Devin Nunes' Favorite Lawyer On The Hook For Over $20k In Sanctions

from the pay-up-biss dept

Last month we wrote that Rep. Devin Nunes' favorite lawyer, Steven Biss, who has been filing frivolous, vexatious SLAPP suit after frivolous, vexatious SLAPP suit, was finally facing some sanctions. The specific case did not directly involve Nunes, but rather one of his aides, Derek Harvey, who had filed a ridiculous SLAPP suit against CNN. As we wrote last month, the court had easily tossed the original lawsuit and warned Biss not to file an amended complaint unless he had a credible legal theory. Biss did not have a credible legal theory, but he still filed an amended complaint. And thus, the court issued sanctions, saying that Harvey, Biss and other lawyers would be on the hook for CNN's legal fees.

The latest filing in the case is the bill coming due. Harvey and Biss need to pay CNN $21,437.50 in legal fees (and an additional $52.26 in costs and expenses). That might not seem like that much in the grand scheme of things (especially for a lawyer who has claimed his client, Devin Nunes, is owed over a billion dollars for defamation, but it is still real money that someone is going to need to pay -- though it remains an open question as to who is actually going to pay it).

There's not much to see in the ruling itself, as it basically says that the fees CNN's lawyers outlined are within the standards that the court's local rules say are "presumptively reasonable." The lawyers admit that they're actually asking for less than they normally charge in order to keep them "reasonable" in the Court's eyes, and the Court basically says "sounds good."

It does often seem that lawyers who file tons of frivolous and vexatious lawsuits are able to get away with it for a while, with courts giving them many, many chances and being extremely reluctant to issue sanctions. And, even when sanctions are issued, they tend to be relatively low. However, with such repeat offenders, we've often seen that courts across the country take notice, and once one court has sanctioned this kind of behavior, it can open the floodgates. We'll see what happens in other Biss lawsuits.

Filed Under: derek harvey, devin nunes, legal fees, sanctions, slapp, steven biss
Companies: cnn

Steven Biss Loses Yet Again; Judges Still Resist Sanctions

from the so-many-second-chances dept

It truly is incredible how many second chances the courts are willing to give lawyers who clearly seem to be filing vexatious SLAPP suits. The lawyer in Devin Nunes' long list of SLAPP suits, Steven Biss, has a few other clients as well, though so many of them seem to be in the same Trumpist circles. The other thing they have in common is that Steven Biss seems to have no problem filing vexatious wasteful SLAPP suits to try to stifle speech. And these cases always fail. It really kinda makes you wonder (1) why anyone would hire Biss and (2) who's paying for all of these failed lawsuits? This latest one is a follow-up to a case we covered a little over a year ago, in which Biss lost a case he filed on behalf of a Russian-born academic, Svetlana Lokhova, going after a Cambridge academic named Stefan Halper and a variety of media organizations.

As we explained last year, the case really stemmed from some news stories that came out soon after Michael Flynn was fired as National Security Advisor. A bunch of stories came out claiming that there were "concerns" about potential Flynn links to Russia, including some stories that mentioned a dinner that Flynn had with some people in Cambridge, including Lokhova. Lokhova blamed Halper as the source of these stories, which she claimed were defamatory (even though many of them didn't even name her). As we noted, there is a Nunes/Lukohova connection in that Nunes referenced Lukhova as part of his bizarre conspiracy theory saying that Robert Mueller's team should face criminal charges. Nunes seemed a lot more concerned about people accusing Flynn of stuff and then investigating it, than whether or not there was any truth to the claims.

Either way, the lower court tossed out the case, noting that most of the articles/statements in question were published over a year earlier, meaning that the statute of limitations had passed. As for the statements that were made more recently, they weren't defamatory. The district court judge did call out Biss' bad behavior in the case, but still opted not to issue sanctions against him.

Biss appealed, and the latest ruling is from the 4th Circuit basically saying everything the district court said all over again -- including agreeing not to sanction Biss, even as the judges seem to recognize that he's pursuing a garbage case (and that he has a history of this).

Once again, the court notes that statements made outside of the statute of limitations cannot be the basis for a defamation claim and, once again, rejects the idea that just because people tweeted links to those articles more recently that it counts as republication. As we've covered many times, it's pretty widely settled that there's a "first publication" rule, and the statute of limitations starts ticking when a story is first published. Linking to it does not restart the clock. The court even notes that the case that Biss tried to rely on to make this argument... says the opposite.

