be enormous. The focus could shift from any

injury actual suffered by the plaintiff to the supposed benefits that the defendant sought

or obtained.

Real people, famous and otherwise, are described in articles, books, broadcasts,

and films hundreds of thousands of times every day. If the statements about them are

false, they can sue for libel. They have no reason to assert, and very few even bother to

assert, claims for misappropriation or unjust enrichment as Ventura has done here. 21

21 Where both defamation and another claim arise out of the same facts, consistency, common law, and the First Amendment require that the defendant’s liability be analyzed under the standards applicable to defamation. See Hustler Magazine v. Falwell, 485 U.S. 46, 57 (1988); MSK EyES Ltd. v. Wells Fargo Bank, 546 F.3d 533, 544 (8th Cir. 2008) (“Claims arising out of purported defamatory statements, such as tortious interference, are properly analyzed under the law of defamation.”); Beverly Hills Foodland, Inc. v. United Food & Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994) (“a plaintiff may not avoid the protection afforded by the Constitution … merely by the use of creative pleading”); Wild v. Rarig, 302 Minn. 419, 447, 234 N.W.2d 775, 793 (1975); Moore, 821 N.W.2d at 597-99. Accord, European Roasterie, Inc. v. Dale, Civ. No. 10-53 (DWF/JJG), 2010 WL 1782239, at *5 (D. Minn. May 4, 2010) (“Tortious interference claims that are duplicative of a claim for defamation are properly dismissed.”); Guzhagin v. State Farm Mut. Auto. Ins. Co., 566 F. Supp. 2d 962, 969 (D. Minn. 2008) (“a Minnesota plaintiff is not permitted to avoid defenses to a defamation claim by challenging the defamatory statements under another doctrine”); Pinto v. Internationale Set, Inc., 650 F. Supp. 306, 309 (D. Minn. 1986) (“[I]n Minnesota, a plaintiff cannot elude the absolute privilege by relabeling a claim that sounds in defamation.”); Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 310 (Minn. 2007)

(“Regardless of the label, appellant’s claims are in essence defamation claims

find that absolute privilege operates to bar all of the claims at issue on this appeal.”);

, and we

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Notwithstanding the broad language of the RESTATEMENT (SECOND) OF TORTS

§ 652 C, comments and illustrations to that section restrict the common-law cause of

action in order to protect free expression. A “plaintiff’s name is not appropriated by mere

mention of it, or by reference to it in connection with legitimate mention of his public

activities … .” 22 A plaintiff does not have “the right to object merely because his name or

his appearance is brought before the public, since neither is in any way a private matter

and both are open to public observation.” 23 Illustration 9 following RESTATEMENT

(SECOND) OF TORTS § 652C, comment d, provides a particularly pertinent example of a

non-actionable use of a name or likeness: “A writes and published an autobiography in

which at several points, he names B as one of his friends. This is not an invasion of B’s

privacy.”

Courts in other states that, like Minnesota, have embraced the misappropriation

formulation of the RESTATEMENT (SECOND) OF TORTS § 652 C, have refused to apply it

Zagaros v. Erickson, 558 N.W.2d 516, 523 (Minn. App. 1997) (defamation standards and privileges apply to any “claim [that] is essentially relabeling a defamation claim”); McGaa v. Glumack, 441 N.W.2d 823, 827 (Minn. App. 1989) (“In Minnesota, one ‘cannot elude the absolute privilege by relabeling a claim that sounds in defamation.’”) (citations omitted). Other courts take the same approach. E.g., Mt. Hood Polaris, Inc. v. Martino (In re Gardner), 563 F.3d 981, 992 (9th Cir. 2009); Ruffin-Steinback v. de Passe, 82 F. Supp.2d 723, 731 (E.D. Mich. 2000) (“[W]here the plaintiff’s theory of liability stems from the alleged falsity of the information disseminated, the action is properly considered as an action for defamation or false light invasion of privacy, not as an action for violation of the right of publicity.”), aff’d, 267 F.3d 457,462-63 (6th Cir. 2001); Apostle v. Booth Newspapers, Inc., 572 F. Supp. 897, 905 (W.D. Mich. 1983); Dresbach v. Doubleday & Co., Inc., 518 F. Supp. 1285, 1288 (D.D.C. 1981); Channel 4, KGBT v. Briggs, 759 S.W.2d 939, 942 (Tex. 1988); Hernandez v. Hayes, 931 S.W.2d 648, 654 (Tex. App., San Antonio 1996).

