Devin Nunes' Lawyer Loses (Again) On Blatantly Silly RICO Lawsuit Against Google For 'Anti-Conservative Bias' In Search Results

from the where-are-the-sanctions? dept

Devin Nunes’ lawyer, Steven Biss has an impressively long track record of losing increasingly silly lawsuits for a variety of clients (beyond just Nunes). Back in January we wrote about a court dismissing a RICO lawsuit brought by “DJ Lincoln Enterprises” against Google, claiming that its search results involved anti-conservative bias. We didn’t even mention that Biss was the lawyer on that case, but he was. And, as is all too typical in Biss cases, he never, ever, gives in, even after a court has made it clear the case is going nowhere. Following the January dismissal, Biss filed an amended complaint, and Google had to ask for it to be dismissed again — and (as you would likely have guessed) the court has quickly and easily dismissed the case.

Basically, the court notes that the second amended complaint isn’t all that different from the complaint that was already dismissed. And the changes that were made were, well, not particularly convincing. On the RICO claims:

In its prior Order, the Court ruled that Plaintiff failed to plausibly allege the existence of
two distinct entities?a ?person? and an ?enterprise? that was not simply the person referred to by
a different name?for the purpose of pleading the RICO claims because the purported enterprise
consisted only of related (not distinct) corporate entities and miscellaneous unidentified
individuals or entities…. (?We do not quarrel with the basic principle that to establish liability
under ? 1962(c) one must allege and prove the existence of two distinct entities: (1) a ?person?;
and (2) an ?enterprise? that is not simply the same ?person? referred to by a different name.?).
Plaintiff now alleges that a RICO enterprise consisted of Defendant together with ?Alphabet, Inc.,
its CEO and Board of Directors, YouTube, its CEO and Board of Directors, and outside third-party
engineers, search engine optimizers, and digital sales marketing consultants (identified above).?
…. Alphabet, Inc. is Defendant?s parent company, YouTube is a video-sharing platform
that Defendant owns and operates, and Plaintiff has pled no allegations to show that the unnamed
CEOs and Board of Directors members were not operating in their official capacities for Alphabet,
Inc. and YouTube. … As the Court previously held, Plaintiff has not alleged
facts showing that Defendant, Alphabet, Inc., YouTube, and their officers, agents, or employees
are separate entities for RICO purposes, rather than a single ?person.? … Thus, Plaintiff has not demonstrated that these entities and individuals on their own
could form a RICO enterprise. Plaintiff does not argue otherwise.

As to the ?outside third-party engineers, search engine optimizers, and digital sales
marketing consultants,? Plaintiff identifies those entities as ?Godaddy.com, Bernstein-Rein
(b-r.com) and Ucodice.com.? … But Plaintiff has not pled
concrete, non-conclusory facts to support a plausible inference that each of these outside entities
knew about and shared a fraudulent or otherwise criminal common purpose with the purported
RICO enterprise. Cf. Cisneros v. Petland, Inc., 972 F.3d 1204, 1211-15 (11th Cir. 2020)
(explaining that a RICO claim requires a ?common purpose of engaging in a course of conduct
among the enterprise?s alleged participants? and affirming the dismissal of a RICO claim where
the plaintiff failed to plead concrete facts plausibly supporting an inference that the purported
enterprise?s participants shared a fraudulent purpose); Ray v. Spirit Airlines, Inc., 836 F.3d 1340,
1352-55 (11th Cir. 2016). Plaintiff alleges in a conclusory manner that the outside entities shared
Defendant?s common purpose to misrepresent its corporate philosophy and business model, to
induce Plaintiff to modify its website and business practices, and to discriminate against political
conservatives and their businesses. … Plaintiff has failed to identify any specific actions taken by any particular outside entity. Moreover, the outside entities? conduct that
is alleged at a high level of generality?providing information about how to improve website
search results?is innocuous conduct that does not itself demonstrate a fraudulent purpose…. Even if the outside entities are distinct from Defendant and could form a RICO
enterprise with Defendant, Plaintiff has not plausibly alleged that the outside entities were part of
the enterprise because the allegations do not support an inference that the outside entities shared
the purported enterprise?s common purpose.

As for straight up “fraud,” the court points out that the second amended complaint just… fails entirely to make a claim.

The allegations in the Second Amended Complaint do not satisfy the requirements of
Rule 9(b). Plaintiff alleges that Defendant engaged in fraud by inducing Plaintiff to make costly
modifications to its website to improve search results, when such modifications would not in fact
improve the website?s search results. … Plaintiff makes only
generalized allegations that Defendant communicated with Plaintiff between 2016 and 2018 in
emails, blogs, and online chats…. At minimum, Plaintiff has not identified the
precise statements that Defendant made to Plaintiff or the dates on which the statements were
made.3
Plaintiff has provided no explanation for why it is unable to plead with the specificity that
Rule 9(b) requires when the communications at issue were with Plaintiff itself. Plaintiff?s pleading
of affirmative misrepresentations that allegedly constitute fraud is insufficient under Rule 9(b).