Appellant relies heavily on Stephen G. Perlman, Rearden LLC v. Vox Media, Inc., No. 10046, 2015 WL 5724838, at *19 (Del. Ch. Sept. 30, 2015) (denying a motion to dismiss a claim that alleged a defamatory statement was republished by a hyperlink reference because republication generally presents a question of fact). Appellant’s reliance on Perlman is misplaced for two reasons. First, the Superior Court of Delaware subsequently granted summary judgment on the issue, holding that a hyperlink directing readers to a previous article on the same website does not direct the previous article to a new audience, it merely reshuffles the existing audience. See Perlman v. Vox Media, Inc., No. N195C-07-235, 2020 WL 3474143, at *8 (Del. Super. Ct. June 24, 2020). That is precisely the case here. The original New York Times article that Appellant alleges was defamatory was hyperlinked in a later New York Times article. Thus, the hyperlink served as a reference for the New York Times’ existing audience and did not direct the old article to a new audience. Second, the plaintiff in Perlman alleged that the text that contained the hyperlink was itself defamatory. Appellant makes no such allegation here. Nor could she credibly do so, given that the hyperlink is contained in the underlined portion of the following sentence: “Mr. Halper’s contacts have prompted Republicans and the president to incorrectly accuse the F.B.I. of spying on the campaign.” J.A. 311. Clearly the text in which the hyperlink was contained bears no relationship to Appellant. Thus, Appellant’s attempt to rely on a factual dispute regarding whether the hyperlink constitutes republication fails.

Other people tweeting links to the articles also does not constitute republication. And, again, the court is not at all impressed with the case Biss thinks helps his cause:

Appellant further asserts that republication occurs each time a third party tweets an article, thus re-setting the statute of limitations and exposing the original publisher to liability. Notably, Appellant cites no cases that are directly on point. Instead, Appellant relies almost exclusively on Weaver v. Beneficial Finance Co., a Virginia Supreme Court decision from 1957. See 98 S.E.2d 687 (Va. 1957). In Weaver, the court analyzed whether sending an allegedly defamatory letter to the plaintiff’s employer constituted republication because any claim based on the original publication of the letter was time barred. Id. at 689–90. The Weaver court observed, “It is well settled that the author or originator of a defamation is liable for a republication or repetition thereof by third persons, provided it is the natural and probable consequence of his act, or he has presumptively or actually authorized or directed its republication.” Id. at 690. The court qualified its observation by noting “the original author is not responsible if the republication or repetition is not the natural and probable consequence of his act, but is the independent and unauthorized act of a third party.” Id. Here, Appellant argues that each third party tweet constitutes republication pursuant to Weaver because Weaver further observed that “where the words declared on are slanderous per se their repetition by others is the natural and probable result of the original slander.”

Ignoring for a moment that Weaver was decided over 60 years ago, well before the ubiquity of the Internet, this issue can be resolved pursuant to the terms of Weaver itself because there the court recognized a distinction when applying republication rules “to newspapers and magazines” as opposed to individuals. Weaver, 98 S.E.2d at 691 (citing Hartmann v. Time, 166 F.2d 127 (3rd Cir. 1947)). The citation to Hartmann is particularly significant because in Hartmann, the Third Circuit observed that with respect to newspapers, the “single publication rule is the preferable one” because public policy and the freedom of the press command that “newspapers and magazines which are published on a nationwide basis[] should not be subjected to the harassment of repeated law suits.” 166 F.2d at 134. This observation is consistent with the Armstrong court’s pronouncement that the “rationale underlying the single publication rule” aims to “avoid the overwhelming multiplicity of lawsuits that could result from defamatory statements contained in mass publications such as newspapers and magazines.” 2003 WL 1960685, at *2. If each third party tweet containing the article were to constitute a republication, the multiplicity of lawsuits assuredly would be beyond overwhelming.

As for the statements that were published within the statute of limitations, they also have myriad problems. First, it's not clear that Biss sued the right party. One of the statements at issue was a series of tweets from Malcolm Nance, who was not sued. Instead, Biss/Lokhova sued MSNBC, where Nance is a contributor. And that runs into some problems:

However, even assuming arguendo that the tweets are defamatory, Appellant’s claim fails because she has not adequately pled facts that support holding NBCUniversal liable pursuant to the respondeat superior doctrine. “[U]nder the traditional doctrine of respondeat superior, an employer is liable for the tortious act of his employee if the employee was performing his employer’s business and acting within the scope of his employment.” Parker v. Carilion Clinic, 819 S.E.2d 809, 819 (Va. 2018) (internal quotation marks omitted)....

[....]

The sole factual allegation supporting Appellant’s conclusory statement that Nance “conducts the business of ‘NBC/MSNBC’” on his Twitter account is that “NBC/MSNBC” appears in Nance’s Twitter bio. J.A. 76. But viewed in context, this is not enough to give rise to apparent agency. “NBC/MSNBC” appears at the end of a long list of credentials that are personal to Nance. Moreover, Nance’s username, profile picture, and banner contain no mention of NBC, and the profile contains a link to a website that is operated by an organization for which Nance serves as the executive director. Finally, one of the allegedly defamatory tweets appears in a thread of tweets that begins with Nance promoting his personal book. Thus, the only reasonable conclusion is that Nance was operating his Twitter account in his personal capacity and not with the actual or apparent authority of NBCUniversal. “[C]onclusory language in the complaint” does not alter this conclusion and cannot “establish vicarious liability.” Garnett, 892 F.3d at 146. Therefore, we affirm the district court’s dismissal of Appellant’s defamation claims based on tweets authored by Nance.

