Sandmann Case Against WaPo Settled

[Aclion]

he might have agreed to pay them in order to keep such information under wraps. Unlikely, but not impossible.

I can't see a judge signing off on a settlement that is blackmail.

[LimaUniformNovemberAlpha]

What are you on about, exactly?

Those presenting facts and telling the truth would be indeed a better substitute for those twisting facts and not telling the truth. Are they equivalent to flat earthers to you or...? What makes you think they're all untrained and unprofessional as many of them are trained, professional journalists with journalistic degrees no less, who have been expelled from CNN, MSNBC and Fox News for not toeing the line for example regarding recent wars America has been in.

Who exactly do you think you're even talking about?

Name one of these amateurs.

A plucky can-do attitude and a passion for alt-right "facts" does not a journalist make.

I don't know what's more ridiculous; conflating all rejection of the mainstream media with the right, or acting like this reasoning doesn't speak for itself independently of what's held up as an example.

Anyway, what comes to mind is TYT. It calls out the role of money in politics more quickly and eagerly than most of the mainstream media. It was ahead of the curve on mocking Trump for suspiciously-specifically calling himself a "stable genius," and it was concerned about him getting elected back when the mainstream media was downplaying the risk of this happening. To this day, it confronts Biden's flaws openly and honestly, instead of trying to downplay them for the sake of ideological conformity. It is uniquely honest, and I don't think it's a coincidence that they're funded by their fans, not corporations.

But regardless of any specific flaws of TYT in particular, the reasoning for why mega-corporate influence makes the mainstream media untrustworthy speaks for itself. For instance, NBC used to be in a partnership with Microsoft. Do you see how that might created incentive to generally avoid drawing any more attention than necessary to, let's say, Microsoft's sweatshops? Or to continue to avoid doing so such that one doesn't raise questions about why they weren't bringing it up earlier? Again, this is just an example. But the reasoning speaks for itself.

[Gravlen]

he might have agreed to pay them in order to keep such information under wraps. Unlikely, but not impossible.

I can't see a judge signing off on a settlement that is blackmail.

It would of course not appear to be blackmail. This is after all a settlement between two private parties, so the judge wouldn't get all the information in the motion to dismiss filed by Sandmann's lawyers.

In fact, it is clear that the motion did not disclosed the terms of the settlement.

STIPULATION OF DISMISSAL WITH PREJUDICE

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, it is hereby STIPULATED AND AGREED by and between the parties that the Complaint in this matter should be, and hereby is, dismissed with prejudice, with each side to bear its own costs.

[Gravlen]

What money? We don’t know that he got a dime.

I dunno, Sandmann was represented by L. Lin Wood the same man who represented Mr. Jewels back in the day. I just don't see Mr. Wood walking away from the table without a dollar amount hammered out.

He bungled Unsworth v. Musk, maybe he's past his prime?

[Kalaron]

Sticking it to someone is relative to the amount of trouble it's worth. Besides, I wouldn't be surprised if the settlement included an informal deal not to dig deep into the Kid's life for retaliatory information. He's already got to deal with Covington, wouldn't it be just terrible if some totally legal investigative journalism revealed that he used a certain word online? Or if it suddenly became known that he was a furry and he was subsequently ostracized at school?
I'm glad he got his money, fighting the media -and especially Bezo's corner of the media- is dangerous for one's wellbeing.

What money? We don’t know that he got a dime.

In fact, if your theory is true, he might have agreed to pay them in order to keep such information under wraps. Unlikely, but not impossible.

It is possible, but generally you get more compliance when you offer both a crook and a carrot rather than just a crook. If they intended to make him pay for it, there'd be a lot more incentive for him to try to mangle their reputation, possibly even by revealing the attempted extortion. Giving him money, regardless of the amount, gives him an incentive to shut up and they still have a boot to throw at him if he eventually got silly ideas about the importance of honesty or something.

[Shofercia]

A thing to remember about settlements in very public cases, and on of most interesting insights into the case i've gotten;
Often a party to a case will settle purely to avoid discovery. Had this case gone forward Sandmanns attorneys would be able to subpoena all sorts of documents about the reporting of the case, the release of which might be more damaging to the WaPo then what he asked for in damages.

If you have a shot at damages, why settle?

