Netflix Files Anti-Slapp Motion To Dismiss Lawsuit Claiming One Of Its Series Caused A Teen To Commit Suicide

from the even-an-algorithm-is-protected-speech dept

Because Netflix is big, it draws lawsuits. It has been sued for defamation, copyright infringement, and, oddly, defamation via use of a private prison's logo in a fictional TV show. It has also been sued for supposedly contributing to a teen's suicide with its series "13 Reasons Why," which contained a lot of disturbing subject matter that teens deal with daily, like bullying, sexual assault, and -- most relevant here -- suicide. The final episode of the first season contained a suicide scene, one that was removed by Netflix two years after the show debuted.

While undeniably a tragedy, the attempt to blame Netflix for this teen's suicide is severely misguided. The lawsuit filed by the teen's survivors alleges Netflix had a duty to warn viewers of the content (content warnings were added to the show a year after its release) and it failed to do so, making it indirectly liable for this death.

Netflix is now trying to get this lawsuit dismissed using California's anti-SLAPP law because, as it argues persuasively, this is all about protected speech, no matter how the plaintiffs try to portray it as a consumer protection issue. (h/t Reason)

Netflix's anti-SLAPP motion [PDF] points out this isn't the first time teen suicide has been depicted in pop culture, nor is it the first time people have tried to sue creators over the content of their creations. None of those lawsuits have been successful.

13 Reasons Why is not the first work to tell a story about teen suicide. The subject has been explored in countless literary works, motion pictures, songs, and TV shows—everything from Romeo and Juliet to Dead Poets Society. And this is not the first lawsuit that has claimed that the media’s depiction of suicide and violence is to blame, and should be held legally liable, for real-life suicides and other tragic events. Courts, however, have repeatedly rejected such suits.

Since this lawsuit directly implicates creative expression, Netflix says California's anti-SLAPP law applies.

Without question, 13 Reasons Why is protected expression under the First Amendment. And the FAC itself, which is replete with citations to articles about 13 Reasons Why and its subject matter, makes plain that 13 Reasons Why’s speech is in “connection with a public issue.” Plaintiffs try to sidestep the anti-SLAPP statute and the First Amendment by insisting that their claims are not based on the content of 13 Reasons Why, but on an alleged “failure to warn” or breach of a purported duty to protect “vulnerable populations” from the content. But without the allegations that the show’s content is “dangerous,” Plaintiffs’ theories fall apart. Not only do those theories strike at the free expression embodied in the show, they target Netflix’s conduct “in furtherance” of the distribution of the show, and therefore bring this lawsuit squarely within the ambit of the anti-SLAPP statute.

Not only is the content of the series protected expression, but so is the algorithm that possibly recommended the show to the teen. The plaintiffs' "failure to protect" theory argues that Netflix's algorithm is itself reckless and dangerous, given that it prompts users to select titles that may contain disturbing subject matter. But whether or not a human is performing the recommendation makes no difference. It's a form of editorial control which is protected under the First Amendment.

The recommendations system, and the display of suggested titles, is speech. It evinces “[a]n intent to convey a particularized message,” Spence v. Washington, 418 U.S. 405, 410–11 (1974)—namely, a message about what shows and movies a viewer might choose from to watch. The recommendations fall within the well-recognized right to exercise “editorial control and judgment.” Miami Herald Pub. Co. Tornillo, 418 U.S. 241, 258 (1974). Plaintiffs allege that the recommendations here are different because they are dictated by an algorithm. But the fact that the recommendations “may be produced algorithmically” makes no difference to the analysis.

[...]

The suggestion that a viewer watch a particular show falls within the broad scope of conduct in furtherance of the right to free speech. The subject of the recommendation—13 Reasons Why—is itself protected speech, and the recommendations facilitate Netflix’s protected distribution and dissemination of that speech.

The plaintiffs' claims can't be separated from the undeniable fact that the allegations are all about creative expression, which is exactly why the state's anti-SLAPP law should apply.

Finally, like Plaintiffs’ failure-to-warn theory, Plaintiffs’ recommendation theory cannot be disentangled from Plaintiffs’ allegation that the underlying content is “dangerous”: the entire premise of the claim is that Netflix had a duty to identify which viewers are “vulnerable,” and ensure that the algorithm does not recommend 13 Reasons Why (or other content Plaintiffs deem unsuitable) to such viewers.