There's also a Washington Post article, but there's a big problem with that one: it's not even remotely defamatory:

The amended complaint alleges two defamatory false statements in the Post Article: (1) that “[Appellee] Halper ‘attended’ . . . the February 2014 dinner”; and (2) that “[Appellee] Halper and Dearlove were disconcerted by the attention the then-DIA chief showed to a Russian-born graduate student.” J.A. 75. We can quickly dispose of any claim regarding the first statement because it is plainly “of and concerning” Appellee Halper alone and says nothing about Appellant, let alone anything defamatory. Schaecher, 772 S.E.2d at 598. Moreover, the dinner in question would have to be particularly extraordinary for merely noting one’s attendance to carry the required “defamatory sting.” Id. at 594.

Regarding the second statement, we conclude that it cannot be reasonably read to defame Appellant, either directly or through implication or innuendo. The statement expresses that Appellee Halper and Dearlove “were disconcerted by the attention” General Flynn showed to an unnamed graduate student. Even if we infer the unnamed graduated student is Appellant, it says nothing of her behavior toward General Flynn -- it only addresses his behavior toward her. This is especially relevant given the article included a disclaimer reporting, “[T]he student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred.” J.A. 75.

So, uh, there's nothing defamatory in there at all.

Because Biss is Biss, he also tried to toss in the kinds of excess claims that you see in too many bogus defamation SLAPP suits these days: tortious interference and civil conspiracy. The court dumps each easily.

Then we get to the sanctions section, and, at the beginning, it sounds like the court really is thinking about finally sanctioning Biss for his bad behavior. They're certainly aware of it.

Of note, this is not the first time attorney Biss’s litigation conduct has earned reprimand. His history of unprofessional conduct is long. See, e.g., Nunes v. Cable News Network, Inc., No. 3:19-cv-889, 2020 WL 2616704, at *2 (E.D. Va. May 22, 2020) (“It is with chagrin that the Court must begin to address this motion by observing that Plaintiff engages in ad hominin attacks against CNN and others in the Amended Compliant which the Court cannot tolerate.” (alterations and internal quotation marks omitted) (quoting Steele v. Goodman, No. 3:17-cv-601, 2019 WL 3367983, at *3 (E.D. Va. July 25, 2019))); see also Nunes v. Lizza, 486 F. Supp. 3d 1267, 1299–1300 (N.D. Iowa 2020) (requiring Biss to file “a second amended complaint . . . stripped of all such spurious allegations” and directing Biss “not to file any further public pleadings referencing such matters without first obtaining leave of the Court and showing that there is a good faith factual basis for the allegations and that they are relevant and material to some matter at issue in this litigation”). In fact, attorney Biss had his license suspended in 2009 for unprofessional conduct including breaching fiduciary duties and violating federal securities law. See Va. State Bar v. Biss, No. CL07-1846 (Va. Cir. Ct. Nov. 26, 2008). And, even during his suspension period, attorney Biss failed to be forthright about his suspension status with an opposing party when engaging in negotiations on behalf of a client, resulting in an additional 30 day suspension of his license. See In re Steven Scott Biss, No. 09-032-078962 (Va. State Bar Disciplinary Bd. Nov. 3, 2009).

Basically, the appeals court says that choosing not to discipline Biss is well within the district court's discretion:

The district court chastised attorney Biss for “directing unprofessional ad hominem attacks at [Appellee] Halper and others,” noting that such behavior “adds nothing but unnecessary heat to this litigation.” J.A. 331. But in the end, the district court elected not to sanction attorney Biss at this point and denied the motion to sanction without prejudice. We agree with the district court’s observations and endorse the court’s reprimands concerning inappropriate ad hominem attacks. We conclude, however, that the district court acted within its discretion because we are not “left with the definite and firm conviction that a mistake has been committed.” Six v. Generations Fed. Credit Union, 891 F.3d 508, 519 (4th Cir. 2018). To the contrary, the record establishes that although the district court did “not condone the [litigation] tactics” at issue, it elected to exercise caution and employ a wait-and-see approach based on post-judgment litigation.

And thus, Biss escapes further sanction yet again. Given his activities over the past few years, it does not seem like Steven Biss has any intention of changing his behavior. It seems quite likely that we will continue to see him filing frivolous and vexatious SLAPP suits that seek to silence journalism and commentary about his crew of Trump-loving clients.

