No surprise here; West Publishing has filed a motion to set aside the jury’s $5,000,000 verdict in the case brought against them by the two law professors whom West defamed by selling books bearing the professors’ names, which contained out-of-date and erroneous statements of law. West claims that:
(1) There was no evidence to support the jury’s finding of actual malice;
(2) There was no evidence that anyone understood that the book in question was defamatory to the professors; and
(3) The damages were excessive.
To my knowledge, the story is only available on www.law.com, which requires a subscription (and it ain’t cheap). I have, however, attached a copy of West’s motion here in pdf format: West’s Memorandum of Law. West filed this motion with the trial court, which tolls the time during which West can file an appeal to the Third Circuit. (See Fed. R. App. P. 4(a)(4)(A)).
Obviously, I haven’t read the transcript of the trial proceedings, but even so, it’s difficult for me to believe that West will win. The reason being the legal standard that the trial court must apply to determine whether West’s arguments have any merit:
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:(A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1) (emphasis added).
Basically, this means that the trial court has to view all the evidence in a light most favorable to the other side (i.e. the professors), and can only set aside the jury’s verdict if that evidence is legally insufficient to support the verdict. It does happen, but it’s a very high standard nonetheless.
I’m not convinced, however, that the trial court won’t reduce the jury’s award, and I say this for a couple reasons: First, $5,000,000 is a hell of a lot of money—far more than these professors make in several years (if not their entire careers); and second, the amount is grossly disproportionate to the amount of money that West profited from the books in question.
If the court does reduce the award, it’s likely that both sides will appeal, but what often happens is that before the case would be decided by the appellate court, the parties agree to settle the case. This type of settlement often benefits both sides because the plaintiffs—who probably aren’t filthy rich, but by the looks of them, aren’t getting any younger, and can probably use the money before Brett Favre makes it into the hall of fame and then un-retires—get some compensation much sooner than they would if they wait for all the appeals to play out. And it benefits the defendant because they don’t have to spend even more money fighting the case, but at the same time, they get off without paying the professors the full amount owed.
The case of David Rudovsky & Leonard Sosnov v. West Publ’g, No. 2:09-cv-00727-JF is scheduled for a hearing on the motion(s) before U.S. District Judge John P. Fullam on February 10th (pdf of hearing notice).