If, as the plaintiffs argue, creators and producers of disturbing content can be held directly liable for the actions of viewers, the end result would be self-censorship and a dearth of options for creators to distribute their creations. Suicide has been the subject matter of countless creative efforts for hundreds of years. A lack of content warnings ahead of viewing doesn't make a viewer's death Netflix's fault. Viewers have control over what they watch and, given the vast amounts of information contained on the internet about movies and TV series, there's little reason to believe viewers have to go into any show "blind."

As tragic as this situation is, the blame (if there even is any) doesn't lie with Netflix. Netflix is no more responsible for this death as the creators of the series or the writer of the novel that inspired it.

Filed Under: 13 reasons why, 1st amendment, anti-slapp, blame, california, liability, protected speech, suicide
Companies: netflix

Unsealed Documents In Nunes' Family Farm's Lawsuit Against Ryan Lizza Raise More Questions About The Lawsuit Than They Answer

from the you-did-what-now? dept

The saga of Devin Nunes' family's lawsuit against reporter Ryan Lizza and Esquire Magazine got even more bizarre last week. Back in June, we had written about some heavily redacted documents in the case that suggested that Nunes' lawyer, Steven Biss, was playing some very dangerous games in order to try to keep the employees of the NuStar Farms (owned by Nunes' relatives) from testifying as to their immigration status. As you may recall, the only part of the lawsuit that was still going on were defamation claims regarding the implication that the farm might employ undocumented workers, which would be noteworthy, considering Devin Nunes hardline stance on immigration.

As we covered back in June, after first making it difficult to set up a deposition with the employees, when that deposition finally occurred, the lawyer for the employee recommended he take the 5th, at which point Biss (who was not representing the employee) paused the deposition for quite some time, before insisting that the employee would not take the 5th. From the filing:

Defendants noticed the depositions of six of Plaintiffs’ current employees and had them served with subpoenas duces tecum that required them to bring identification to their depositions. Plaintiffs’ counsel, Steven S. Biss, accepted service of the subpoenas on behalf of the employees, but Plaintiffs arranged for separate counsel, Justin Allen, to represent the deponents. F.S.D. was the first such witness to be deposed on May 12, 2021.

While Defendants’ counsel was questioning F.S.D. about his purported signature on various documents, Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document. [F.S.D.] --- ” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Mr. Biss then interrupted stating, “Hold on. Hold on. Can we go off the record for just a minute? I’d like to talk to Justin before we do this.” (Id. (Dep. p. 72).) In fact, the deposition was delayed for much more than just a minute. More than two hours later, the deposition resumed. When Defendants’ counsel attempted to make record, Mr. Biss interrupted him several times insisting that Mr. Allen would make a statement and the deposition would be rescheduled. Once Mr. Biss got his way, Mr. Allen stated,

I am not going to allow [F.S.D.] to answer that question because when we left it I advised him to invoke his Fifth Amendment right. We took a break. We went off the record, and we’ve had several conversations with lots of people and I’ve talked to [F.S.D.], and as of now I am no longer representing him. I am not his lawyer.

(Id. at 21 (Dep. pp. 74-75).) The depositions were then halted. At the hearing, Mr. Biss stated that a new lawyer had been retained to represent the employee witnesses at their depositions, but he could only identify the new attorney by her first name, Jennifer. Mr. Biss was ordered to provide her name to opposing counsel and the Court. To date, I have not received that information.

Still, much of the information remained redacted. Law professor Eugene Volokh filed a brief asking the court to unseal some of the documents in the case, and late last week the court agreed. So now we get to see a lot more, and as Elizabeth Dye at Above the Law points out, the new details show that this lawsuit "is even grosser than expected."

The newly unredacted documents highlight the evidence Hearst has found, through the discovery process that at the very least strongly calls into question the immigration status of employees of NuStar Farms. Considering that's the only issue left in the case, it seems quite incredible that the farm and Nunes' family would continue to push this lawsuit -- though, as other recent filings have shown, it's unclear how much Nunes' family actually knows about the lawsuit that was filed in their name. A failed deposition redaction notes that family members admitted to not knowing who was paying for the lawsuit, and that they weren't looking for any money in return (even though the lawsuit requests $25 million).

