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

Court Tosses RICO Lawsuit Demanding $90 Million And The Dissolution Of Google For Supposed Anti-Conservative Bias

from the they-hate-me-for-my-narrow-views-on-acceptable-freedoms dept

A lawsuit [PDF] against Google over ad practices and search engine rankings has been dismissed. The allegations start normally before taking a sharp turn into some recently favored causes of action. First, there's the RICO. Second, the plaintiff claims the RICO and everything that goes with it is a result of Google's anti-conservative bias.

Here's the most coherent part of the allegations:

Plaintiff operated a website, https://seniorcare.care/ (“the website”), from 2014 to 2019 that aimed to connect caregivers and assisted living professionals with seniors and families. Between 2016 and 2018, Defendant communicated with Plaintiff through emails, chat rooms, and blogs and induced Plaintiff to make changes to the website to conform with Defendant’s standards and to optimize the number of visits to the website, which Plaintiff did at great cost and expense.. For example, Plaintiff made the website “mobile friendly,” increased the website’s security, created social media accounts, and removed certain ads and pop-up content. Plaintiff made these changes in reasonable reliance on Defendant’s promise that they would improve the search results for the website on Google Search.

That's the end of the reasonable part of the complaint. The next two sentences indicate where this is headed.

Defendant, however, had “blacklist[ed]” Plaintiff and intentionally manipulated Google Search’s algorithms in a way that actually worsened the website’s search results. Defendant did this because conservatives own and operate Plaintiff.

Because of this perception, a lawsuit was filed in May of last year. In addition to claims of anti-conservative bias, the plaintiff lists RICO, Florida's RICO analogue, and the usual tortious interference. Oh, and there's a demand for $90,000,000 in damages. That, or Google agrees to dissolve itself. You know, reasonable demands.

And here's the RICO part of it:

These entities and individuals “operated with a common purpose” to discriminate against and censor conservatives and to damage businesses that conservatives run.

This, too:

Defendant engaged in at least two acts of wire fraud to accomplish this purpose.

The RICO claim fails for a very simple reason: a conspiracy needs more than one "conspirator." Otherwise, there's no conspiring.

Plaintiff has not plausibly alleged the existence of two distinct entities. To the extent that Plaintiff contends that Defendant was part of an enterprise with Alphabet, Inc. and YouTube, Plaintiff has not alleged any facts to support a conclusion that these related corporate entities are distinct for RICO purposes, rather than one corporate “person.” To the extent that Plaintiff contends that Defendant was part of an enterprise with its officers, agents, or employees, or with Alphabet, Inc.’s or YouTube’s officers, agents, or employees, Plaintiff has not identified any of these individuals and has not alleged any facts to support a conclusion that the individuals did not operate within their official capacities for their corporate employers.

Even if the court were to agree that multiple employees overseeing various enterprises under the Alphabet umbrella could credibly be called a "conspiracy," the plaintiff hasn't offered any evidence these many employees conspired against his business and website because the website owner is a conservative.

While Plaintiff alleges in a conclusory manner that members of the purported enterprise had a common purpose to discriminate against and censor conservatives and to damage businesses that conservatives run, Plaintiff has not alleged any facts to demonstrate that each member shared this common purpose.

And the "racketeering" part of the RICO allegations is no better. The court has stared long and hard at the complaint and can't find anything supporting the allegations made or the conclusions drawn by the plaintiff.

As best the Court can discern from the Amended Complaint, the “scheme or artifice to defraud” that Plaintiff alleges is Defendant’s scheme to suppress conservative viewpoints while claiming viewpoint neutrality. See, e.g., DE 19 ¶ 18 (“Google has defrauded hundreds of thousands, perhaps millions, of conservative Floridians in an ongoing effort to discriminate and purge conservatives from Google’s platforms.”); id. ¶ 43 (“Google fraudulently manipulated Search, and made it appear as if Lincoln did not exist.”). And, as best the Court can discern, the transmitted wire communications that Plaintiff alleges are Defendant’s email, chat, and blog communications with Plaintiff about how to conform the website to Defendant’s standards and to optimize the number of visits. See, e.g., id. ¶ 54 (“Google and its agents communicated with Lincoln in interstate commerce hundreds of times using the wires (via Google blogs/chat rooms).”). Plaintiff has not alleged facts to show how the wire communications were “for the purpose of executing” the scheme or artifice to defraud. That is, Plaintiff has not explained how Defendant’s communications about website modifications were for the purpose of furthering the suppression of conservative viewpoints.

If those communications weren't fraudulent, there's no wire fraud. For communications to be fraudulent, they need to be deceptive. That Google never informed the plaintiff of things that actually weren't happening isn't actionable.

Plaintiff’s claim of fraud relies, at least in part, on the failure of Defendant to communicate certain information to Plaintiff. See, e.g., DE 19 ¶ 15 (“Google fraudulently concealed from Lincoln the fact that Google intended to violate Lincoln’s First Amendment Rights and interfere with Lincoln’s business.”); id. ¶ 26 (“Google concealed the fact that no matter what Lincoln did, Lincoln would never obtain any Search results.”); id. ¶ 39 (“Google concealed its institutional bias from the public, including Lincoln.”); id. ¶ 62 (“In its many communications with Lincoln, Google concealed from Lincoln the material fact that Google discriminates against conservatives and that it fraudulently manipulates Search.”)

It's conjecture on top of conjecture, which isn't anywhere near what's needed to survive a motion to dismiss. That goes for the tortious interference allegations, too. There was no contract between Google and the plaintiff. Without a contract or agreement that could be interfered with, there's no basis for claims of interference.

Google argued the First Amendment protects its "editorial judgments in ranking search results" and, even if the allegations of bias were true, protects Google's biases as well. The plaintiff's response was basically, "No, it doesn't." Again, that's not nearly enough to sustain this lawsuit.

Plaintiff does not meaningfully respond to Defendant’s argument, provide any First Amendment analysis, or address this caselaw. Instead, Plaintiff simply states: “The First Amendment does not protect Google’s fraudulent conduct that induced Lincoln to change its website. Fraud and fraudulent concealment is not an ‘editorial judgment’.”

The court then points out this lawsuit is a prime example of "shotgun pleading," where every count adopts all of the proceeding allegations, resulting in the final count being a rerun of the entire pleading to that point. The court notes this makes it all but impossible for the court to suss out which allegations are tied to which cause of action, making the entire thing an incoherent mess. The complaint is dismissed, but without prejudice. The plaintiff has one more chance to amend the complaint into something the court can address on a point-by-point basis.

Even if this does return to court in better shape, it's unlikely to change the outcome. What the court could address shows the allegations are weak, conclusory, and supported by little more than the plaintiff's insistence he's being discriminated against.

Filed Under: anti-conservative bias, rico, search results
Companies: dj lincoln, google, seniorcare