Punitive damages. Those are taxable. Let's say that you can get $10 million in regular damages, and $40 million in punitive damages. The latter are taxed, so you'd only get 15% of the $40 million in California, and the full $10 million of regular damages. That's $16 million. And then you'd pay an addition mil from your damages to the attorney, that's $15 million.

The attorney gets 28.75% of the $40 million, or $11.5 million, and the additional mil, or $12.5 million total. So if the defendant is likely to lose, they can offer $30 million in settlement, giving the plaintiffs $20 million, and the attorneys $10 million, as well as preventing attorneys from fighting costly court battles, and saving themselves $20 million.

Maybe this law was updated, or I'm misreading it, but here's the source: https://www.fulcrum.com/punitive_damage_tax/

In enacting its new punitive damages tax, California failed to consider the plaintiff’s likely federal income tax impact. As a result, plaintiffs in certain cases are better off not getting any punitive damage award at all. Because of (i) the conflict of interest between the plaintiff lawyer and his client and (ii) the large redistribution of how punitive damages would otherwise be distributed, attorneys must understand this law to negotiate a better outcome.

California’s New Punitive Damage Tax
On August 16, 2004, California enacted new Civil Code Sections 3294.5 through SB 1102. It requires 75 percent of punitive damage awards falling within its time window to be paid to the state of California. Punitive damages paid to California “shall be available for annual appropriation in the Budget Act and shall be used for purposes consistent with the nature of the award, but in no case shall be used to fund the courts or the judicial process.”

Plaintiff attorneys will not be seriously shortchanged under this law. A contingency lawyer will get almost twice what his client receives. Under Civil Code Section 3294.5, “the plaintiff’s lawyer in the action giving rise to those proceeds shall be entitled to 25 percent of the proceeds received by the fund from the punitive damages award in that action.” Since the contingency agreement with the client remains in effect, the plaintiff’s lawyer in a typical arrangement will receive almost 29% percent of the total award. Here’s the math:

From the State 25% of 75% 18.75%
From the Client 40% of 25% 10.00%
Total 28.75%
However, the client will receive 60% of 25% or 15% – approximately half what the plaintiff’s attorney receives.

A thing to remember about settlements in very public cases, and on of most interesting insights into the case i've gotten;
Often a party to a case will settle purely to avoid discovery. Had this case gone forward Sandmanns attorneys would be able to subpoena all sorts of documents about the reporting of the case, the release of which might be more damaging to the WaPo then what he asked for in damages.

We won’t know since it’s all kept confidential, but if what you suggest is true in this case, it reflects poorly on Sandmann who supposedly went into this to really stick it to WaPo on an ideological basis. But hey, being bought off is The American Way, so him being a greedy opportunist trading principles for some fast cash wouldn’t be a surprise.

He did stick it to WaPo. He sued the post for defamation, and got a settlement. Most corporations will throw in extra money for settlements to be kept confidential. If he didn't get any money, and he agreed for it to be confidential, then it's just an extraordinary unique case that's less likely to occur than the lightning striking the Courthouse in my neighborhood. Stick to the law, and stop assuming the facts, unless your goal is to entertain me, in which case: Mission Accomplished.

He sued WaPo. He got a settlement. In the eyes of most Americans, I know, having live in the US for nearly two decades, that's a victory. Stop assuming otherwise, unless you actually have data to back it up.

[Rusozak]

I must have missed something. What was the issue regarding the defamation? What was the truth of the situation versus what the Post published?

Truth: pro-Trump kids were jamming with Native Americans
Bezos' WaPo: pro-Trump kids assaulted Native American

Maybe playing music together means assault to Jeff Bezos?

If that was the case then yeah, the media should be held accountable. I'm still skeptical just because wearing a MAGA hat by itself tends to send certain xenophobic vibes, but I'll give them the benefit of the doubt on the grounds that I'd rather let a racist prick go than ruin an innocent man's life.

[Gravlen]

Truth: pro-Trump kids were jamming with Native Americans
Bezos' WaPo: pro-Trump kids assaulted Native American

Maybe playing music together means assault to Jeff Bezos?

If that was the case then yeah, the media should be held accountable. I'm still skeptical just because wearing a MAGA hat by itself tends to send certain xenophobic vibes, but I'll give them the benefit of the doubt on the grounds that I'd rather let a racist prick go than ruin an innocent man's life.