All this, of course, is just yet another reminder that every state needs better anti-SLAPP laws and we need a federal anti-SLAPP law to help stop these lawsuits and put the filer of them on the hook for the legal fees of defendants.

Filed Under: anti-slapp, defamation, devin nunes, malcolm nance, slapp, stefan halper, steven biss, svetlana lokhova

Devin Nunes Loses Yet Another One Of His SLAPP Suits

from the keep-'em-coming dept

A little over a year ago, a DC watchdog group had asked the Office of Congressional Ethics to investigate Rep. Devin Nunes over his total failure to disclose who the hell is paying for all of his various frivolous SLAPP suits. As the group, Campaign Legal Center noted, Congress is forbidden from receiving free legal services unless they have set up a Legal Expense Fund -- and at least at the time of the investigation request, Nunes had not done so, despite having filed a bunch of lawsuits over the previous year.

As far as I can tell, nothing ever happened regarding that, but the issue is again worth exploring. Devin Nunes has been losing his lawsuits (badly) but continuing to push on with them anyway. In the fall of 2019, Nunes sued Fusion GPS and Glenn Simpson claiming racketeering (It's Not RICO, Dammit), because (he bizarrely claimed) they were harassing Nunes by filing a different ethics complaint against him. Nunes had some silly story about how Fusion GPS was trying to "interfere" with his "investigation." The "investigation" being Nunes' laughable attempt to argue that the Steele Dossier was illegal.

Anyway, a year ago that case was easiliy dismissed with the court warning Nunes' lawyer Steven Biss that, while he could refile, if they didn't add more substance to the complaint, they may face Rule 11 sanctions. In a move that will surprise no one, Biss/Nunes still filed an amended complaint last April. Now the case has been dismissed again. For reasons that I'm not clear on, over the summer the case was reassigned to a different judge, and that's why the new dismissal is from Judge Rossie Alston, rather than Judge Liam O'Grady, who handled the first dismissal.

The judge does the basic "It's Not RICO, Dammit" analysis to highlight that the Nunes/Biss claims of racketeering are ridiculous:

Here, Plaintiff fails to plausibly plead an association-in-fact enterprise because the Second Amended Complaint does not sufficiently allege the three structural features critical to support a RICO enterprise allegation. Both the Second Amended Complaint and Plaintiff’s Opposition merely recite the elements of an association-in-fact enterprise and allege only conclusory facts.

Critically, no reading of the facts alleged in Plaintiff’s Second Amended complaint can support a finding that an enterprise operated with the purpose or relationships the law requires.... Instead, the Second Amended Complaint is best read to allege that Defendants and the three other individuals and entities named in that document engaged in independent, parallel conduct directed at Plaintiff Nunes. By Plaintiff’s own telling, the entities and persons involved had different memberships and methods—even assuming they all shared the same generalized “motive” to harm Plaintiff’s political career. On its face, this is insufficient evidence of an association-in-fact enterprise with a shared purpose.... The only connection Plaintiff alleges between Defendants and Campaign for Accountability, McClatchy, and Mair is that Defendants “chose CfA, Mair and McClatchy” as “fronts or ‘cut-outs’ to carry out the obstruction scheme.”... These rote allegations that Defendants “operated” and “conducted the business of the enterprise” are unsupported by any specific facts. At best, Plaintiff alleges “consciously parallel conduct, which is not sufficient to satisfy Twombly’s pleading standard[.]”

There's a lot more, but this is the same reason the original complaint got tossed out. The judge also notes that the basis of Nunes' RICO claim is that... people filed an ethics complaint against him. The judge appears to raise his eyebrows at this concept:

Before analyzing the specific predicate acts, the Court acknowledges that Plaintiff’s case rests on importing a wholly novel set of facts—ethics complaints submitted against a sitting congressperson and providing research on that lawmaker to a news outlet for publication—into the civil RICO context.

Over and over and over again, the court finds that Biss just made a bunch of unsubstantiated claims that can't possibly be RICO. And thus, in the end:

All told, Plaintiff has failed to establish that the facts set forth in his Second Amended Complaint add up to form a single RICO predicate act. The Court reaches this conclusion having considered, as it must when deciding a motion to dismiss, the facts alleged in the light most favorable to Plaintiff

Given that Judge O'Grady had already warned Biss and Nunes that filing more of this nonsense may lead to Rule 11 sanctions, perhaps you'd expect Judge Alston to follow through on that threat. Unfortunately, as is all too often the case, the judge has decided to go easy on Biss (despite the fact that he keeps filing so many sketchy lawsuits). The defendants in the case even highlighted to the judge Biss' and Nunes' track record of filing all these bogus SLAPP suits. And, even so, the court lets them off the hook:

