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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

MATTHEW BISSONNETTE,

Plaintiff,

-againstKEVIN PODLASKI and 

CARSON BOXBERGER, LLP, 

Defendants.

Civil Action No.: 1:15-cv-00334

SECOND AMENDED

COMPLAINT

JURY TRIAL DEMANDED

 Plaintiff Matthew Bissonnette, through his attorneys, brings this Complaint 

against Kevin Podlaski and Carson Boxberger, LLP. Except as otherwise indicated, 

Bissonnette alleges upon information and belief as follows: 

Nature of the Action 

1. This legal malpractice case arises from Defendants’ representation of 

Bissonnette in connection with his best-selling book, No Easy Day: The Firsthand 

Account of the Mission That Killed Osama Bin Laden (2012) (the Book). 

Defendants’ representation of Bissonnette included: 

 The duty of advising Bissonnette on his contract with the 

publisher; and 

 The duty of ensuring Bissonnette’s compliance with his 

contract with the 

publisher and with his contractual and fiduciary obligations to 

the United States Government to preserve certain confidential, 

classified, or otherwise sensitive information he learned as a 

Navy SEAL. 

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2. The legal representation Defendants contracted to provide is not

unique. But it is specialized. Attorneys who routinely advise authors about 

confidentiality obligations to the Government and guide them through the 

prepublication review process establish the standard of care applicable to all 

attorneys who represent authors under similar circumstances. 

3. Among other acts of negligence, Defendants advised Bissonnette that

he could—and should—forego a prepublication review of the Book by the 

Department of Defense and other governmental agencies, and that Defendants 

could review the Book to remove all classified or otherwise sensitive information 

so that Bissonnette could publish the Book without civil or criminal liability. 

Bissonnette followed Defendants’ erroneous advice. As a direct and proximate 

result, he has suffered and will suffer significant damages and financial losses. 

4. Bissonnette will offer the testimony of an expert witness who

routinely represents authors with contractual and fiduciary confidentiality 

obligations to the Government. This expert witness is familiar with and has advised 

clients on their contractual and fiduciary obligations concerning classified and 

otherwise sensitive information, and the prepublication review requirements that 

must be considered when writing a book. This expert witness will testify that 

Defendants breached the standard of care to which attorneys under these 

EXHIBIT A

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circumstances are held, and this breach proximately caused the damages claimed 

by Bissonnette in this lawsuit. 

Parties 

5. Bissonnette Matthew Bissonnette is a citizen of Texas. He is not now

and never has been a citizen of Indiana. He published No Easy Day under the 

pseudonym Mark Owen.

6. Defendant Kevin Podlaski is a lawyer formerly with the law firm of

Carson Boxberger, LLP and currently with the firm of Beers Mallers Backs & 

Salin. He is licensed to practice law in Indiana and New Jersey. He is a citizen of 

Indiana. 

7. Defendant Carson Boxberger, LLP is a limited liability partnership

practicing law in Indiana. It has two offices: one satellite office in Bloomington 

Indiana and its principal office in Fort Wayne Indiana. It has no offices outside the 

State of Indiana. The following are all partners of Defendant Boxberger, and all of 

them are citizens of Indiana (except James Federoff and Howard Sander, both of 

whom are citizens of Florida): 

 Larry L. Barnard

 Andrew D. Boxberger

 Bruce O. Boxberger

 Jon A. Bragalone

 Jeremy M. Dilts

 James A. Federoff

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 Scott M. Federoff

 Angela G. Garcia

 J. Blake Hike

 Douglas A. Hoffman

 Jason M. Kuchmay

 Edward J. Liptak

 Grant A. Liston

 Cal S. Miller

 Robert L. Nicholson

 Timothy M. Pape

 Richard P. Samek

 Howard B. Sander

 Jeremy V. Senk

 Karl J. Veracco

 Jacque R Wilson

None of the partners are a citizen of the State of Texas and, therefore, Carson 

Boxberger is not a citizen of the State of Texas. 

8. Defendant Podlaski was at all times relevant to this dispute an

attorney practicing law with Carson Boxberger. All acts of Podlaski in the 

representation of Bissonnette are alleged to be the acts of Carson Boxberger. 

Jurisdiction and Venue 

9. This Court has subject matter jurisdiction over this proceeding under

28 U.S.C. § 1332 because there is complete diversity of citizenship between the 

parties and the amount in controversy, exclusive of costs and interest, exceeds 

$75,000. 

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10. Venue is proper in this district under 28 U.S.C. § 1391(2) because a 

substantial part of the events and omissions that give rise to the claims asserted 

occurred within the territorial limits of the Northern District of Indiana. 

Factual Background 

11. Bissonnette is a decorated, retired Navy SEAL who served 13

consecutive combat deployments alongside his fellow SEALs in the service of our 

country. During Bissonnette’s military service, he participated in the mission 

resulting in the rescue of Captain Richard Phillips from Somali pirates in 2009, and 

the mission resulting in the death of Osama Bin Laden in 2011. Both missions 

became the subject of successful books and films that made millions of dollars (for 

someone) by telling the stories (not always accurately) of highly skilled SEALs. 