If you want more information on what actually happened you should check out the Wiki-page here for an overview, and the 106 minute video here (Phillips appear around 1 hour 12 minutes in).

[Greed and Death]

I dunno, Sandmann was represented by L. Lin Wood the same man who represented Mr. Jewels back in the day. I just don't see Mr. Wood walking away from the table without a dollar amount hammered out.

He bungled Unsworth v. Musk, maybe he's past his prime?

The case was an uphill battle.
Musk is a well known troll it is hard to convince a juror that anyone believed his tweet which would be required to show damages. Also the nature of the case didn't present an opportunity for discovery which is how you force a settlement.

It is discovery that generally drives settlements. For two reasons. First the process of discovery is expensive for companies. Every email, every meetings minutes, and every editorial decision will need to be reviewed by a team of lawyers for relevancy, and privilege. I would say 10,000 hours worth of work and 125 an hour for attorneys that do document review. That right there is 1.25 million. You will have to have associates review the Document review attorney at 500 an hour for 500 hours. This brings the total to 1.5 million dollars. Finally we will need a partner to review everything at 1,000 an hour for 100 hours. So 1.6 million just to answer discovery from the lawsuit. That is not defending the lawsuit, that is just answering discovery. The total cost of a trial for a large company like Wapo is like 2.5 million dollars.

Second we have the other major risk of discovery inadvertent disclosure. Also sorts of fun things get revealed during discovery. Things like the CEO is having an affair with his secretary, or the CFO using the corporate card to pay for prostitutes. These sorts of things can damage reputation and business. Things like are they really liberal if the CEO is sexually harassing his assistant, where else is my money going if the CFO uses corporate funds for hookers will be asked. The reputation damage can be severe even company destroying.

So WAPO's best case scenario is they lose 2.5 million in legal fees, Their worse case scenario is they pay 2.5 million in legal fees plus lose 20 million in damages to the boy plus lose 50+ million in other damages from an inadvertent disclosure.
So to split the baby and minimize risk they will likely they likely gave the kid about 10 million of which half went to his attorney.

[Shofercia]

In fact, if your theory is true, he might have agreed to pay them in order to keep such information under wraps. Unlikely, but not impossible.

Ah yes, there's the infamous "in fact" followed by "if true" which sort of annuls the "in fact" implication. There's no need for the words "in fact" in that sentence, aside from attempting to give your statement more credibility than it deserves, but hey, nice use of a rhetorical device there, Gravlen. So it's possible that this kid paid WaPo... riiight. Didn't you call him a corporate sellout earlier?

We won’t know since it’s all kept confidential, but if what you suggest is true in this case, it reflects poorly on Sandmann who supposedly went into this to really stick it to WaPo on an ideological basis. But hey, being bought off is The American Way, so him being a greedy opportunist trading principles for some fast cash wouldn’t be a surprise.

It seems like that at this point, you're just willing to throw everything against Sandmann at the wall, and hope that something sticks. I think it's fascinating that nearly all of the posts that are against the kid who sued WaPo and settled, follow the same ideological line, that the kid is either a corporate sellout because he settled, or that the kid didn't get any money, or something negative in between.

In fact, the extreme majority of posts in this thread that are against the kid who sued WaPo, are by posters who'd never vote for Trump, hate his policies with a passion, or both. As was the case with Michael Flynn, I'm focusing on a single case here, that of Sandmann, because Justice should rarely, if ever, take politics into account.

Although not a lawyer, I've worked with several law organizations, and neither I, nor any of my friends who are attorneys and have access to thousands of tort cases, have ever, I repeat, ever, seen a lawsuit where the plaintiff purchased confidentiality. In quite a few lawsuits, the defendant gave something in return for confidentiality, (like an expedited settlement,) and in all remaining ones, both parties agreed to it.

No matter how this is spun, this is a huge, or as he would say, yuge, victory for Sandmann. Anyone claiming otherwise is likely to do so based on ideological lines of being either anti-Trump, or anti-Trumpist policies, such as BREXIT.