The Court declines to impose sanctions under Rule 11 at this time. The allegations made by Plaintiff are serious. They just cannot and do not confer authority to this Court to address the complaints Plaintiff has made. In this regard, Plaintiff’s counsel is reminded that litigation “asserted in bad faith or for the purpose of harassment” may be met with sanctions. ... Here, Plaintiff’s counsel has filed three complaints in this case since September of 2019. The Court has not issued a favorable ruling on any of the claims Plaintiff asserts. Accordingly, the Court’s dismissal of Plaintiff’s RICO claims is with prejudice and without leave to amend because in the Court’s view, amendment would be futile

So... why no sanctions? No further explanation is given. This is, unfortunately, par for the course. As we've seen over and over and over again, lawyers tend to have to have a reputation for filing dozens of these kinds of bogus lawsuits before courts finally start issuing sanctions.

So, no, Devin, it's not RICO, and you and Biss got off lucky (again!) this time, even though you still lost, like you've lost all of these lawsuits. And many of us are still wondering, who is paying for all of this wasteful, vexatious litigation?

Filed Under: 1st amendment, anti-slapp, devin nunes, free speech, glenn simpson, rico, sanctions, slapp, steven biss
Companies: fusion gps

As Steven Biss Continues Filing Bogus SLAPP Suits, He Finally Gets Sanctioned In Case Involving Devin Nunes' Aide

from the how-is-this-not-the-norm-yet? dept

Lawyer Steven Biss has built up quite a reputation for himself over the past few years, especially in filing highly questionable, obviously bogus SLAPP suits on behalf of Rep. Devin Nunes and a rotating cast of characters in and around Trumpist orbits. For example, he just recently was the lawyer for Jack Flynn, the brother of disgraced (briefly) former National Security Advisor Michael Flynn, in suing CNN for pointing out that the Flynns had repeated some standard QAnon conspiracy nonsense in a video recorded at a family barbecue, and posted online with some QAnon hashtags. Jack was in the video which was then featured in a CNN story about QAnon. The crux of the defamation claim is this:

In the piece, O’Sullivan falsely claimed that “where we go one, we go all” was an “infamous QAnon slogan promoted by Trump’s first National Security Advisor Michael Flynn”.

The lawsuit tries to argue that "where we go one, we go all" is not in fact a QAnon slogan (they claim that the phrase goes back to John F. Kennedy -- ignoring the fact that today it absolutely is associated with QAnon as are the hashtags that Flynn used in posting it). The lawsuit is laughable and is likely to be laughed out of court like every other Biss SLAPP suit.

Speaking of which, days later, in yet another Biss SLAPP suit, a court finally sanctioned Biss. This case loosely involves Nunes, even though Nunes is not technically a party to the case. Instead, it involves one of Nunes' top advisors, Dereck Harvey. You might recognize Harvey from another story, about the time when Biss sent a letter on behalf of Nunes... threatening to sue fellow Congressional Rep Ted Lieu. In that story, we noted that just as Nunes was threatening Lieu, Congress had released a bunch of documents showing how Nunes' aide Harvey had worked with the since indicted Lev Parnas to try to set up some meetings between former Ukranian officials and Nunes.

That takes us to the present case. Back in October, Harvey sued CNN and Parnas over statements that were made on CNN, based on statements from Parnas and his lawyer, Joseph Bondy, about alleged efforts by Harvey to set up meeting with those very same former Ukrainian officials and his boss, Nunes. In February, the case was dismissed against CNN -- noting that the complaint failed to describe how the statements were defamatory, and a bunch of them weren't even about Harvey himself (which they'd need to be in order to be defamatory).

The judge gave Biss and Harvey a chance to file an amended complaint, which they did, at the very last minute.

Anyway, it would appear that the judge is not impressed by Biss's lawyering here, taking just a few weeks to dismiss the case and tell Harvey and Biss they're on the hook for CNN's legal fees. As the court notes, this whole case really seems to be a sort of Nunes-lawsuit-by-proxy:

As this Court previously explained, Harvey’s suit is at heart, a continuation of litigation of Congressman Nunes with respect to media coverage of his own political efforts in support of former President Trump... In fact, this Court was hard pressed to see how several of the allegedly defamatory statements cited in Harvey’s original Complaint had much to do with the Plaintiff at all, as they focused almost entirely on the actions of Congressman Nunes....

Also, as was found in the original dismissal, most of the statements in question were not actually defamatory:

It was also unclear to this Court how the statements at issue were in fact defamatory in nature, tending to “expose a person to public scorn, hatred, contempt, or ridicule.”... Harvey was acting as a Senior Advisor to Nunes, the “leader of the Republican opposition” to the first impeachment of former President Trump, and the public record includes House Republicans’ statements that there was “nothing wrong with asking serious questions” about the Bidens and their dealings with Ukraine. To suggest it was defamatory for CNN to state or otherwise imply that Harvey was assisting Nunes in his investigation of a political rival is simply without merit.

