Legal Analysis

Nick Sandmann’s Lawyers May Have Just Cost Him Millions with a Rookie Mistake

Attorneys for Covington Catholic High School student Nicholas Sandmann filed a lawsuit on behalf of him and his family against the Washington Post on Tuesday, claiming that the paper published several false and defamatory statements about him related to his confrontation with a Native American protester in Washington, D.C. The complaint seeks $250 million in damages (noted as the amount Jeff Bezos paid when he bought the newspaper), but they may have already blown their chance at getting most of this.

The Jan. 18 incident involving Sandmann first drew national attention when video surfaced that led to media reports that Sandmann and his classmates were antagonizing Native American Nathan Phillips. Later on, additional footage was discovered that added context, showing that this was not the case, and that Phillips and a group who was present for an Indigenous People’s demonstration had approached the Covington Catholic students, who were there for a March for Life demonstration. The students, meanwhile, had been the target of insults from a group identifying as Hebrew Israelites.

The complaint cites seven articles published in the Post that allegedly contained false and defamatory statements about Sandmann, furthering the narrative that Sandmann was an instigator and a racist. The complaint accuses the Post of demonstrating negligence, as well as actual malice (knowledge of a statement’s falsity or reckless disregard for whether it’s true) in publishing the statements.

As a result of alleged harm to his reputation, Sandmann’s lawsuit asks for $50 million in compensatory damages and $200 million in punitive damages.

The punitive damages, however, may be a problem due to a requirement under Kentucky law to give sufficient notice in libel cases. The statute, KRS 411.051, says that in order to collect punitive damages, a plaintiff has to show that the defendant “failed to make conspicuous and timely publication of a correction after receiving a sufficient demand for correction.” The law specifies that a “timely” correction has to be within 10 business days after receiving a demand for one.

Sandmann’s complaint, which was filed and dated Feb. 19, 2019, says that his counsel send a demand for a retraction on Feb. 14. That’s just five days before they filed the lawsuit, which appears to be an insufficient amount of time.

The complaint shows that Lin Wood and Todd McMurtry are named as Sandmann’s attorneys. McMurtry is a member of the Kentucky bar, while Wood, G. Taylor WilsonJonathan D. Grunberg will attempt to appear in this case pro hac vice.

Law&Crime reached out to both McMurtry and the Post to find out if any other demand for retraction or correction was made prior to Feb. 14, but neither side has responded. Hours after publication, Wood tweeted about this issue, claiming that it was not improper to file the complaint because it was done after the demand for a retraction was issued, but he acknowledged that the Post still has six days from the time of the filing to issue a retraction. If the Post does take corrective action during that time, Sandmann would not be able to recover punitive damages.

In a subsequent statement to Law&Crime, Wood said the timing of the complaint was not a mistake, but intentional, so WaPo would know he means business. If they issue a retraction, then he’ll address any changes he might need to make to the complaint.

“We felt that the Post should have the added benefit of full knowledge of the seriousness of our case in making its decision on a retraction,” he said. “We do not expect the Post to retract but if it does so, we will evaluate the sufficiency of the retraction to decide if the Complaint needs to be amended.”

Note: This piece has been updated to include Lin Wood’s comment.

[Image via YouTube screengrab]

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