But these books and movies failed to tell the stories from the perspective of the 

SEALs who bravely carried out the missions, and no profits from the books and 

movies were directed toward the families of fallen SEALs. 

12. After observing that these missions—particularly the Bin Laden 

mission—were being written about and discussed inaccurately by people who did 

not know the facts and, even worse, were exploiting them to advance personal and 

financial agendas rather than to highlight the skill and sacrifice of the SEALs, 

Bissonnette decided to write his own book. No Easy Day tells the story of these 

missions from the perspective of the Navy SEALs. 

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13. Bissonnette did not seek personal recognition; he used a pseudonym 

to remain anonymous while describing the valor of his fellow SEALs. But his 

identity now has become public. Bissonnette announced in the Book that he would 

donate a major portion of its sale proceeds to designated charitable organizations 

devoted to caring for the families of fallen SEALs. Bissonnette encouraged his 

readers to donate as well. Many did. 

14. Bissonnette retained Elyse Cheney as his literary agent. Bissonnette, 

Cheney, and his publisher, Dutton, a division of Penguin Group (USA) Inc. knew 

that Bissonnette had acquired sensitive information during his naval career, and 

that he had a personal commitment and contractual obligations not to disclose that 

information. Bissonnette knew that if the Book inadvertently disclosed sensitive 

information: 

 it could put SEALs in harm’s way; 

 it could be used by America’s enemies to place the nation and its 

soldiers at risk; 

 it could result in the Government pursuing Bissonnette for civil 

liabilities and criminal penalties; and 

 it could result in Bissonnette being sued by Dutton for breach of 

contract. 

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15. To insure Bissonnette satisfied his obligations of confidentiality,

Cheney (acting for Bissonnette) began searching for legal representation. Cheney 

learned that Podlaski had worked with another military author and had special 

expertise in dealing with military confidentiality, military law, and special 

operations issues. 

16. Podlaski claimed to possess a high level of security clearance, said he

had vetted other books for retired military personnel, and said he could advise 

Bissonnette on legal issues relating to the Book—including compliance with 

confidentiality obligations. 

17. A copy of Defendants’ engagement letter is attached as Exhibit 1.

Under the engagement letter, Defendants’ first task was to provide legal 

representation and advice with respect to: 

Contracting with Dutton, ... for the publication of your 

manuscript about your career as a member of the U.S. Navy 

SEALS, . . . . 

Defendants reviewed the Dutton contract and suggested revisions for Bissonnette’s 

benefit, including a proposed modification concerning Bissonnette’s rights to tell 

the story and his obligations under agreements with the U.S. government. Podlaski 

proposed adding himself into the Dutton contract by suggesting that the following 

language be added: 

Recognizing that the legal right to publish the Author’s 

manuscript and timely delivery of the manuscript by the 

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Author to the Publisher are essential terms of this 

Agreement . . . the parties agree to obtain a review of the 

manuscript by Kevin P. Podlaski, Esq., an Attorney who 

possesses the proper military background, experience, 

education, and training . . . . 

18. The Dutton contract required Bissonnette to insure that his manuscript 

contained no classified or otherwise sensitive information that might compromise 

the defense of the United States. Because Defendants advised Bissonnette that he 

had no obligation to submit his manuscript to the Government for prepublication 

review, Defendants failed to include key provisions in the Dutton contract that 

would have protected Bissonnette concerning the prepublication review process. 

These missing provisions would have been acceptable to Dutton and would have 

protected Bissonnette in the event of a prepublication review. 

19. Once Defendants concluded their assistance with the Dutton contract 

and it had been signed, the engagement letter next obligated Defendants to: 

Review the publishable manuscript of [Bissonnette’s] 

career to ensure [his] compliance with [his] obligations 

under any agreements [he] may have signed with the U.S. 

Government not to release classified or classifiable 

information or otherwise compromise the national 

security interests of the United States, as those terms are 

used, intended or understood in Standard Form 312, 

Confidential Information Non-Disclosure Agreement 

(CINA”), or any other such agreements. 

20. In his “Author’s Note,” Bissonnette explained his efforts to comply 

with his confidentiality obligations and his hiring of Defendants: 

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Although I am writing this book in an effort to accurately 

describe real-world events as they occurred, it is important 

to me that no classified information is released. With the 

assistance of my publisher, I hired a former Special 

Operations attorney to review the manuscript to ensure 

that it was free from mention of forbidden topics and 

that it cannot be used by sophisticated enemies as a source 

of sensitive information to compromise or harm the United 

States. I am confident that the team that has worked with 

me on this book has both maintained and promoted the 

security interests of the United States. (Emphasis added.)1

21. Defendant Podlaski is the attorney referred to in this Author’s Note. In 

fact, Podlaski personally drafted a version of this portion of the Author’s Note, 

touting his own expertise and his role in the publication of the Book. 