Also, um, Google not informing you that it’s biased against conservatives (especially considering there’s no evidence to support that claim) is not, by itself, “fraud.”

Plaintiff also bases its fraud claims on omissions, alleging that Defendant behaved
fraudulently by failing to disclose certain information to Plaintiff. Specifically, Plaintiff alleges
that Defendant failed to disclose that it is biased against political conservatives and that, due to
that bias, Defendant would ensure that no modifications Plaintiff could make to its website would
improve search results. … As the Court stated in its prior Order,
knowing non-disclosure of information may support a fraud claim under Florida law if a duty to
disclose existed…. Plaintiff does not argue that, to the extent its fraud claims are based
on omissions, it is unnecessary to show a duty to disclose for any of the claims. Rather, Plaintiff
argues that its allegations show that Defendant did have a duty to disclose….
(?Google was in possession of information that Lincoln had a right to know because of
(a) Google?s position of superior knowledge and Lincoln?s lack of access to and lack of
opportunity to discover the truth, (b) Google?s superior bargaining power and Lincoln?s
dependence on Google for advice, counsel and protection regarding Search, and (c) because of the
relation of trust and confidence between Google (and its trusted partners) and Lincoln.?);…
(?Lincoln reposed trust and confidence in Google, which Google accepted. . . . As a result, a
fiduciary relationship arose between Google and Lincoln.?).

Possession of superior knowledge alone does not create a duty to disclose under Florida
law. Cordell Consultant, Inc. Money Purchase Plan & Tr. v. Abbott, No. 11-80416-CIV, 2012
WL 13148744, at *3 (S.D. Fla. July 11, 2012) (stating that a duty to disclose between parties to an
arms? length transaction based on exclusive and superior knowledge ?does not exist in the absence
of a fiduciary or other special or confidential relationship of trust because there is no duty imposed
on either party to protect or benefit the other?). And it is unclear why any disparity in the parties?
?bargaining power? is relevant when Plaintiff does not allege that the parties were bargaining;
Plaintiff provides no explanation on this point.

So now the case has been dismissed yet again, and the judge has said no more amended complaints allowed.

The Court concludes that giving Plaintiff further opportunities to attempt to
correct these deficiencies, which would undoubtedly lead to Defendant filing a fourth Motion to
Dismiss, is inappropriate.

Here’s the bit I’m still trying to understand. All of these Biss cases fail. And fail easily. They’re so obviously vexatious lawsuits with no chance of winning. So what is the point here? Filing lawsuits is not free, and someone has to be paying Biss to file so many garbage lawsuits. It remains unclear who is footing the bill for so many lawsuits and why they want to keep filing such frivolous lawsuits that are bound to fail.

Filed Under: , , ,
Companies: dj lincoln, google

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Comments on “Devin Nunes' Lawyer Loses (Again) On Blatantly Silly RICO Lawsuit Against Google For 'Anti-Conservative Bias' In Search Results”

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19 Comments
That One Guysays:

'Look at all these legal claims(that we made up)!'

So what is the point here? Filing lawsuits is not free, and someone has to be paying Biss to file so many garbage lawsuits. It remains unclear who is footing the bill for so many lawsuits and why they want to keep filing such frivolous lawsuits that are bound to fail.

‘Who’ might be still up in the air(and I suspect it would be very interesting to find out who’s bankrolling this) but the ‘why’ is glaringly obvious, it’s to help fuel the ‘persecuted conservatives’ lie that’s used to con the gullible into paying and/or supporting ‘conservative’ politicians.

Filing multiple lawsuit where the lawyer gets to basically make whatever claims they want and the judge has to seriously consider them(before laughing them out of court) helps to keep the fires stoked and provides juicy quotes to post online or repeat on tv ‘interviews’, keeping the persecution complex/fetish alive and the money flowing. As SLAPP suits show winning the legal case can at times be an afterthought, filing a lawsuit can have numerous other benefits for the one doing so.

Kevinsays:

Here’s the thing: I’m not saying that Steven Bliss isn’t a bad lawyer ? he very well may be ? but the truth of the matter is that these lawsuits aren’t really designed nor intended to be won. A first-year law student could tell you that they’re going to fail. They’re wholly performative in nature, designed to signal to the nutjob conservative base that Nunes is "fighting big tech" or whatever’s his windmill du jour. Not only does he bolster his image with the wingnuts, but it gives him more fodder to bilk them out of their money by fundraising on the back of this nonsense.

As frustrating as it is, until the Courts get serious about sanctioning attorneys for presenting this kind of time-wasting BS, it’s going to remain a valid strategy for people who are more interested in being right-wing media darlings than they are in actual governance.

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