What's truly worrying, is that we're politicizing the Judicial System in the US, as is evident by some of the responses in this very thread. It's seems to be no longer about right and wrong, but rather about supporting your team. Most Americans mistrust the legislative branch, the executive branch, the corporate media, etc. In order to prevent uprisings, the public needs an arbiter that can be trusted, and the US Judicial System is a system of last resort. Once you politicize that, riots will hit at the next depression, and there will be no arbiter of truth to stop them. With 30% of Americans being unable to afford mortgage, and 36% being unable to afford rent, that depression might just be around the corner. And that's a lot more damaging than asking WaPo to have journalistic integrity, or to GTFO.

Truth: pro-Trump kids were jamming with Native Americans
Bezos' WaPo: pro-Trump kids assaulted Native American

Maybe playing music together means assault to Jeff Bezos?

If that was the case then yeah, the media should be held accountable. I'm still skeptical just because wearing a MAGA hat by itself tends to send certain xenophobic vibes, but I'll give them the benefit of the doubt on the grounds that I'd rather let a racist prick go than ruin an innocent man's life.

That was the case. Instead of requesting access to the full tape, as actual journalists would've done, they ran with a tape that they most likely knew was bullshit.

[Shofercia]

He bungled Unsworth v. Musk, maybe he's past his prime?

The case was an uphill battle.
Musk is a well known troll it is hard to convince a juror that anyone believed his tweet which would be required to show damages. Also the nature of the case didn't present an opportunity for discovery which is how you force a settlement.

It is discovery that generally drives settlements. For two reasons. First the process of discovery is expensive for companies. Every email, every meetings minutes, and every editorial decision will need to be reviewed by a team of lawyers for relevancy, and privilege. I would say 10,000 hours worth of work and 125 an hour for attorneys that do document review. That right there is 1.25 million. You will have to have associates review the Document review attorney at 500 an hour for 500 hours. This brings the total to 1.5 million dollars. Finally we will need a partner to review everything at 1,000 an hour for 100 hours. So 1.6 million just to answer discovery from the lawsuit. That is not defending the lawsuit, that is just answering discovery. The total cost of a trial for a large company like Wapo is like 2.5 million dollars.

Second we have the other major risk of discovery inadvertent disclosure. Also sorts of fun things get revealed during discovery. Things like the CEO is having an affair with his secretary, or the CFO using the corporate card to pay for prostitutes. These sorts of things can damage reputation and business. Things like are they really liberal if the CEO is sexually harassing his assistant, where else is my money going if the CFO uses corporate funds for hookers will be asked. The reputation damage can be severe even company destroying.

So WAPO's best case scenario is they lose 2.5 million in legal fees, Their worse case scenario is they pay 2.5 million in legal fees plus lose 20 million in damages to the boy plus lose 50+ million in other damages from an inadvertent disclosure.
So to split the baby and minimize risk they will likely they likely gave the kid about 10 million of which half went to his attorney.

Thank you for the explanation! I'm wondering how'd his attorney get 50% of the damages, aren't they limited to 33% in regular cases, and 25% in custom cases, or did it go up because of potential legal costs of duking it out in Court?

[The Rich Port]

A thing to remember about settlements in very public cases, and on of most interesting insights into the case i've gotten;
Often a party to a case will settle purely to avoid discovery. Had this case gone forward Sandmanns attorneys would be able to subpoena all sorts of documents about the reporting of the case, the release of which might be more damaging to the WaPo then what he asked for in damages.

If you have a shot at damages, why settle?

Not just damages but a definitive decisive win that could cripple the newspaper and make you look like a hero in the eyes of the MAGA.

[The Reformed American Republic]

I'm not a Republican, but I'm glad this happened. Don't lie through omission so you can be woke^TM. Black Isrealites started this, and the media should have reported that.

So the Black Israelites made him a smug little bastard?

The horror. He stood and smirked while white. What he did was mild.

[Shofercia]

If you have a shot at damages, why settle?

Not just damages but a definitive decisive win that could cripple the newspaper and make you look like a hero in the eyes of the MAGA.

In what World does that cripple WaPo? It's Bezos' paper, so it doesn't have to make a profit, it just has to spread Bezos' propaganda, and judging by some of the responses in this post, even if the kid got 100% fully declared bonafide victory, some NSGers would still read WaPo. It's not like WaPo's going to go away after a single case. Heck, WaPo trashed an innocent human being who went through therapy, and cost her the job that she would've probably retired at, and numerous posters are still defending it on another issue in this thread, cause "Orange Man Bad" so would that have crippled WaPo? Not even close.