22. Defendants knew or should have known that Bissonnette signed 

numerous secrecy agreements as a SEAL. Defendants knew or should have known 

that some or all of these agreements required Bissonnette to submit the Book to the 

Government for prepublication review. Defendants did not ask and did not know 

when Bissonnette officially left the Navy, and did not ask and did not know that 

Bissonnette was on terminal leave when some of the Book preparations were 

performed. These facts were relevant to determining Bissonnette’s obligations to 

the United States. 

 

1 The “assistance” was primarily advancing funds to pay the legal fees related to such review.

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23. Defendants gave Bissonnette unqualified legal advice that he had no 

obligation to submit the Book to any other agency for prepublication review. 

Defendants in fact affirmatively advised Bissonnette not to submit the Book for 

prepublication review. 

24. Defendants further represented that, through their review of the

manuscript, Bissonnette could satisfy his obligation not to disclose sensitive 

material. Podlaski stated that he had the knowledge, skill, and security clearance 

necessary to review the manuscript and screen it for classified or otherwise 

sensitive information. 

25. Defendants failed to appreciate or explain the difference between (1) 

having a security clearance that could allow an individual to be determined by an 

agency of the U.S. Government to have a “need to know” classified or otherwise 

sensitive information and view a document, and (2) having actually received 

permission to view a potentially classified or otherwise sensitive document. 

Whatever security clearance Podlaski held, he had no permission from the requisite 

United States agencies to read the manuscript and thereby learn the classified or 

otherwise sensitive information within the Book. Podlaski likewise had no legal 

right to substitute his judgment for that of agencies of the United States as to what 

classified or otherwise sensitive information the Book might contain. 

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26. Podlaski reviewed the manuscript, making nominal edits, adding a

proposed forward (that touted his own role in the Book), and including citations to 

the public record. Upon completion of his review and editing, Podlaski forwarded 

a copy of the revised manuscript to Cheney with his assurance that, with his 

suggested changes, the manuscript would contain no classified or otherwise 

sensitive information, would not breach Bissonnette’s personal, contractual, or 

fiduciary obligations, and would not result in civil or criminal exposure. Podlaski 

repeated this same advice through the middle of 2013. 

27. At no time did Defendants inform Bissonnette adequately of the risks

and probable consequences if they were wrong about Bissonnette’s obligation to 

submit the Book to a prepublication review. At no time did Defendants adequately 

inform Bissonnette of the risks and probable consequences if Defendants were 

wrong about having cleansed the Book of classified or otherwise sensitive 

information. Not only did Defendants fail to inform Bissonnette adequately so he 

could make an informed decision about submitting the Book to prepublication 

review, Defendants actually downplayed the risk and consequences of following 

their strategy and advice— affirmatively recommending that Bissonnette forego a 

prepublication review and instead rely on them to review and cleanse the Book of 

classified information. 

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28. As a result of Defendants’ failure to inform Bissonnette adequately,

and Defendants’ absolute and unqualified advice, Bissonnette never made an 

informed decision on these matters. Bissonnette relied upon the faulty advice of 

Defendants and did not submit the Book for a prepublication review, relying 

instead on Defendants to remove anything that might be in violation of his secrecy 

obligations. Bissonnette would not have relied on Defendants’ advice had they not 

assured him that he could do so without risk. He would not have relied on 

Defendants’ advice if they had qualified it or adequately informed Bissonnette of 

the risks he was assuming by following it. 

29. In the days and weeks leading up to the publication of No Easy Day,

publicity surrounding the Book began to build. One business day before the 

scheduled release, Jeh Johnson, Department of Defense General Counsel, wrote 

Bissonnette—using his pseudonym, Mark Owen—in care of Dutton to say that the 

Book violated Bissonnette’s obligations because he had not submitted the Book for 

a prepublication review and because it contained sensitive information. 

30. Cheney forward Johnson’s letter to Podlaski, who dismissed it as an

attempt at intimidation and said: “We should not worry.” Podlaski even suggested 

that everyone embrace the accusations against Bissonnette because it would result 

in greater book sales. 

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31. At the time of the Jeh Johnson letter, tens of thousands of copies of 

the Book had already been printed—with Podlaski’s edits—and distributed across 

the country in anticipation of the release date, at a cost of millions of dollars. 

Bissonnette had no power to stop the distribution at this late date. Had release of 

the Book been abandoned at this late date, Bissonnette would have been in material 

breach of his contract with Dutton and subject to suit by Dutton. Bissonnette had 

no choice at this late date but to hope Podlaski was right. 