22 RESTATEMENT (SECOND) OF TORTS § 652C, comment d.

23 Id.

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to the use of the plaintiff’s name or likeness in news reports, biographies, and other

expressive works. For example:

In Battaglieri v. Mackinac Ctr. for Pub. Policy, the Michigan Court of Appeals

stated that a defendant can be “liable for the tort of misappropriation of

likeness only if defendant’s use of plaintiff's likeness was for a predominantly

commercial purpose. … The use must be mainly for purposes of trade, without

a redeeming public interest, news, or historical value.” 24

Seale v. Grammercy Pictures 25 arose out of a movie about the Black Panther

Party that used Bobby Seale’s name and likeness. Seale alleged claims for

infringement of his right of publicity and for false-light invasion of privacy.

Seale objected to a scene in the film that showed him in a closed room

engaging in the purchase of guns from an Asian gun dealer and another scene

showing him and others confronting Eldridge Cleaver over the role that

violence should play in the Black Panther Party’s activities following the

assassination of Dr. Martin Luther King, Jr. The false-light claim survived

summary judgment, but the publicity claim did not. The federal district court

discussed both “right of publicity” and “misappropriation of name and

likeness,” noting that “the use of a person’s name and likeness in news,

entertainment, and creative works does not infringe on the right of publicity”

unless the “name or likeness is used solely to attract attention to a work that is

not related to the identified person,” and “the First Amendment provides

greater protection to works of artistic expression such as movies, plays, books,

and songs, than it provides to pure ‘commercial’ speech.” 26 After a bench trial

on the false light claim, the court entered judgment for defendants, because –

24 680 N.W.2d 915, 919-20 (Mich. App. 2004).

25 949 F. Supp. 331 (E.D. Pa. 1996).

26 Id. at 336-37.

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although the film portrayed Seale in a false light – the defendants did not act

with actual malice. 27

James Nichols – the brother of Terry Nichols, who along with Timothy

McVeigh was arrested and convicted for the bombing of the Federal Building

in Oklahoma City – objected to Michael Moore’s well-known Bowling for

Columbine documentary because it included statements that at a farm in

Michigan: “McVeigh and the Nichols brothers made practice bombs before

Oklahoma City. Terry and James were both arrested in connection to the

bombing. Terry Nichols was convicted and received a life sentence. Timothy

McVeigh was executed, but the feds didn’t have the goods on James so the

charges were dropped.” James Nichols sued for defamation, false light

invasion of privacy, and right of publicity. 28 The federal district court in

Michigan granted judgment on the pleadings on the count for violation of the

right to publicity, even though the defamation claim survived that first round of

motions. 29 The district court later granted summary judgment to Moore

because the statements about James Nichols were substantially true accounts of

public records and reliable news reports and because plaintiff had not

presented evidence of actual malice. 30

Ruffin-Steinback v. de Passe 31 involved a television mini-series about the

Temptations. One of the plaintiffs was Earline Ruffin, the woman who raised

David Ruffin although she was not his biological mother. She claimed

27 964 F. Supp. 918 (E.D. Pa. 1997), aff’d, 156 F.3d 1225 (3d Cir. 1998).

28 Nichols v. Moore, 334 F. Supp.2d 944 (E.D. Mich. 2004).

29 334 F. Supp.2d at 955-57 (E.D. Mich. 2004) (explaining, at 955 that: “Michigan courts have also recognized a fundamental difference between the use of a person’s identity in connection with a legitimate news item and its commercial use in an advertisement for the pecuniary gain of the user”).

30 396 F. Supp.2d 783 (E.D. Mich. 2005), aff’d, 477 F.3d 396 (6th Cir. 2007).

31 82 F. Supp.2d 723 (E.D. Mich. 2000).

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defamation and false light based on a line in the TV mini-series spoken by the

actor portraying David Ruffin: “My momma owed some pimp some money.

Instead of paying him she gave me to him.” There was a question whether the

statement sufficiently identified Earline Ruffin so as to defame her, but her

death after the complaint was filed foreclosed her claim. 32 Another plaintiff,

former manager/agent Johnnie Mae Matthews, objected to a scene implying

that she stole money and a car from the Temptations; her defamation and false-

light claims survived summary judgment. 33 The Sixth Circuit affirmed

summary judgment for defendants, concluding that “the use of plaintiffs’

fictionalized likenesses in a work protected by the First Amendment and the

advertising incidental to such uses did not give rise to a claim for relief under

the plaintiffs’ rights of publicity for the reasons stated by the district court.” 34

The district court had rejected plaintiffs’ contention “that the right of publicity

should extend to defendants' actions in this case because, they allege, the

depiction of the plaintiffs in this case was partially fictionalized and untrue.