[The Reformed American Republic]

Also, a settlement doesn't mean a case is bogus.

[Galloism]

Not just damages but a definitive decisive win that could cripple the newspaper and make you look like a hero in the eyes of the MAGA.

In what World does that cripple WaPo? It's Bezos' paper, so it doesn't have to make a profit, it just has to spread Bezos' propaganda, and judging by some of the responses in this post, even if the kid got 100% fully declared bonafide victory, some NSGers would still read WaPo. It's not like WaPo's going to go away after a single case. Heck, WaPo trashed an innocent human being who went through therapy, and cost her the job that she would've probably retired at, and numerous posters are still defending it on another issue in this thread, cause "Orange Man Bad" so would that have crippled WaPo? Not even close.

Besides, it’s like people don’t understand how corporate America deals with lawsuits.

They stretch them for decades.

[Shofercia]

In what World does that cripple WaPo? It's Bezos' paper, so it doesn't have to make a profit, it just has to spread Bezos' propaganda, and judging by some of the responses in this post, even if the kid got 100% fully declared bonafide victory, some NSGers would still read WaPo. It's not like WaPo's going to go away after a single case. Heck, WaPo trashed an innocent human being who went through therapy, and cost her the job that she would've probably retired at, and numerous posters are still defending it on another issue in this thread, cause "Orange Man Bad" so would that have crippled WaPo? Not even close.

Besides, it’s like people don’t understand how corporate America deals with lawsuits.

They stretch them for decades.

And then offer a quick settlement when they're cornered, but their demand is usually time for confidentiality. "You can sign the confidential guarantee, or we can go through an appeals process of the case that we're about to settle - your choice!"

Of course people are going to sign on the dotted line. I remember a friend telling me about a case where the opposing side lost on the facts, lost on the law, lost the appeal, and still attempted to weasel out via a procedural stunt involving punitive damages aka "punies" as California law at the time gave more in punitive damages to lawyers than clients. I think it still might, not completely sure about that:

"So they claimed that we were willing to settle to deprive the State of California of vital tax dollars through settling and not having any "punies" thus depriving the state budget of all 0.0075% of their revenue. Absolutely vital. In reality, they had another clause lined up, one saying that's it's the duty of attorneys to zealously represent their client. So if we lost the "punies" motion, they were planning to hit us with lack of zealous representation, in another Court, since we'd be getting paid more than our client, and our client would be getting less overall, due to taxes that they demanded are vital to be paid, since we failed to defend the motion."

"Yeah, it was bullshit and a delay tactic. To their shock and awe, we agreed, provided that the Court transfer all of our settlement funds from the "punies" to our client, and that the trial's results be non-confidential, so that any potential members of the class can sue, thus providing the state with more tax revenue, as per their kind and gentle motion demonstrating superb care for all of California's Residents. The look on their faces was priceless. They settled shortly after. They also remembered how to act nice for the first time. And they threw in a nice sum to keep it confidential, all phrased in complex legalese."

Granted, the story was retold over beer, lots of beer, so it might be mostly bragging, but I wouldn't put it past certain attorneys, like Avenatti, to pull a stunt like that.

[Aclion]

I can't see a judge signing off on a settlement that is blackmail.

It would of course not appear to be blackmail. This is after all a settlement between two private parties, so the judge wouldn't get all the information in the motion to dismiss filed by Sandmann's lawyers.

In fact, it is clear that the motion did not disclosed the terms of the settlement.

STIPULATION OF DISMISSAL WITH PREJUDICE

Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, it is hereby STIPULATED AND AGREED by and between the parties that the Complaint in this matter should be, and hereby is, dismissed with prejudice, with each side to bear its own costs.

Judges do review settlements, and can reject them.

[Diahon]

Grumpy maybe-lawyer with a Goofy avatar gives a possible reason why Sandmann's camp settled with the Post.

[Greed and Death]

The case was an uphill battle.
Musk is a well known troll it is hard to convince a juror that anyone believed his tweet which would be required to show damages. Also the nature of the case didn't present an opportunity for discovery which is how you force a settlement.