32. Following the Book’s publication, and as a direct and proximate cause 

of the acts of Defendants previously described, the Government claimed that 

Bissonnette violated his obligations to submit his manuscript for a classification 

prepublication review and preserve certain information as confidential. The 

Department of Defense threatened a civil lawsuit seeking forfeiture of all income 

from the Book. The Department of Justice began an investigation to determine 

whether Bissonnette violated any criminal laws by publishing the Book. 

33. Because Bissonnette did not receive proper legal advice from 

Defendants, he had to retain new counsel to represent him on the Government’s 

threats of civil and criminal liability. Defendants encouraged Bissonnette’s new 

counsel to continue to insist upon and defend their faulty advice; in assessing the 

Department of Defense’s position that prepublication was required, Podlaski 

wrote: “It’s bullshit.” By continuing to advance their untenable position, 

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Defendants delayed a resolution of these threats and increased the cost of 

resolution. 

34. Defendants’ continued to represent Bissonnette, making certain

Freedom of Information Act requests on his behalf on November 13, 2012, and 

emailing about the status of these requests as late as May 9, 2013. Defendants 

never formally terminated their attorney-client relationship with Bissonnette. 

35. Bissonnette’s new counsel recognized that by relying upon the advice

of Podlaski, Bissonnette unintentionally breached his contractual obligations to the 

country for which he repeatedly risked his life. Bissonnette admitted his error and 

entered into negotiations with the Department of Defense to resolve the threatened 

civil forfeiture lawsuit. Bissonnette anticipates the forfeiture claim will be resolved 

by settlement before the trial of this case. That settlement will require him to forfeit 

all income he has received or will receive from the Book. This loss exceeds the 

minimum jurisdictional limits of this court. 

36. Bissonnette’s new counsel told the Department of Justice that he was

innocent of wrongdoing and had reasonably relied upon the advice of his attorney. 

Bissonnette waived his attorney-client privilege with Defendants and promised to 

produce his entire file with Podlaski to show that Podlaski advised him not to 

submit the manuscript for prepublication review. Bissonnette sent Defendants a 

request for his entire file. In violation of their ethical and fiduciary obligations, 

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however, Defendants refused to produce the file for months, making it impossible 

for Bissonnette to produce the file to the Government and, in the process, further 

damaging Bissonnette’s relationship with the Government representatives 

investigating the matter. 

37. After repeated requests and months of delay, Defendants finally

forwarded Bissonnette some—though still not all—of his file. Bissonnette again 

demanded his entire file. After even more delay, Defendants sent a second 

production of documents and then represented they had produced Bissonnette’s

entire file. Bissonnette produced the file to the Government, conveying 

Defendants’ representation that this was his entire file. It wasn’t.

38. Bissonnette asked Podlaski to meet with the Department of Justice

and answer all their questions. At this meeting, Podlaski produced to Government 

representatives additional documents never produced to Bissonnette, even though 

these documents are clearly a part of Bissonnette’s file. This further damaged 

Bissonnette’s relationship with Government officials. Defendants still have not 

produced to Bissonnette his entire file. 

First Cause of Action 

Professional Negligence/Malpractice 

39. As previously alleged, Bissonnette had an attorney-client relationship

with the Defendants. As a result, Defendants owed Bissonnette the duty act on his 

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behalf as a reasonable and prudent attorney would act under the same or similar 

circumstances. 

40. Defendants held themselves out as experts in connection with

Bissonnette’s secrecy, non-disclosure agreements, and book publication 

obligations. They committed to him that their representation would be not just at 

the level of a reasonably prudent attorney but instead would be up to the highest 

legal and ethical standards. In doing so, Defendants voluntarily assumed (and then 

breached) an even higher standard of care. 

41. The above-described acts of Defendants constitute a breach of the

standard of care they owed to Bissonnette. In addition, these acts constitute a 

breach of the higher standard of care Defendants voluntarily assumed when they 

committed in the engagement letter that their representation of Bissonnette would 

be “to the highest legal and ethical standards.”

42. By their negligence, Defendants committed Bissonnette to a conflict

with the U.S. Government that he could not win. As a direct and proximate result 

of Defendant’s negligence, Bissonnette suffered the losses described in this 

Complaint. 

43. It has become necessary for Bissonnette to retain the undersigned

counsel to prosecute these claims on his behalf and Bissonnette seeks an award of 

reasonable attorney’s fees, if and as allowed by law. 

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Second Cause of Action 

Breach of Fiduciary Duty 

44. Defendants’ actions breached the fiduciary duty they owed to

Bissonnette as their client and their former client. The actions constituting this 

breach of fiduciary duty include the following: 

 continuing to insist upon the correctness of their flawed advice to

protect themselves at Bissonnette’s expense;

 delaying the production of Bissonnette’s file to protect themselves

at the expense of Bissonnette, their former client;

 refusing to produce to Bissonnette his entire file;

 producing documents to the Department of Justice which have

never been produced to Bissonnette, to protect themselves at his

expense; and

 generally engaging in a cover-up of their negligence in an effort to

protect themselves at Bissonnette’s expense.

