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.

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Comments on “Steven Biss Loses Yet Again; Judges Still Resist Sanctions”

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10 Comments
That One Guysays:

This is how you get contempt for the courts

At this point there seems to be so many spineless judges that I suspect that it would take a lawyer literally walking into court and taking a dump on the judge’s desk while flipping them the bird for a sanction to be handed out, and even then I wouldn’t put good odds on it.

Having multiple courts and judges pointing out that a lawyer is acting unprofessionally and abusing the system only to refuse to hand out any penalties for doing so just makes it clear that such behavior is indeed completely acceptable and that any ‘warnings’ are nothing but hot air that can be ignored. Judges need to either bring the hammer down or stop whining when lawyers take advantage of the knowledge that there are no penalties for abusing the system for personal gain.

Anonymoussays:

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.

And furthermore, the original publisher can sue everyone for copyright infringement! Because that’s how that would work.

Unrelated: Courts now using phrase "ad hominem attack". [Rolls eyes at stupid word salad.]

Bobvioussays:

Resetting the clock on statute of limitations

If all that was needed to keep the lawsuits (and deaths by a thousand cuts) coming, was to reset the clock upon a "republication", then one only needs a bunch of proxies/sockpuppets/bots to do so. After all, the intention appears to repeatedly go after the ORIGINAL source, not the echoes.

"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.? "

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