It is discovery that generally drives settlements. For two reasons. First the process of discovery is expensive for companies. Every email, every meetings minutes, and every editorial decision will need to be reviewed by a team of lawyers for relevancy, and privilege. I would say 10,000 hours worth of work and 125 an hour for attorneys that do document review. That right there is 1.25 million. You will have to have associates review the Document review attorney at 500 an hour for 500 hours. This brings the total to 1.5 million dollars. Finally we will need a partner to review everything at 1,000 an hour for 100 hours. So 1.6 million just to answer discovery from the lawsuit. That is not defending the lawsuit, that is just answering discovery. The total cost of a trial for a large company like Wapo is like 2.5 million dollars.

Second we have the other major risk of discovery inadvertent disclosure. Also sorts of fun things get revealed during discovery. Things like the CEO is having an affair with his secretary, or the CFO using the corporate card to pay for prostitutes. These sorts of things can damage reputation and business. Things like are they really liberal if the CEO is sexually harassing his assistant, where else is my money going if the CFO uses corporate funds for hookers will be asked. The reputation damage can be severe even company destroying.

So WAPO's best case scenario is they lose 2.5 million in legal fees, Their worse case scenario is they pay 2.5 million in legal fees plus lose 20 million in damages to the boy plus lose 50+ million in other damages from an inadvertent disclosure.
So to split the baby and minimize risk they will likely they likely gave the kid about 10 million of which half went to his attorney.

Thank you for the explanation! I'm wondering how'd his attorney get 50% of the damages, aren't they limited to 33% in regular cases, and 25% in custom cases, or did it go up because of potential legal costs of duking it out in Court?

Going rate here is 30% for a settled case and 40% for a case that goes to trial. However he will also get to add legal related expenses to the 30%. Expert witnesses retained, filing fees etc. There is not a hard cap on what the attorney and client can agree to either the 1/3 is more of a guide post than a hard fast rule.

[Shofercia]

Thank you for the explanation! I'm wondering how'd his attorney get 50% of the damages, aren't they limited to 33% in regular cases, and 25% in custom cases, or did it go up because of potential legal costs of duking it out in Court?

Going rate here is 30% for a settled case and 40% for a case that goes to trial. However he will also get to add legal related expenses to the 30%. Expert witnesses retained, filing fees etc. There is not a hard cap on what the attorney and client can agree to either the 1/3 is more of a guide post than a hard fast rule.

Makes sense, thank you for the explanation!

[Gravlen]

Grumpy maybe-lawyer with a Goofy avatar gives a possible reason why Sandmann's camp settled with the Post.

So a lot of people seem to think Sandmann won a meaningful amount of money, but every part of this, from the procedural history, the timing, the announcement, the relevant law, all of it confirms Sandmann was paid mere nuisance value.

This thread offers up a good explanation. His reasoning for why the settlement is likely around the 50K mark is sound.

Here is a more accessible version, and for the really lazy:

THREAD: Did the Covington Kid just score millions of dollars?

People won't stop asking me about this headline, bullying me into writing this long explanation of why it's obvious the suit against the Washington Post was settled for peanuts. So here goes.

It’s important to note that I wouldn’t even have to write something like this if mainstream media news desks even bothered to do halfway decent legal analysis. But here we are.

So a lot of people seem to think Sandmann won a meaningful amount of money, but every part of this, from the procedural history, the timing, the announcement, the relevant law, all of it confirms Sandmann was paid mere nuisance value.

First, let’s look at the announcement:


Right off the bat, it’s clear this isn’t the kind of the statement you would make if you just scored a big pay-day off the Post. This is a statement trying to justify why Sandmann bowed out. And notice the reference to the correction. That will be important later.

So dial back the clock a few months ago. At first, the judge in the case dismissed all 33 of Sandman’s claims against the Post, finding no possibility of prevailing. Sandman’s counsel made a plea for reconsideration.

In a second order, the judge agreed to restore three of Sandman’s claims because it was still theoretically possible he could prevail if certain evidence was discovered. Those three claims involve statements about blocking Phillips:


The problem with those three claims is that they are based on statements Nathan Phillips made to the Post, which reported his words. That’s why discovery is needed on the context. Because absent something really weird, newspapers can generally report what third-parties say.

Sandmann would have to find evidence that at the time of the initial video, no newspaper would have published Philip’s account. In other words, Sandman had to disprove the Post’s “good faith reliance” on a third-party’s account. As the Post argued:


Under this defense, a newspaper can report what a third-party said unless it knew the third-party was lying or if the newspaper knew the third-party was so chronically unreliable that nobody would ever believe them about anything.