The scope of the right of publicity does not depend, however, on the fictional

or non-fictional character of the work. Furthermore, to the extent that courts

have been reluctant to extend the right of publicity to depictions of life-stories

based on First Amendment considerations, those considerations are no less

relevant whether the work in question is fictional, non-fictional or a

combination of the two. where the plaintiff's theory of liability stems from

the alleged falsity of the information disseminated, the action is properly

considered as an action for defamation or false light invasion of privacy, not as

an action for violation of the right of publicity.35

32 82 F. Supp.2d at 733.

33 Id. at 732-33.

34 267 F.3d at 462 (emphasis added).

35 82 F. Supp.2d at 730-31 (emphasis added).

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In short, the RESTATEMENT does not preclude others from incorporating that person’s

name, features, or biography in a literary work, motion picture, news, or entertainment

story, 36 or in advertisements or appearances to promote such works. 37

36 See also Matthews v. Wozencraft, 15 F.3d 432, 437-40 (5th Cir. 1994); Farah v. Esquire Magazine, Inc., 863 F. Supp.2d 29, 39 (D.D.C. 2012) (“[T]he First Amendment provides a privilege against a misappropriation invasion of privacy claim, permitting ‘the use of a plaintiff’s name or likeness when that use is made in the context of, and reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public concern.’”) (rejecting claim by critic of President Obama that defendants misappropriated his name in an Internet posting that took a satirical swipe at “birthers”); Hart v. Elec. Arts, Inc., 808 F. Supp. 2d 757, 102 & n.34 (D.N.J. 2011); Parisi v. Sinclair, 774 F. Supp. 2d 310, 318 (D. D.C. 2011); Whitehurst v. Showtime Networks, Inc., No. 1:08–CV–47, 2009 WL 3052663, at *6-*8 (E.D. Tex. Aug. 28, 2009); Prince v. Viacom, Inc., Civ. No. H-07-4274, 2008 WL 1782288, at *3 (S.D. Tex. Apr. 18, 2008) (“People do not have a legally protectable interest in their pictures, names, or activities. We are all available as material for news stories, novels, histories, and the rest. Others can use what we do for profit. Newspapers only survive if they profit from the pictures and stories of people – uncompensated and non-consenting people.”); Whitehead v. Paramount Pictures Corp., 53 F. Supp. 2d 38, 53 (D.D.C. 1999) (“there is no tort for invasion of privacy for appropriating the story of another person’s life”).

37 Ruffin-Steinback v. de Passe, 267 F.3d 457, 462 (6th Cir. 2001) (holding that use of plaintiffs’ likenesses “in a work protected by the First Amendment and the advertising incidental to such uses did not give rise to a claim for relief under the plaintiffs’ rights of publicity”) Whitehurst, 2009 WL 3052663 at *8 (“Because the film itself is protected and not subject to suit, it follows that the promotion of the film is protected.”); Thoroughbred Legends, LLC v. Walt Disney Co., Civ. No. 1:07-CV-1275-BBM, 2008 WL 616253, at *12 (N.D. Ga. Feb. 12, 2008) (“The use of Plaintiffs’ likenesses in advertising the film is protected because the film itself is protected.”); Nichols, 334 F. Supp. 2d at 957 (use of clip from movie featuring plaintiff for purposes of advertising the film did not violate plaintiff’s right of publicity); Lane v. Random House, 985 F. Supp. 141, 146 (D.D.C. 1995) (“The newsworthiness privilege applies to advertisements for books, films, and other publications concerning matters of public interest.”); Seale v. Gramercy Pictures, 949 F. Supp. 331, 337 (E.D. Pa. 1996) (First Amendment protected defendants’ “creation, production, and promotion of a motion picture and history book which integrates fictitious people and events with the historical people and events surrounding the emergence of the Black Panther Party in the late 1960’s”) (emphasis added).

