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Ex-Navy SEAL author’s legal malpractice claim proceeds

June 7, 2018

A former Navy SEAL who claims he was forced to forfeit to the government more than $6 million in proceeds from his best-selling book about the capture of Osama bin Laden may proceed with a legal malpractice lawsuit against a Fort Wayne lawyer. The author of “No Easy Day” alleges bad legal advice about not needing to first clear the book with the Department of Defense caused the loss.

Matthew Bissonnette, who wrote the firsthand account published in 2012 under the name Mark Owen, claims former Carson Boxberger attorney Kevin Podlaski advised him before the book was published that it was unnecessary to clear the manuscript with the Pentagon for potentially classified information.

A magistrate judge on Tuesday partially denied Podlaski’s and the firm’s motion for summary judgment in Bissonnette v. Podlaski, et al., 1:15-cv-334, and denied their motion to exclude an expert witness for Bissonnette.

Bissonnette was featured in disguise on “60 Minutes” after the book’s release, where he described in detail the raid that led to bin Laden’s killing. But he later ran into trouble with the Pentagon. In a subsequent “60 Minutes” appearance, Bissonnette claimed he didn’t first clear the book with the DoD due to bad legal advice.

Bissonnette was cleared in criminal investigations into whether his disclosures in the book violated the Espionage Act, but in a civil case filed in 2016, the government alleged that Bissonnette violated a fiduciary duty and breached Navy SEAL nondisclosure agreements by failing to submit the book for prepublication review. Under a consent decree in the civil case, he agreed to forfeit all proceeds from the book, which totaled $6,664,882.21 at the time the consent decree was signed.

Magistrate Judge Susan Collins in the U.S. District Court for the Northern District of Indiana wrote in a 45-page order Tuesday that Bissonnette’s claims of legal malpractice as a proximate cause of his loss could proceed. She granted Podlaski and Carson Boxberger summary judgment on Bissonnette’s claim of breach of fiduciary duty.

“…(T)he parties have not furnished and the Court has not unearthed any case describing the appropriate analysis for determining whether an attorney’s advice not to submit a manuscript for prepublication review proximately caused damages in the form of royalties forfeited to the government,” Collins wrote.

“By retaining some amount of royalties, Bissonnette would be better off than if he had retained no royalties at all, which is what actually happened (Bissonnette forfeited all of the royalties to the DoD, and therefore netted zero dollars in total royalties),” the magistrate judge wrote. “… In this Opinion and Order, the Court assumes that if the Book would have been published following prepublication review, it would have generated some not insignificant amount of royalties to Bissonnette. Therefore, on summary judgment, Bissonnette must only provide evidence from which a reasonable factfinder could conclude that if Bissonnette had submitted a manuscript (for prepublication review), some version of the Book would have been published.

“… (T)he Court is persuaded that a reasonable factfinder could conclude — without engaging in undue speculation — that Podlaski proximately caused Bissonnette to forfeit royalties to the government. Defendants, by insisting that all the evidence of record is too speculative, are ‘throwing sand’ in the Court’s eyes to avert its attention,” Collins wrote. The order schedules a teleconference with the parties for June 14.

Podlaski is now with Beers Mallers Backs & Salin LLP in Fort Wayne.

 

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