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

Defamation

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