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Regardless of the precise nature of the claim or variations among state laws, “there

will be no recovery where the plaintiff’s name or likeness is used in connection with

communications about matters of legitimate public interest, so long as there is a real

relationship between the plaintiff and the subject matter of the publication. A contrary

rule might not survive constitutional scrutiny.” 38 Like other communications in

newspapers, magazines, books, movies, and radio and television broadcasts, AMERICAN

SNIPER was about matters of legitimate public interest. In the circumstances of this case,

Ventura’s bid “for all property and benefits” from income from AMERICAN SNIPER, 39

violates both the common law and the First Amendment.

In Simon & Schuster, Inc. v. Members of the NY State Crime Victims Bd., 502 U.S.

105 (1991), the Supreme Court invalidated, on First Amendment grounds, a “Son of

Sam” statute, which New York’s legislature had enacted based on a form of “unjust

enrichment” reasoning:

As the author of the statute explained: “It is abhorrent to one’s sense of

justice and decency that an individual

can expect to receive large sums of

money for his story once he is captured — while five people are dead, [and] other people were injured as a result of his conduct.”

Id. at 108. The New York statute required that an accused or convicted criminal’s income

from works describing his crime be deposited in an escrow account and then made

available for a five-year period to the victims of the crime and the criminal’s other

creditors. Id. If the time-limited, criminal author provisions of that statute transgressed

38 SACK ON DEFAMATION, at 12-84 – 12-85.

39 The claim is asserted explicitly under the unjust enrichment claim (Complaint, ¶51) and implicitly under the misappropriation claim.

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the First Amendment – and they did – then a broader and more ambiguous application of

“unjust enrichment” claims to authors and publishers also must wither under First

Amendment scrutiny.

In Simon & Schuster, Justice Kennedy concurred in invalidating the statute,

arguing that preventing criminals from profiting from their speech-related activities was

not among the “few legal categories in which content-based regulation has been

permitted or at least contemplated.” 502 U.S. at 127 (Kennedy, J., concurring). The

Court’s Simon & Schuster opinion did not reject Justice Kennedy’s discussion, but

simply noted that “this case does [not] present a need to address Justice Kennedy’s

discussion of what is a longstanding debate … on an issue which the parties before us

have neither briefed nor argued.” 502 U.S. at 122 n.*. Two decades later, the Court did

address, and accept, just such a categorical approach to the First Amendment. Brown v.

Entm’t Merchs. Ass’n,

, 131 S. Ct. 2729, 2733-34, 180 L.Ed.2d 708, 715

(2011); United States v. Stevens, 559 U.S. 460, 468-69 (2010).

Under the Brown and Stevens approach, the First Amendment prevents Ventura

from extracting book profits from the Kyle Estate, even if Chris Kyle made false

statements about Ventura that he believed to be false. Speech that “unjustly enriches” the

speaker is not among the limited categories of speech that do not enjoy full First

Amendment protection, 40 even if a court or jury concludes that the speaker is telling

known lies in order to enhance his own public image or other interests. 41

40 Brown v. Entm’t Merchs. Ass’n,

715; United States v. Stevens, 559 U.S. at 468-69; State v. Melchert-Dinkel, No. A11-

, 131 S. Ct. at 2733-34, 180 L. Ed.2d at

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This Court previously permitted Ventura’s claims to proceed under a broad

construction of Minnesota law, reasoning that Chris Kyle’s statements “are not protected

by the First Amendment if they were knowingly false and defamatory.” 42 Such use of the

defamation standard in the context of a misappropriation or right-of-publicity claim is

unusual. 43 This Court’s interpretation of Minnesota law 44 conflicts with the law

applicable to such claims in Texas, where Kyle resided, and in New York, where he

0987, 2014 WL 1047082, at *5 (Minn. March 19, 2014) (“following the guidance of the Supreme Court, we are wary of declaring any new categories of speech that fall outside of the First Amendment’s umbrella protections”).

41 United States v. Alvarez,

42 ECF #125 at 6. Defendant’s proposed Special Verdict Form incorporates the three elements from this statement (knowledge; falsity; and defamatory) as predicates for recovery under Counts II and III, as well as for any recovery under Count I.