As the judge noted, it was technically possible for Sandmann to prevail if he could prove the Post knew Nathan Phillips was lying, or if the Post knew Nathan Phillips was a known liar:


So assume for a moment Sandmann could prove that what Phillips said wasn’t “substantially true” in the legal sense – i.e., his path of travel wasn’t blocked. He would still have to prove the Post knew Phillips was lying about being blocked by the teens.

Alternatively, Sandmann must prove the Post knew Phillips was “chronically unreliable,” which is nearly impossible, especially considering Phillips was unknown to the Post at the time of the reporting.
You have to show the publisher possessed information showing multiple documented lies in a recognizable pattern. And you have to show the Post ACTUALLY possessed information about Phillips, not that it SHOULD have possessed it.

So this is functionally impossible with Phillips because a history of past crimes or bad acts won’t do it, only repeated documented lies on similar matters. And it’s also obvious the Post knew nothing about Phillip’s past at all on the day this happened anyway.

A weird feature of defamation law is that it frequently rewards willful ignorance and a failure to investigate, at least on these kind of subjective knowledge questions. I don’t think it’s the way the law should be, but it is. You must prove the Post knew.

But let’s assume Sandmann could clear this series of increasingly impossible hurdles. The problem is the Post’s correction that Sandmann’s attorney mentioned. Why is that important?

Because like most states, Kentucky (where the suit was filed) has a law prohibiting any punitive or exemplary damages when a newspaper publishes a correction in response to a person’s demand for retraction.

Technically, you could still recover punitive or exemplary damages if you prove The Post committed actual malice, but it’s well understood that actual malice is the kiss of death for a lawsuit, especially in breaking new stories. Zero chance of malice here.

So even assuming Sandmann could clear each impossible hurdle, he would only be able to recover actual damages. And discovery would likely prove Sandmann had little to none. By all indications, he is doing ok, and in fact has become a beloved micro-celebrity in MAGA world.

So when Sandmann was given the chance to make document requests and take testimony from the Post and submit himself for testimony, he chose not to go forward.

The Washington Post is insured by a commercial insurance carrier, and I have sued commercial carriers my entire career. They are not settling a case for any significant amount of money without a deposition of the plaintiff.

There’s many reasons for this, most notably that you can’t accurately gauge your exposure until you understand the plaintiff and what their damages are. Not to mention that when a lawsuit collapses into dust, 90% of the time it happens in the plaintiff’s deposition.

Here, that collapse had already happened. Who cares what admissions you can secure in a plaintiff’s deposition when his case has been rendered worthless and he’s willing to exit for nuisance value?

Nuisance value is determined by how much it would cost to defend the suit until dismissal. The Post knows it will win on this issue, but also knows Sandmann could cause it incur expenses by litigating until summary judgment happens.

In this situation, I’d estimate the legal fees incurred by the insurance company if they conduct discovery on this issue and then argue summary judgment is on the magnitude of $200,000.

So a settlement in that situation needs to be quite a bit below $200k for the carrier to be financially incentivized to provide Sandmann a graceful, confidential exit from the suit that saves face. $50k is a good guess.

And you also have to remember that Sandmann was represented by Lin Wood, who was a decent trial lawyer 20 years ago, but has since become an aging weirdo who promotes QAnon, as you see from his WWG1WGA bio:

A wealthy trial lawyer isn’t what we usually picture when we think of the sad world of QAnon, but the fastest growing adherents are rich boomers got sucked into this dumb Tom Clancy-esque roleplay nonsense after getting bored waiting for the Rapture.

You may remember Lin Wood for botching the Elon Musk defamation trial. He made bizarre choices, including making Musk his first witness. Instead of systematically making the jury dislike him over the course of the trial, he opened by letting the billionaire have the spotlight.

And like a lot of old weird trial lawyers, Wood rubbed the judge the wrong way. But at least we got the delightful “JustBalls dot com” exchange (and yet another time Elon came off as charming and made the jury laugh).

Wood got rich years ago off cases that were hard to lose: Richard Jewel, Natalee Holloway’s mom, etc. But these days he is a parody of a trial lawyer. The Washington Post’s insurance carrier is not afraid of a weird QAnon guy long past his prime.