The point of an amended complaint after the initial complaint has been dismissed without prejudice is to fix the problems with the complaint (i.e., fixing the deficiencies that resulted in the case being dismissed). But it appears that didn't happen here and the judge seems to recognize that almost no effort was made here at all, other than to drag out the case.

The Plaintiff has done nothing to address this Court’s concerns that the statements have little do with Harvey at all. The statements allege nothing more than that Harvey was a source of information about Congressman Nunes or an unnamed subordinate acting in compliance with the orders of his superior.... The Plaintiff has also failed to address the fact that none of the statements are materially false... Adding the phrase “materially false” to certain paragraphs of the Amended Complaint does not change the substance of the statements, or the facts related to this case. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice.”) The Plaintiff did omit a portion of what is now alleged as Statement 5 that this Court held was clearly unactionable due to its status as an opinion.... However, with respect to Statement 5, Harvey still fails to state a claim on the bases that the statement only references Harvey as a source of information about Congressman Nunes and is not materially false.

Harvey made some additions to his Amended Complaint that were presumably meant to address this Court’s concerns that none of the statements were actually defamatory. For example, Harvey added allegations that CNN’s publications “could cost him his security clearance and subject him to discipline.” ... He also asserts that CNN’s reporting falsely accused him of publishing “derogatory statements concerning Nunes—Plaintiff’s superior” and that the accusations “were highly prejudicial” to his employment with the congressman.... Theses additions do not aide the Plaintiff’s case.

There's also the issue of actual malice. Harvey tries to argue that he's not a public figure so the actual malice standard doesn't matter, but as the court said in its original ruling, under 4th Circuit precedent, he clearly is. So then, there's this attempt to challenge the actual malice standard that the judge is (rightly) having none of:

Harvey’s next argument regarding actual malice is even less meritorious. Harvey asks this Court to completely ignore Supreme Court precedent and reconsider what he asserts to be an outdated actual malice standard established by New York Times Co. v. Sullivan... As Plaintiff’s counsel has already once been instructed, “for obvious reasons” a district court cannot simply overturn a decision of the Supreme Court. The actual malice standard as articulated by the Court in Sullivan controls in this case, and for the same reasons detailed in this Court’s earlier opinion, Harvey has failed to state a plausible claim that CNN and its reporters made any of the statements at issue with actual malice.

You almost get the feeling these batshit crazy cases are an attempt to get a case up to Clarence Thomas, given his well publicized desire to get rid of the Sullivan standard.

Either way, the court decides that this weak showing is easily sanctionable:

In the previous Memorandum Opinion, this Court specifically stated that Plaintiff Harvey was permitted to file an Amended Complaint if he possessed facts to cure the “manifest deficiencies” addressed in that opinion by March 4, 2021.... This Court also specifically warned that such Amended Complaint would be subject to dismissal if the Plaintiff failed to cure the noted deficiencies.... Nevertheless, after the clerk’s office of this Court had closed and just hours before the deadline of midnight on March 4, 2021, the Plaintiff filed an Amended Complaint nearly identical to the original Complaint filed in this case and thoroughly discussed in this Court’s Memorandum Opinion. As the above analysis explains, the Plaintiff did not cure any of the deficiencies noted by the Court. The filing of such an Amended Complaint is the sort of bad faith courts have repeatedly found to merit sanctions under 28 U.S.C. § 1927 and the courts’ inherent power to sanction.....

... This Court finds that Plaintiff Harvey’s filing of the Amended Complaint unreasonably multiplied the proceedings in this case, and this Court is satisfied that it is appropriate to impose a sanction as to the Plaintiff and his counsel under this court’s inherent authority

The end result is that a combination of Harvey, Biss (and a third lawyer in the case who was seeking to get off the case) are on the hook for CNN's legal fees in the case. Of course, since it's never been clear who has been paying Biss for all these lawsuits in the first place, it remains unclear who will be paying the sanctions as well.

Filed Under: 1st amendment, actual malice, defamation, dereck harvey, devin nunes, free speech, jack flynn, legal fees, michael flynn, sanctions, slapp, steven biss
Companies: cnn

Court Tosses Devin Nunes' Silly SLAPP Lawsuit Against CNN

from the finally dept

As you may recall, Rep. Devin Nunes has spent the last few years suing all sorts of critics and journalists, in a vexatious bout of abusing the courts to try to stifle criticism. Most famously, Nunes sued a satirical cow on Twitter (that case is still ongoing). But in December of 2019 he sued CNN. As we noted at the time -- despite a weird column by a media critic at the Washington Post saying that this case was "halfway decent" -- the case seemed like the dumbest Nunes' suit we'd seen so far.