43 See, e.g., Hustler, 485 U.S. at 52 (“the ‘actual malice’ standard does not apply to the tort of appropriation of a right of publicity”); Guglielmi v. Spelling-Goldberg Prods., 603 P.2d 454, 461 (Cal. 1979) (Bird, C.J., concurring) (plaintiff’s “effort to import the ‘actual malice’ standard of liability in defamation actions” to a claim for misappropriation “is misguided” because “[n]o such constitutional dichotomy exists in this area between truthful and fictional accounts”); see also Rogers v. Grimaldi, 875 F.2d 994, 1004-05 (2d Cir. 1989); Winter v. DC Comics, 69 P.3d 473, 478 (Cal. 2003) (“the right of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals”); Comedy III Prods., Inc. v. Gary Saderup, Inc., 21 P.3d 797, 802 n.7 (Cal. 2001) (explaining that “Chief Justice Bird’s views in Guglielmi commanded the support of the majority of the court”); see generally Hart v. Elec. Arts, Inc., 717 F.3d 141, 149-66 (3d Cir. 2013) (analyzing “the different approaches courts have taken to resolving the tension between the First Amendment and the right of publicity”).

44 In 1970, Judge Neville interpreted the right of privacy as applying to ““the publication of biographical data of a well-known figure … for the purposes of capitalizing upon the name by using it in connection with a commercial project other than the dissemination of news or articles or biographies.” Uhlaender v. Henrickson, 316 F. Supp. 1277 (D. Minn. 1970) (emphasis added). That interpretation of Minnesota law would bar Ventura’s claims in connection with the dissemination of Chris Kyle’s biography.

, 132 S.Ct. 2537, 183 L. Ed.2d 574 (2012).

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physically made statements during broadcast interviews. 45 To the extent that the

application of specific state law is outcome-determinative, Texas law should apply. 46

B. Elements of claim - misappropriation

Both Minnesota 47 (the state of Ventura’s residence) and Texas 48 (the state of Chris

Kyle’s residence and the place where he wrote the Book) have recognized the privacy tort

of misappropriation as articulated in the RESTATEMENT (SECOND) OF TORTS, § 652C. 49

That section provides: “One who appropriates to his own use or benefit the name or

likeness of another is subject to liability to the other for invasion of his privacy.” The

goal of this rule is to allow an individual “the exclusive use of his own identity.” 50

Although the protection of an individual’s personal feelings against mental distress “is an

45 See ECF #25 at 14-15, n. 6; see also Bogie v. Rosenberg, 705 F.3d 603, 614-16 (7th Cir. 2013) (misappropriation claim dismissed as matter of law because of newsworthiness/public-interest and incidental-use exceptions; plaintiff appeared for 16 seconds in Joan Rivers documentary – 0.3 percent of the entire film) (applying Wisconsin law, interpreted in light of equivalent New York precedents), attorney fees awarded to defendant, 2013 WL 5423055, *6-*7 (W.D. Wis. Sept. 26, 2013) (plaintiff’s claim was frivolous because she had “no basis in reality” for alleging that her appearance “substantially contributed to defendants’ commercial gain”).

46 See pp.22-25 below.

47 Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231, 233-35 (Minn. 1998); see also 4A Minn. Prac., Jury Instr. Guides—Civil CIVJIG § 72.15 (2006 5th ed.) (listing RESTATEMENT § 652 C comments as authorities recognized under Minnesota law).

48 Express One Int’l v. Steinbeck, 53 S.W.3d 895 (Tex. App. 2001); see also Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994).

49 New York (the state where Chris Kyle made Published Statements identifying Ventura by name) does not recognize any of the common law privacy torts. Messenger v. Gruner + Jahr Printing & Publ’g, 94 N.Y.2d 436, 441, 727 N.E.2d 549, 551 (N.Y. 2000). Instead, New York provides a limited statutory right of privacy under Civil Rights Law §§50 and 51. Id. The Complaint does not assert any cause of action under that statute, or any other statute.

50 RESTATEMENT (SECOND) OF TORTS § 652C, comment a.

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important factor leading to a recognition of the rule, the right created by it is in the nature

of a property right, … which will entitle the licensee to maintain an action to protect it.” 51

Appropriation claims commonly arise from “use of the plaintiff’s name or likeness

to advertise the defendant’s business or product, or for some similar commercial

purpose.” 52 Although this rule is “not limited to commercial appropriation,” 53 a

“plaintiff’s name is not appropriated by mere mention of it, or by reference to it in

connection with legitimate mention of his public activities … .” 54 A plaintiff does not

have “the right to object merely because his name or his appearance is brought before the

public, since neither is in any way a private matter and both are open to public

observation.” 55 Illustration 9 following RESTATEMENT (SECOND) OF TORTS § 652C,

comment d, provides a particularly pertinent example of a non-actionable use of a name

or likeness: “A writes and published an autobiography in which at several points, he

names B as one of his friends. This is not an invasion of B’s privacy.” As § 652C,

comment d further explains, the value of one’s name or likeness is not appropriated

