Mitchell McInnes drew my attention some time ago to an interesting and somewhat sensational story involving defamation and unjust enrichment in the US federal courts. Chris Kyle was a member of the US armed forces (a SEAL) and was a highly decorated sniper in the Iraq war. He told his story in a book called American Sniper, which was very successful and was made into a very successful film of the same name. There was a passage in the book in which Kyle describes an altercation in a bar with an unnamed person. In interviews, he identified the person as Jesse Ventura, former serviceman, professional wrestler and governor of Minnesota.

 

Ventura sued for defamation, unjust enrichment, and ‘appropriation’ (presumably, of personality or image). Interestingly from a comparative perspective, the defamation and appropriation claims were tried by a jury but because the unjust enrichment claim was classified as ‘equitable’, the jury was used in an ‘advisory capacity’. The jury rejected the appropriation claim, but allowed the other two. There was evidence at the trial that Kyle’s royalties to date were over $6 million. In 2014 the jury awarded $500,000 in compensation for the defamation, and (in an advisory capacity?) found that Kyle had been unjustly enriched by $1,345,477, being apparently the portion of the revenues attributable to the defamation. The court’s discussion and adoption of the jury’s findings is here: 

The defendant then took another proceeding, a motion to the same court for a verdict or a new trial on the basis that the evidence did not justify the verdicts. This motion was rejected, and this judgment has a fuller discussion of the law; it is at 63 F. Supp. 3d 1001 and also:

This judgment includes the passage from the book in which the altercation is related. The relationship between the claims in defamation and unjust enrichment is discussed. The unjust enrichment claim seems to be understood as an additional and equitable remedy for the tort of defamation, and thus to depend on the legal remedy’s being inadequate. The court rejected the defendant’s argument that the US Constitution did not permit disgorgement of profits in excess of the compensatory measure. There are a few other proceedings in the case that can be found on Lexis etc.

The altercation was left out of the film version, and was removed from copies of the book sold after the verdict.

 

In a final twist to the story, the judgment was entered against the defendant's estate. While the lawsuit was pending, Kyle was killed in 2013 at a firing range in Texas by a former marine, Eddie Ray Routh, who was convicted of murder earlier this year. 

For my part, I will not be the only one who finds it somewhat ahistorical to classify this kind of claim as ‘equitable’..it may be equitable in the sense that Lord Mansfield used the word, but not in the sense that should mean a jury trial to which the defendant is otherwise entitled is not available. But if the jury is anyway used in an advisory capacity to resolve the claim, I am left wondering how much difference this actually makes.

Lionel