So here is the most likely way this went down: The judge’s order restored three claims, but those claims are impossible to prove and can’t produce meaningful damages. So the insurance carrier’s lawyers send Wood a letter.

It says: “We both know you can’t prove these claims and will lose at summary judgment. And even if you could win, you’d lose at trial. And even if you could win there, there are no punitive damages. But you also know it will cost us $200k to defend this case, even more at trial.”

“So we’ll make you a deal. We’ll give you $50k on these worthless claims just to get you out of our hair. The amount stays confidential, so you get to save face in public and people will think you won something.”

“But when we announce this, if you say anything publicly that even implies that we paid a lot of money, the deal is off.” Which explains Sandmann’s attorney downplaying the Post’s level of fault in his announcement.

And because he knows other trial lawyers watching these events will know exactly what transpired, and they will know the Post paid nuisance value. So you have to explain yourself and save face there as well, from a professional reputation standpoint.

You also have to remember that Lin Wood gets 33%-40% of that in legal fees along with his expenses (and imagine what kind of expenses you get charged by the QAnon guy), making it likely Sandmann got next to nothing.

And while any high-profile plaintiff’s lawyer or corporate defense lawyer could tell you what happened here, major newsrooms long ago eliminated their capacity to do legal analysis on breaking news. Their budgets have been savaged. It’s 24 year old’s writing clickbait.

Which in turn results in ostensibly respectable liberal pundits like Bloomberg’s Noah Smith telling their audiences that the Covington kid scored a “big” settlement despite having no evidence to support that conclusion:

I hope I don’t need to tell you that it’s journalistic garbage to estimate the value of a settlement based on the initial pie-in-the-sky numbers demanded by the kid’s QAnon lawyer. But I guess this is to be expected at this point.

After all, a lot of the media treads carefully on the subject of Sandmann now, who has approached martyrdom. And it’s weird because that video remains a good litmus test for our values. If the teens in that video didn’t creep you out, we don’t share values.

Sandmann’s whole lawsuit was some argument about whether Phillips was blocked, and all the while you still have a group of smug MAGA high schoolers doing heya-heya chants and tomahawk chops in a weird and deeply uncomfortable scene.

But the media doesn’t like to discuss the incident or Sandmann because they utterly capitulated to MAGA world grievances, and they don’t like to think about it.

Still, it’s disappointing none of the major outlets reached out to plaintiff’s lawyers for analysis. If you're that hard up, you could have asked me. I won’t charge you money to explain things.

The theme of this coverage should have been: “With his case hanging by a rapidly unraveling thread, the Covington kid decides to call it quits.” Instead, because media has been gutted, a huge portion of people think Sandmann is on his way to becoming a billionaire.

[The Reformed American Republic]

The suit may have been settled for peanuts but I do still think WaPo initially dropped the ball when they first reported it, regardless of what the law says.

[LimaUniformNovemberAlpha]

I don't know if he'll win, but right is on his side. Media needs proper regulation and they're getting away with too much shady practice.

Free speech comes with a social responsibility and if you abuse your position of influence and don't check facts there should be consequences. No amount of pearl clutching over press freedom negates that.

Let's not mince words. We're not talking about "social responsibility." Losing customers who came to disbelieve WaPo of their own accord would constitute "social responsibility." We're talking about the legal system imposing limitations on freedom of speech.

And hey, we all believe in limitations on freedom of speech, or we'd be for the right to falsely shout fire in a crowded theatre. But let's not pretend that isn't what it is.

[The Reformed American Republic]

I don't know if he'll win, but right is on his side. Media needs proper regulation and they're getting away with too much shady practice.

Free speech comes with a social responsibility and if you abuse your position of influence and don't check facts there should be consequences. No amount of pearl clutching over press freedom negates that.

Let's not mince words. We're not talking about "social responsibility." Losing customers who came to disbelieve WaPo of their own accord would constitute "social responsibility." We're talking about the legal system imposing limitations on freedom of speech.

And hey, we all believe in limitations on freedom of speech, or we'd be for the right to falsely shout fire in a crowded theatre. But let's not pretend that isn't what it is.

The fire in a crowded theater is a misquote btw. The case upheld someone's conviction for handing out anti-draft pamphlets. https://en.m.wikipedia.org/wiki/Schenck ... ted_States