“when it is published for purposes other than taking advantage of his reputation, prestige,

or other value associated with him, for purposes of publicity” and the “fact that the

defendant is engaged in the business of publication, for example of a newspaper, out of

51 Id.

52 RESTATEMENT (SECOND) OF TORTS § 652C, comment b.

53 Id.

54 RESTATEMENT (SECOND) OF TORTS § 652C, comment d.

55 Id.

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which he makes or seeks to make a profit, is not enough to make the incidental

publication a commercial use of the name or likeness.”

In ‘join[ing] the majority of jurisdictions and recogniz[ing] the tort of invasion of

privacy” 56 – including misappropriation – in 1998, the Minnesota Supreme not only

expressly adopted the RESTATEMENT (SECOND) OF TORTS § 652C, but also implicitly

accepted that section’s explanatory comments. 57 Courts in other jurisdictions have

construed those comments to preclude claims based upon the incidental use of names and

likenesses in newspapers, books, and other expressive works, 58 observing a crucial

distinction between situations in which the defendant makes an incidental use of the

plaintiff’s name, portrait or picture and those in which the defendant uses the plaintiff’s

name, portrait or picture deliberately to exploit its value for advertising or trade

purposes. 59

56 Lake, 582 N.W.2d at 235.

57 See 4A Minn. Prac., Jury Instr. Guides—Civil CIVJIG § 72.15 (2006 5th ed.) (listing RESTATEMENT § 652 C comments as authorities recognized under Minnesota law).

58 Albright v. Morton, 321 F. Supp.2d 130, 139-40 (D. Mass. 2004), aff’d, 410 F.3d 69, 2005 U.S. App. LEXIS 10182, at *10 (1st Cir. 2005); Cox v. Hatch, 761 P.2d 556, 565-66 (Utah 1988).

59 Benally v. Hundred Arrows Press, 614 F. Supp. 969, 979-80 (D. N.M. 1985), reversed and remanded on other grounds and as to other claims and other defendants, sub nom. Benally v. Amon Carter Museum of Western Art, 858 F.2d 681 (10th Cir. 1988); Tropeano v. Atlantic Monthly Co., 400 N.E.2d 847, 850 (Mass. 1980).

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This Court permitted Ventura’s claim to proceed under a broad construction of

Minnesota law. 60 Texas courts have not permitted such broad application of the

RESTATEMENT. 61

To the extent that the application of Texas or Minnesota law would be outcome-

determinative, the Court should apply Texas law. Under Minnesota choice-of-law

standards, 62 Minnesota substantive law could not be constitutionally applied to a

60 ECF #125. The Court reasoned that Chris Kyle’s statements “are not protected by the First Amendment if they were knowingly false and defamatory.” ECF #125 at 6. Such use of the defamation standard in the context of a misappropriation or right-of-publicity claim is unusual. See n.43 above. This Court’s interpretation of Minnesota law conflicts with the law applicable to such claims in Texas, where Kyle resided, and in New York, where he physically made statements during broadcast interviews. See ECF #25 at 14-15, n. 6; see also Bogie v. Rosenberg, 705 F.3d 603, 614-16 (7th Cir. 2013) (misappropriation claim dismissed as matter of law because of newsworthiness/public- interest and incidental-use exceptions; plaintiff appeared for 16 seconds in Joan Rivers documentary – 0.3 percent of the entire film) (applying Wisconsin law, interpreted in light of equivalent New York precedents), attorney fees awarded to defendant, 2013 WL 5423055, *6-7 (W.D. Wis. Sept. 26, 2013) (plaintiff’s claim was frivolous because she had “no basis in reality” for alleging that her appearance “substantially contributed to defendants’ commercial gain”).

61 Matthews, 15 F.3d at 437 (“The protection of ‘name or likeness’ under Texas law … does not include a person’s life story. If Texas law did protect such a right, it was not ‘appropriated’ [by having undercover narcotics officer’s life events included in a novel and motion picture].”); id. at 439 (“Even if Texas courts recognized a cause of action for misappropriation of events in one’s life, it likely would recognize an exception for biographies.”); Prince 2008 WL 1782288, at *3 (“People do not have a legally protectable interest in their pictures, names, or activities. We are all available as material for news stories, novels, histories, and the rest. Others can use what we do for profit.”).

