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

Legal Issues

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: anti-conservative bias, rico, search, steven biss
Companies: dj lincoln, google