45. By these breaches of their fiduciary duty, Defendants unnecessarily

complicated and delayed the resolution of the conflicts created by their flawed 

legal advice, thereby unnecessarily adding to Bissonnette’s costs and attorney’s 

fees in resolving these matters and the damages incurred as a result of these 

conflicts. 

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Damages 

A. Government Settlement

46. Had Bissonnette received the proper legal advice concerning his

contract with Dutton, his obligation to submit the Book to a prepublication review, 

and the risks of not submitting the Book for such review, he would have tendered 

the manuscript for Government review and been able to keep all the income from 

the Book. If the review process resulted in a request to remove some information, 

Bissonnette would have removed the information as requested and then published 

the Book free from any risk of civil or criminal liability. This review process 

would not have materially altered the Book or affected its marketability. This 

classification prepublication review process does not prevent an author from 

publishing and marketing a book, as evidenced by the publication of other books 

that have undergone a prepublication review, including but not limited to the 

following: 

 Bissonnette’s second book, No Hero;

 Chris Kyle’s book, American Sniper; and

 Marcus Latrell’s book, Lone Survivor: The Eyewitness Account of

Operation Redwing and the Lost Heroes of SEAL Team 10.

43. Bissonnette has recognized that by relying upon the advice of Podlaski, he

unintentionally breached his contractual/fiduciary obligations to the country for 

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which he repeatedly risked his life. Bissonnette has admitted his error and entered 

into negotiations with the Department of Defense to resolve the threatened civil 

forfeiture lawsuit. Bissonnette anticipates that the Government’s forfeiture claim 

will be resolved by a settlement before the trial of this case that will require him to 

forfeit all past and future income from the Book. If Defendants had advised 

Bissonnette properly, he would not have been required to forfeit his income from 

the Book. Bissonnette’s losses exceed the minimum jurisdictional limits of this 

Court. 

B. Attorney’s Fees

47. All attorneys’ fees incurred during this cleanup process are damages

proximately caused by the previously described acts of Defendants. 

48. Bissonnette was forced to retain new counsel to represent him on the

Government’s threat of civil and criminal liability against him. Bissonnette has 

paid a significant amount of money for the services of his new counsel and their 

services and fees are continuing at this time. Bissonnette’s obligation to pay 

attorney’s fees will continue into the future until the mess created by Defendants’ 

negligence has been cleaned up and the threats of civil and criminal lawsuits 

concluded. 

49. Defendants insisted that Bissonnette’s new counsel defend their

advice of no obligation to submit for a prepublication review and that the Book 

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contained no confidential, classified, or otherwise sensitive information. New 

counsel initially did that, until such time as new counsel could conduct their own 

research and reach their own conclusions. As a result of this continuation of their 

prior negligent advice, Defendants delayed a resolution of these threats and 

increased the cost of resolving the disputes. 

C. Damage to Reputation, Loss of Income

50. As a direct and proximate cause of Defendants’ faulty legal advice,

Bissonnette’s reputation and his exemplary military record have been tarnished by 

false accusations and Bissonnette will lose his security clearance. Bissonnette has 

lost a significant amount of income he otherwise would have received following 

his retirement from the military by way of consulting jobs, speaking engagements, 

and future employment. This loss of income will continue into the future for years 

and exceeds the minimum jurisdictional limits of this court. 

51. All these elements of Bissonnette’s damage were proximately caused

by the negligent acts of Defendants. All Bissonnette’s damages were foreseeable 

from the negligent acts of Defendants described herein. But for the negligence of 

Defendants described herein, Bissonnette would not have suffered these injuries 

loss and financial losses. 

Affirmative Pleadings Responsive to Defenses 

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52. In connection with any limitations defense, Bissonnette affirmatively

pleads and relies upon the discovery rule. Bissonnette did not discover, and could 

not in the exercise of ordinary diligence have discovered, Defendant’s negligence

until several months after retaining new counsel. See Silvers v. Brodeur, 682 

N.E.2d 811, 813 (Ind. Ct. App. 1997). 

53. In connection with any limitations defense, Bissonnette affirmatively

pleads and relies upon Indiana’s “Journey’s Account Statute.” IND. CODE § 34-11-

8-1. Bissonnette filed suit against Defendants in the United States District Court

for the Southern District of New York on November 5, 2014. That suit was 

dismissed for lack of personal jurisdiction on October 9, 2015. This statute revives 

actions where a case is dismissed for lack of jurisdiction. Eads v. Community 

Hospital, 932 N.E.2d 1239 (Ind. 2010). Indiana courts have applied the statute 

specifically to a federal lawsuit dismissed on jurisdictional grounds. Eves v. Ford 

Motor Co., 281 N.E.2d 826 (Ind. 1972). Under the statute, limitations on this 

lawsuit does not run until October 9, 2018. 

54. In connection with any limitations defense, Bissonnette affirmatively

pleads and relies upon Indiana’s common law tolling rule, which tolls limitations 

of state claims during pendency of a federal action between the same parties. 