62 In diversity of citizenship cases, federal courts “look to the choice-of-law rules of the forum State to determine which law applies.” See, e.g., H&R Block Tax Servs. LLC v. Franklin, 691 F.3d 941, 943 (8th Cir. 2012) (citation omitted). Minnesota substantive law does not apply to the claims automatically; rather, the federal court must examine Minnesota’s choice-of-law rules to determine whether another state’s law is more appropriate. Travelers Prop. Cas. Co. of Am. v. St.-Gobain Tech. Fabrics Canada Ltd., 474 F. Supp. 2d 1075, 1083 (D. Minn. 2007).

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defendant who lacked any connection to the state of Minnesota, 63 thus ending the choice-

of-law analysis in favor of applying Texas law. Although national distribution of the

Under Minnesota’s choice-of-law rules, the reviewing court must first consider “whether the choice of one state’s law over another’s creates an actual conflict.” Jepson v. Gen. Cas. Co., 513 N.W.2d 467, 469 (Minn. 1994). “A conflict exists if the choice of one forum’s law over the other will determine the outcome of the case.” Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 604 N.W.2d 91, 94 (Minn. 2000). Then, the court must ask ‘whether the law of both states’ can be constitutionally applied.” Id.; see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 815-23 (1985) (finding a Due Process violation when the court applies Kansas substantive law without considering differences in other states).

If there is an outcome determinative conflict, and if more than one of the state laws at issue may constitutionally be applied, Minnesota courts will next examine the five choice-influencing factors: (1) predictability of result; (2) maintenance of interstate and international order; (3) simplification of judicial task; (4) advancement of the forum’s governmental interest; and (5) application of the better rule of law. See, Jepson, 513 N.W.2d at 470 (citing Milkovich v. Saari, 203 N.W.2d 408, 412 (Minn. 1973)). This test applies in both tort and contract cases. Id.

63 “[F]or a State’s substantive law to be selected in a constitutionally permissive manner, that State must have a significant contact or significant aggregation of contacts [with the occurrence giving rise to the litigation], creating state interests such that choice of its law is neither arbitrary nor fundamentally unfair.” See, Jepson, 513 N.W.2d at 469- 70, quoting Allstate Ins. v. Hague, 449 U.S. 302,312-13 (1981).

Although Defendant did not and does not challenge this Court’s personal jurisdiction over Kyle, the Supreme Court recently emphasized the importance – for purposes of determining whether a defendant’s due process rights would be violated by the forum – of considering where the defendant’s alleged conduct took place that made the tort complete. Cf. Walden v. Fiore, 134 S. Ct. 1115 (Feb. 25, 2014) (“The proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant’s conduct connects him to the forum in a meaningful way.”), id. (finding lack of personal jurisdiction over defendant because none of the alleged tortious actions of the defendant occurred in plaintiff’s state of residence). A forum may have sufficient minimum contacts to assert jurisdiction over a defendant and yet still lack a constitutional basis for applying its own law. Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (noting a choice-of-law analysis is distinct from the baseline minimum-contacts jurisdictional analysis). Walden is significant for purposes of the present case because, if the forum lacks even the minimum contacts for personal jurisdiction, it a fortiori must lack sufficient constitutional basis for applying its own law.

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Published Statements and Ventura’s residence in Minnesota may provide sufficient

contacts with the State of Minnesota for Ventura’s defamation claim, the pertinent

conduct that made Ventura’s misappropriation (and unjust enrichment) claims complete

did not occur in Minnesota. Rather, Chris Kyle wrote AMERICAN SNIPER in Texas and

received royalty payments in Texas, his state of residence.