The filing was more performative nonsense, which seemed much more focused on spewing utter rubbish rather than making real defamation arguments. For example, a key part of the defamation claim involved statements on CNN about Nunes' contacts with Lev Parnas, the former Rudy Giuliani henchman who was arrested as part of a plot to get information from Ukraine to embarrass Joe Biden. Nunes' lawsuit argued that CNN defamed him... by getting the date wrong as to when Nunes and Parnas communicated. But... even if the date is wrong, that's not defamation. The case, like most other Nunes' cases, was filed in state court in Virginia, but thankfully, it was kicked up to federal court in NY. Bizarrely, Nunes went on TV claiming that CNN would be so scared to face him in court that the company likely wouldn't show up, talking tough on Fox News about how he was going to have to "track them down" to "hold them accountable." In fact, Nunes' "bet" Sean Hannity that CNN would "run" from this lawsuit and "not show up in court."

I don't think Hannity "took" the bet, but he would have won. CNN went to court and has now won the case. Easily. Let's just say Judge Laura Taylor Swain is not impressed by Nunes and whatever nonsense his lawyer, Steven Biss, presented to the court. Much of the opinion focuses on "choice of law" issues -- i.e., which state's defamation laws are at play here. There are four choices: Virginia, Washington DC, New York, or California. Nunes, basically wanted to apply any law except California's. You might think that's odd, because he (theoretically, at least) "lives" in California. He represents a district in California, and if any "damage" were actually done to his political chances, that damage would be done in California. But Nunes does not like the defamation laws of his own state -- in part because California requires that before you sue someone for defamation you first ask them to retract what they've written.

The judge notes that Nunes made the choice to file this case in Virginia, and it appears that his lawyer, Steven Biss, is so bad at this that he didn't even understand how Virginia's choice of law principles work -- because they make it pretty damn clear, that the proper state's laws to use are... California's.

Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia’s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that the information would be of most interest to third parties in that state and would be opened and read by a substantial number of persons there. Accordingly, the governing choice of law rule does not contemplate the application of New York state law based on the location of the reporters and the news organization.

In response to the argument that the laws that should be used are where the plaintiff suffered "the most harm" Nunes tried to argue that the real harm was in Virginia (?!?) or DC, not his "home" state of California. That's kinda telling:

Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community.

But the judge basically says "lol, no."

Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens.

Having considered persuasive authority and the legal and practical considerations underpinning Virginia’s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff’s claims.

And, so, California defamation laws apply, and California's laws require you to first ask for a retraction. Nunes tries to argue around that... but not very successfully.

Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”.... Given that CNN publishes multiple times a day and published the article in question in electronic form, this argument against the statute’s application is without merit.

Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se.... In support of his argument against the application of the statute to Plaintiff’s claims, Plaintiff cites inapposite cases that do not involve the retraction statute. See Todd v. Lovecruft, No. 19-CV-01751-DMR, 2020 WL 60199, at *20 (N.D. Cal. Jan. 6, 2020) (holding, in case involving application of anti-SLAPP statute to allegations of sexual misconduct, that common law elements of defamation cause of action did not require plaintiff to plead special damages for claim of defamation per se); Clark v. Hidden Valley Lake Ass’n, No. 16-CV-02009-SI, 2018 WL 3069285 (N.D. Cal. Apr. 18, 2018) (upholding damages verdict despite lack of proof of actual damages, where plaintiff had prevailed on claims of defamation per se). Neither of these cases involved news media publication of the allegedly defamatory material, nor did any of the authority Plaintiff cited in this connection construe the retraction statute.

The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se....

[....]

Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.”

And thus, the court finds that Nunes failed to follow California defamation law and first demand a retraction. That means he can only plead special damages. "Special damages" are, basically "actual" damages -- a direct monetary loss that the plaintiff can attribute to the defendant's actions. And, guess what? Steven Biss's lawsuits didn't quite have that (because there were no actual damages):

Plaintiff’s AC fails to meet the minimum pleading requirements for special damages established by Rule 9(g). Plaintiff’s original Complaint, filed on December 3, 2019, made no mention of special damages at all.... CNN moved to dismiss the Complaint on substantially the same grounds as those presented in this Motion, thus alerting Plaintiff to CNN’s arguments and to a potentially critical deficiency in the Complaint. (See docket entry no. 15.) Thereafter, Plaintiff amended his Complaint to claim he has “suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation, mental suffering, injury to his reputation, special damages, costs, and other out-of-pocket expenses, in the sum of $435,000,000, or such greater amount as is determined by the Jury.”

While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).

Oops.

And, then, of course, there was the utter nonsense of the "conspiracy" claim. Nunes' complaint basically tried to argue that CNN was out to get him, and that's not how any of this works.

Finally, the Defendant argues that Plaintiff’s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [ ] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff’s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.