Torres v. Parkview Foods, 468 N.E.2d 580 (Ind. Ct. App. 1984). Thus limitations 

was tolled from November 5, 2014 to October 9, 2015. 

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22

55. In connection with any limitations defense, Bissonnette affirmatively

pleads and relies upon the tolling agreement executed between the parties, tolling 

limitations on the claims asserted herein. This agreement tolled limitations from 

August 26, 2014 through November 30, 2014. 

56. In connection with any limitations defense, Bissonnette affirmatively

pleads and relies upon Indiana’s continuous representation rule, extending the 

accrual of a cause of action for legal malpractice to the conclusion of the attorney’s 

representation. See Biomet, Inc. v. Barne & Thornburg, 791 N.E.2d 760, 765 (Ind. 

Ct. App. 2003), trans. denied. Defendants continued to represent Bissonnette until 

at least May 9, 2013, but certainly to a point within two years of the filing of 

Bissonnette’s lawsuit in the Southern District of New York (and believed to be less 

than two years from the filing of this lawsuit). 

57. Bissonnette pleads legal and equitable estoppel to bar Defendants’

claim that Bissonnette cannot meet his burden of proof on proximate cause and 

damages because Bissonnette must but cannot—without breaching his obligations 

to the Government—reveal the specific confidential, classified, or otherwise 

sensitive information Defendants wrongfully left in his Book, in violation of their 

duty to ensure that the Book satisfied Bissonnette’s obligations to the Government. 

By this defense, Defendants essentially plead their own negligence as a defense to 

their negligence. 

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23

58. Bissonnette pleads an exception to the “but for” component of

proximate cause and damages because Bissonnette cannot—without breaching his 

obligations to the Government—reveal the specific acts of negligence of 

Defendants in connection with the confidential, classified, or otherwise sensitive 

information Defendants wrongfully left in his Book, in violation of their duty to 

ensure that the Book satisfied Bissonnette’s obligations to the U.S. Government. 

Defendants essentially plead and rely on their own negligence as a defense to their 

negligence. 

Prayer for Relief 

Based on the allegations in this Complaint, Bissonnette prays for the 

following relief: 

 Compensatory damages in an amount to be proven at trial;

 Forfeiture of all fees, income and other benefit Defendants

received as a remedy for their breach of their fiduciary duty; and

 Such other and further relief as this Court deems just and proper,

together with all costs and expenses and fees as allowed by law,

pre and post judgment interest at the maximum rates allowed by

law, and disbursements relating to this proceeding and such other

relief, legal and equitable, as Bissonnette may show himself to be

justly entitled.

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Demand for Trial by Jury 

59. Bissonnette demands a trial by jury for all issues so triable as a matter

of right. 

Dated: December 2, 2015 

Dallas, Texas 

Johnston Tobey Baruch, P.C.

By: /s/ Randy Johnston

Coyt Randal Johnston 

3308 Oak Grove Avenue

Dallas, Texas 75204

Telephone: (214) 741-6260

Facsimile: (214) 741-6248

randy@jtlaw.com

And

James Groves

Lee Groves & Zalas

205 West Jefferson Boulevard, Suite 

502

South Bend, IN 46601

Telephone: (574) 232-5923

Facsimile: (574) 232-5942

Jimfgroves@aol.com

Attorneys for Plaintiff

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Certificate of Service 

On this 2nd day of December 2015, a copy of the foregoing was served on 

counsel of record through the e-filing system. 

/s/ Randy Johnston____________ 

Coyt Randal Johnston 

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KP00001

Carson 

Boxberger 

Attorneys 

1400 ONE SUMMIT SQUARE 

FORT WAYNE, IN 46802 

CARSONBOXBERGER.COM 

ATTORNEY-CLIENT 

PRIVILEGED MATERIAL 

Sent Via Email 

MA-Ir Bt~SDI\)N£Tft:r 

(Printed Name of Client) 

c/o Elyse Cheney 

Elyse Cheney Literary Associates, LLC 

78 Fifth A venue, Third Floor 

New York, NY 10011 

Re: Engagement/Representation Letter 

Dear Sir: 

Kevin P. Podlaski, Esq. 

podlaski@carsonboxberger .com 

January 17,2012 

We are pleased that you have selected our firm to provide legal services to you. You 

asked me to assist you with the legal issues you may encounter in: 

• Contracting with Dutton, a division of Penguin Group (USA) Inc., 375 Hudson 

Street, New York, New York 10014 ("Publisher"), for the publication of your 

manuscript about your career as a member of the U.S. Navy SEALS; and 

• Reviewing the publishable manuscript of your career to ensure your compliance 

with your obligations under any agreements you may have signed with the U.S. 

Government not to release classified or classifiable information or otherwise 

compromise the national security interests of the United States, as those terms are 

used, intended or understood in Standard Form 312, Confidential Information 

Non-Disclosure Agreement (CINA"), or any other such agreements. 