Even if both Minnesota and Texas substantive law could constitutionally be

applied to the misappropriation and unjust enrichment claims, under the only pertinent

two factors of the five-factor test, 64 Texas is the state where nearly all of the significant

litigation-producing contacts occurred, and Texas – rather than Minnesota – has the

stronger governmental interest in Kyle’s conduct – both in preventing “unjust

enrichment” to him and in protecting his free speech rights. Both Ventura’s

misappropriation claim and his unjust enrichment claim appear to seek all of Chris Kyle’s

income from the sale of AMERICAN SNIPER books and/or any subsidiary or ancillary

rights sales. 65 Unlike injury to reputation, 66 that aspect of damages is complete upon

Kyle’s receipt of “unjust enrichment” (which would occur in Kyle’s home state of

64 The factors that consider the “maintenance of interstate order” and the “advancement of the forum’s governmental interest” are the most pertinent in this case. Courts have found that the factors considering “predictability of result” and “simplification of judicial task” are not important or not valuable in torts cases. See, e.g., Jepson, 513 N.W.2d at 473; Myers v. Gov’t Emps. Ins. Co., 225 N.W.2d 238 (Minn. 1974). Minnesota courts have not placed an emphasis on “the better rule of law” factor in more than twenty years. See Nodak Mut. Ins. Co., 604 N.W.2d at 96.

65 See n.39 above.

66 Cf. Walden, 134 S. Ct. at 1123-24.

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Texas), rather than upon the effect of Kyle’s actions on Ventura (in Minnesota and/or

Mexico and/or elsewhere). 67

C. Elements of claim – unjust enrichment

Under Minnesota law, a defendant has been unjustly enriched if he “has

knowingly received or obtained something of value for which [he] ‘in equity and good

conscience’ should pay.” 68 Unjust enrichment claims “do not lie simply because one

party benefits from the efforts or obligations of others, but instead it must be shown that a

party was unjustly enriched in the sense that the term ‘unjustly’ could mean illegally or

unlawfully.” 69

Under Texas law, unjust enrichment is not an independent cause of action; rather,

an action for restitution, based on unjust enrichment, will lie to recover money received

on a consideration that has failed in whole or in part. 70 Because this case does not involve

any failure of consideration, Ventura has no claim under Texas law. Texas law should

apply. See pp.22-25 above.

At common law, Ventura’s defamation claim – win or lose – provides an adequate

remedy at law, foreclosing any “equitable” claim on Chris Kyle’s proceeds from

67 See also ECF #125 at 7-8 (unjust enrichment claims relate to the defendant’s benefits rather than the plaintiff’s damage).

68 ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 306 (Minn. 1996) (citations omitted).

69 Id.; see also McFarland v. E&K Corp., 18 U.S.P.Q.2d 1246, 1991 U.S. Dist. LEXIS 1496, *8 (D. Minn. 1991); First Nat’l Bank v. Ramier, 311 N.W.2d 502, 504 (Minn. 1981).

70 See, e.g., Walker v. Cotter Props., 181 S.W.3d 895, 905 (Tex. App. 2006); Oxford Fin. Co., Inc. v. Velez, 807 S.W.2d 460, 465 (Tex. App. 1991).

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AMERICAN SNIPER. American courts have long followed the rule that courts of equity

have no jurisdiction to enjoin a libel, because the party wronged has an adequate remedy

at law in the form of an action for damages. 71 Unjust enrichment is an equitable remedy

and a “party may not have equitable relief where there is an adequate remedy at law

available.” 72

D. Disputed element – benefits obtained

This Court allowed Ventura to proceed under a broad construction of Minnesota

law that adopts a damages theory focused on the benefit received by the defendant, rather

than any injury sustained by the plaintiff related to a privacy or property right. 73 The

71 Francis v. Flinn, 118 U.S. 385, 389 (1886) (“If the publications in the newspapers are false and injurious, [plaintiff] can prosecute the publishers for libel. If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself the greater part of the litigation properly belonging to courts of law.”); Metro. Opera Ass’n v. Local 100, Hotel Empls and Rest. Empls Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001); Am. Malting Co. v. Keitel, 209 F. 351, 356 (2d Cir. 1913); Kramer v. Thompson, 947 F.2d 666, 677, 679 (3d Cir. 1991) (“the maxim that equity will not enjoin a libel has enjoyed nearly two centuries of widespread acceptance at common law”; “even a jury determination that particular statements are libelous does not address the traditional notion that equity should not intervene where legal remedies (i.e., damages) are adequate, either in practice or even just in theory”); D’Ambrosio v. D’Ambrosio, 610 S.E.2d 876, 885-86 (Va. App. 2005) (equitable remedy of injunction is inappropriate because plaintiff had an adequate remedy at law in the form of a common law action for defamation).

The Minnesota Supreme Court affirmed one injunction against commercial speech found to be false and misleading after a full jury trial, but did so under the Deceptive Trade Practices Act, not as a matter of equity. Advanced Training Sys. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984).