I'm not entirely sure why CNN didn't also move to make use of California's anti-SLAPP law, since they were able to get California's defamation law applied to the case -- because that might have put Nunes in the position of having to pay for CNN's legal fees. But, either way, it's another big (but totally expected) loss for Nunes in his SLAPP crusade.

And... we still don't know who's paying for all of these lawsuits.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, free speech, new york, slapp, steven biss, virginia
Companies: cnn

Devin Nunes Files Another SLAPP Suit; Sues The Washington Post Again

from the suppressing-speech dept

Devin Nunes is one of the most vocal supporters of Parler, regularly insisting that he supports Parler because Parler supports free speech (of course, as we've highlighted, Parler blocks users quite frequently, contrary to its marketing claims). Of course, Nunes is a free speech hypocrite. As we've highlighted over the last few years, he seems to have an itchy trigger finger when it comes to suing the media and various critics for their free speech, in a variety of SLAPP lawsuits -- with no clear answer yet on who is actually paying for these lawsuits designed to stifle and suppress free speech.

Earlier this year, Nunes sued the Washington Post and reporter Shane Harris in the Eastern District of Virginia. That case was was transferred to the federal district court in DC where it continues to move forward (slowly). Now Nunes, with his regular lawyer Steven Biss, have sued the Washington Post yet again, this time with reporter Ellen Nakashima. Once again, it was filed in the Eastern District of Virginia, meaning that the Washington Post is likely to go through the same process again to try to transfer the case to the DC court.

Like so many Nunes/Biss SLAPP suits, this one is... bad. At issue is the news from right after the election that a Trump loyalist and former Nunes staffer had been made the NSA's General Counsel apparently over the objections of the NSA's own director. This has raised a bunch of alarms for a variety of reasons -- and is seen as evidence that for all of the bullshit talk of "the deep state" being out to get Trump, he's spending his last couple months in office trying to construct his own deep state.

It was Ellen Nakashima at the Washington Post who broke the story of the Ellis appointment, and that's the article that Nunes is now suing over. The lawsuit -- somewhat laughably -- argues that two sentences in the article are defamatory. Neither are defamatory. These are the two sentences:

“In March 2017, [Michael Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower”

“News reports stated that Ellis was among the White House officials who helped Nunes see the documents — reportedly late at night, earning the episode the nickname ‘the midnight run.’ [Three White House officials tied to sharing of intelligence files with Devin Nunes]

The filing nitpicks at both of these statements, but has a difficult time alleging false statements of fact, which is kind of necessary for there to be defamation. For example, with that second statement while the WaPo article talks about the alleged midnight run, Nunes first says it "never happened." But then almost immediately admits that he did, in fact, go to the White House -- it just wasn't at night. Whether or not the meeting was at night or "when the sun was out," as Nunes claims, is not defamatory. Even more to the point, the WaPo article highlights that its citing "news reports" and that the nighttime aspect of the meeting was "reportedly" what happened, and noting (accurately) that others have referred to this as "the midnight run." In other words, the article appropriately hedged those points and highlighted that it was covering what others were saying.

And then there's this: even though the Washington Post was basing this statement on "news reports" Biss/Nunes tries to argue that those news reports somehow don't count, because they were from the NY Times which is "well-known for spreading false statements." I kid you not.

Upon information and belief, one of the “News reports” referred to in the Article is a “report” manufactured by New York Times reporters Adam Goldman, Matthew Rosenberg and Maggie Haberman, well-known for spreading false statements and defamation on behalf of anonymous “sources” at the FBI and State Department.

This is conspiracy theory fan fiction masquerading as a lawsuit.

There is basically no attempt to get over the actual malice standard necessary for any of this to be defamation of a public figure. The complaint tries to twist some minor potential inaccuracies into evidence of knowledge that the statements were false, but that is not at all supported by the complaint. It argues, ridiculously, that she should have known certain statements from Rep. Adam Schiff should not be trusted because Schiff and his staff "had an axe to grind against Plaintiff and a reason to lie." What? That is not at all how the actual malice standard works.

This is yet another ridiculously weak complaint that is hard to see as anything other than yet another nuisance SLAPP suit from an incredibly thin-skinned Devin Nunes who has now sued multiple media outlets and reporters (not to mention a satirical cow). For all his talk about supporting free speech and being against the suppression of speech, these lawsuits suggest that no one in Congress is more engaged in the blatant suppression of speech than Devin Nunes.

Once again, these kinds of intimidation tactics by lawsuit are exactly why we need a federal anti-SLAPP law (and why Virginia needs to get its act together early next year and pass the anti-SLAPP bill it almost passed earlier this year).

Filed Under: 1st amendment, defamation, devin nunes, ellen nakashima, free speech, slapp, steven biss, virginia
Companies: washington post