The following confmns and details our agreement and describes the scope of my 

representation, the fees and expenses, and the conclusion of our representation. This is the 

contract between you and my law firm for the payment of legal fees you will incur for my legal 

28

EXHIBIT 1

USDC IN/ND case 1:15-cv-00334-RL-SLC document 12 filed 12/02/15 page 28 of 32 USDC IN/ND case 1:15-cv-00334-SLC document 14 filed 12/02/15 page 26 of 30
KP00002

January 17, 2012 

Page2 

representation of you. Please thoroughly review it, and if you are in agreement with the terms, 

sign it and return the original to me via the FED EX. If there is anything you disagree with or 

don't understand, please let me know before you sign it 

Scope of Representation. As discussed, I am the attorney in charge of these legal matters 

and I will be responsible for the day-to-day management of your interests as defined ~hove. By 

signing below; you are specifically acknowledging that no promises have been made by me as to 

what result we can or will achieve for you. My acceptance of thi!l engagement does not involve 

an undertaking to represent you or your interests in any other matter. We both recognize that 

you have not asked me for legal advice or consultation beyond t4e specific requests that I 

represent you in the matters stated above. I will, of course, be happy to discuss and provide such 

additional legal services you may request from time to time and I will provide you with written 

confirmation of any such additional engagements for which you retain me. 

Communication: Copies of Documents. I will try to keep you informed at all times as to 

the status of all matters I am handling for you and the course of action begin followed or 

recommended by me. If, however, you are unsure as to the status of any matter, it is also your 

responsibility to contact me and inquire. At your request, I will send you copies of any written 

materials sent or received by me pertajning to your matters, at your expense. Because you have 

e-mail, I will send certain correspondence an,d documents to you via e-mail rather tban through 

the U.S. Post Office. As you know, this is a quicker and more efficient way of communicating. 

Of course, copies of any documents not generated in this office, along with correspondence from 

any Court or opposin,g counsel, will be sent to you via regular mail. 

Fees and Expenses. I will bill you monthly for the legal services we provide to you. 

Unless you direct otherwise, 1 will send the monthly billing!invoi~es to you, care of Elyse 

Cheney, at Elise Cheney Literary Associates, LLC, at this address: 78 Fifth Avenue, Third Floor, 

New York, NY 10011. 

Our charges for professional services are based on the type of work and the amount of 

time required for the work. We bill for our services in 111 om an hatrr increm~nts. The fees are 

based on time actually spent in your representation (including court waiting time and travel, if 

applicable) according to our standard hourly rate. The fees that I charge are billed at the hourly 

rate in effect during the month services are performed. My current hourly rate is $300.00. 

You may pay your bill/invoice using a Master Card or Visa cr~dit card. If you choose 

this method of payment, please include your name as it appears on the card, the account/card 

number, expiration date, and three or four digit security code from the back of the card. No 

amounts will be charged until you authorize the amount. Accordingly, miscellaneous expenses, 

if any, are to be billed directly to you unless you authorize miscellaneous bills to be charged to 

the card after receiving our miscelll;meous billing statement. Y au may instead, make 

arrangements with our Billing Department Manager, Connie Schnelker, for paying these fees. 

I will be primarily responsible for these matters. However, some aspects of these 

matters may be referred to other attorneys in this office when appropriate and irt the interest of 

29

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KP00003

January 17, 2012 

Page 3 

effectiveness and efficiency. The hourly rate for other Partners is $250, and Associates is $200 

an hour. Also, some of our professional staff may assist me with your matters. Our paralegal 

current hourly rate is $150. It is obviously to your economic advantage to have these 

professionals assist me whenever prudent. Nonetheless, prior to being submitted to you all work 

is reviewed by me as your attorney. 

Our monthly invoices will include separate charges for disbursements made and internal 

charges incurred oq your behalf. These may include such items as travel expenses, postage and 

delivery service fees, charges for long distance telephone calls and faxes, and duplicating 

charges associated with our representation of you in this matter. We will bill you at cost for 

charges paid to third parties, and charges for internal services will be billed at our usual and 

customary rates for such services. You will receive monthly statements showing the status of 

your account. Payment of any balance due is expected within 15 days of the billing date. In the 

event this account has a balance due for a period in excess of 30 days, interest will be charged on 

that amount. 

One reason for monthly billing is to give you an opportunity to bring any problems to my 

attention. You shou.J,d carefully and immediately review your bills upon receipt. Bring any 

objections you might have to my attention within 15 days of the date of the statement. 

Otherwise, aU objections to the charges will be deemed waived. If, for some reason, you do not 

pay our invoices in a timely manner, we may be forced to withdraw our representation. In 

addition to the fees, expenses and any ipterest that may be imposed on past-due accounts, you 

will also be responsible for costs and expenses (including legal fees) of collection. Further, we 

reserve the right to assert a retaining lien over all documents or property in our possession, as 

contemplated and allowed under the Rules of Professional Responsibility for Attorneys, Rule 

1.16d and the common law. If it is necessary for us to institute a legal action to collect our fees 

and expenses from you, then by signing below you also agree and consent to jurisdiction of the 

matter in the Allen County~ Indi~a court system, under Indiana law. 

From time to time, it may be necessary to incur certain expenses on your behalf. 

However, I will not incur any expenses in excess of $500.00 without your consent. Fees 

generally are not paid by us, but are instead, directly billed to you unless other arrangements are 

made by and agreed to between us. 

Client Responsibilities. You agree to pay us for the p~rformance of the legal services 

described above, in accordance with the terms of this letter agreement. You also agree to 

cooperate fully with us and to provide us with all information known by or available to you that 

may be relevant to your matters or that may aid us in representing you in these matters. 

Conflicts. We agree not to accept, without prior approval from you, any engagement 

known by us to be in direct conflict with your interests in matters we are handling for you. We 

may represent new and existing clients in any matter that is not substantially related to your work 

for you even if the interest of such clients may be adverse to you but we will not knowingly give 

any other client the benefit of non-public information we received from you to your detriment. 

We begin our work for you relying on the fact that neither of you nor we know of any conflicting 

30

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KP00004

January 17, 2012 

Page4 

interests, or any likely future conflicting interests, among your management or owners, or 

between your company and any other client of our firm. 

Conclusion of Representation. Either you or I mi:!-Y terminate the engagement at any time 

for any n;ason by written notice. My termination of work for you must be in strict accordance 

with my professional obligations to you tinder the Rules of Professional Responsibilities for 

Attorneys. Unless previously terminated, my representation of you will terminate upon 

completion of the services for the matters described above. And, unless you engage us after 

termination of these matters, we will havy no continuing obligation to advise you with respect to 

future legal developments, such as changes in the applicable laws or regulations which could 

have an impact on your future rights and liabilities. 

Confidentially. Our relationship with you is confidential, and we will keep confidential 

all sensitive, proprietary, or otherwise confidential information relating to you and your matters. 

Following the conclusion of our representation, we will keep confidential any non-public 

information you have supplied to us which we will retain ·in accordance with Rules of 

Professional Responsibility for Attorneys. At your request, We will return your papers and 

property to you promptly upon receipt of payment for outstanding fees and costs. The firm will 

retain its own files pertaining to the matter in accordance with the firm's records retention 

program. For various reasons, including the minimization of unnecessary storage expenses, we 

reserve the right to destroy or otherwise dispose of any such documents or other materials after a 

reasonable time following the tennination of the engagem~nt 

Press Releases and Publicity. After your case is concluded, we may publish on our frrm;s 

website or in promotional materials, our representation of you. Of course, we will not disclose 

your identity or name. And our release of information will be in strict compliance with the Rules 

of Professional Responsibility for Attorneys. By signing below you authorize Carson Boxberger 

LLP to list the general nature of this representation in our various promotional materials. 

Outcome of Representation. Although I cannot guarantee a certain outcome, I am 

confident that my experience and tenacity will afford you a satisfactory conclusion of these 

- matters as I use my reasonable best efforts in representing you. Above all, I will make every 

effort to handle your case efficiently and according to the highest l~gal and ethical standards. 

If you do not understand any aspect of this Agreement, please discuss it with me so yo\1 

have a full understanding. Your acknowledgment of all ofthe terms ofthis contract induces me 

to accept your case and act as your lawyer. I do not anticipate disputes concerning legal fees, as 

I have rarely had them. We must have a true meeting of the minds, and by achieving that, we 

will have a professional relationship of the highest quality. 

If the foregoing reflects your understanding of our agreement and representation, please 

sign this Agreement and return it to me via FED EX at the address indicated above. I encourage 

you to keep a personal file of all documents from me. I will send you a copy of any document 

filed with the court or forwarded to opposing counsel or any other third party hired in this case, 

;-

f 

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KP00005

January 17, 2012 

Page 5 

I look forward to representing you and will keep you informed of all progress in this 

matt~r. It is my pr~ctice to attempt to return every telephone call made to me during a given day. 

However, sometimes that is impossible, as I may be in trial or involved in other matters. If you 

call and I am not available, you may leave a message or discuss your question with my legal 

assistant. Once again, I am pleased to have this opportunity to represent an<;l assist you. 

Sincerely, 

CARSON BOXBERGER LLP 

Kevin P. Podlaski 

KPP/kjw 

Acknowledged and Agreed to by: 

Dated: _ ___,I /'---l cB__,/ '-';;..o:;.___....:..l_2-_ 

MATI~ blbGo~T~ I 

(Printed Name of Client) (Social Security Number) 

F:\K\KPP\Military\Penguln Publlshers\!:ngagement Jtr.doc 

-

r 

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