According to the filing:

In addition, Plaintiffs’ apparent lack of investment in prosecuting their own lawsuit was buttressed by their deposition testimony admitting they have not incurred out-of-pocket payments to counsel, with the exception paying $500 to former local counsel Joe Feller, and their document production of financial records indicating the same lack of payments to counsel for costs or fees, save the payment to Feller. Consider further that Plaintiff Anthony Nunes III, testifying as the 30(b)(6) corporate representative of NuStar, answered the question “[W]ho is funding the lawyers for this lawsuit?” with “I have no idea.” NuStar 30(b)(6) Anthony Nunes III Dep. 400:8-10.

Also, this:

Plaintiffs have had little involvement in the prosecution of their own case. See NuStar 30(b)(6) Corporate Rep. Tr. at 10:9-15:18 (corporate representative testifying that he never saw the 30(b)(6) topics and did not prepare); Lori Nunes Tr. at 185:3-22 (testifying that she did not review SSA records ordered to be produced to Plaintiffs); Anthony Nunes, III Tr. at 303:8- 308:11 (same); Anthony Nunes, Jr. Tr. at 97:13-100:15 (same); Lori Nunes Tr. at 117:23-124:9 (testifying that she did not know where information in interrogatory response came from but suspecting it came from counsel); see also Toni Dian Nunes Tr. at 86:10-89:17, 112:25-116:6 (testifying that she never saw subpoena directed to her and accepted by Plaintiffs’ counsel and that some records produced in response were not actually hers).

And yet the case pushes forward on the issue of the immigration status of the employees of the farm, and the formerly redacted, but now unsealed, bits of Esquire's filing are incredibly eye opening and would make most people question why this lawsuit is being fought in the first place. From the now unsealed filing:

To defend against those allegations, Defendants obtained in discovery from NuStar records concerning its hiring of workers. These include (i) USCIS Forms I-9 and accompanying employee identification cards for most current and former employees, and (ii) two "No-Match letters issued to NuStar by the U.S. Social Security Administration ("SSA")... Defendants also obtained from the SSA, pursuant to this Court's order... a chart indicating whether or not the Social Security Numbers ("SSNs") that the workers provided to NuStar matched the SSA's records...

Those documents demonstrate that the six subpoenaed NuStar employees—who were employed by NuStar before, during, and after the article was published, according to NuStar's verified response to Interrogatory No. 1, could have criminal exposure under 8 U.S.C. §1324c, and that their testimony may incriminate them. What follows is a small sampling of the reasons.

First, the SSA responded that the Social Security numbers reported by NuStar as associated with each of the subpoenaed employees does not match the SSA's records.... This authoritative, self-authenticating document from the United States Government confirms that the SSA has no record of having issued to these workers the SSNs that NuStar recorded at the time of hire.

Second—and consistent with this—NuStar received letters from the SSA in 2019 (for tax year 2018) and 2020 (for tax year 2019) notifying them that the majority of SSNs provided on their employees’ Forms W-2 did not match the government’s records. That is, in 2018, 20 out of 27 employees came back as a “no match,” and in 2019, 14 of 19 came back as a “no match.”... Those letters stated that NuStar could use a free online portal to learn which employees’ numbers did not match, and to thereafter follow up with the respective employees to correct the errors on the W-2 forms.... This is important if the employees are here legally, as otherwise the SSA will not be able to accurately account for their Social Security benefits. Tellingly, Plaintiffs did not produce any documents indicating they had done so.

Third, the Forms I-9, social security cards, and identification documents are, in many instances, insufficient and/or fraudulent on their face. This was on stark display in the (yet-completed) deposition of [REDACTED], the first NuStar employee to testify.

As AboveTheLaw notes correctly, having a No Match letter does not mean that an employee is an undocumented immigrant. But, it certainly raises some questions about their documentation. And, if the Nunes family's main concern about the Lizza article was it suggesting the farm might have employed undocumented workers (which, to be clear, the article never actually says -- it merely highlights how the industry relies on undocumented workers, and it is quite common for such undocumented workers to be employed on farms around the Nunes' farm), perhaps the dumbest move Nunes and family could make is to sue for defamation over those very claims. Because unlike an old Esquire article that doesn't actually accuse the farm of hiring such workers, now (1) it's definitely in the news again, and (2) there's more evidence coming, and what's been shown so far does not look good at all.

Indeed, the filing goes even deeper in raising serious questions about the documentation status of NuStar's employees.

On his I-9, bearing a date in 2007, [REDACTED] stated that he was a United States citizen.... However, before his attorney (from the Brown Winick firm in Des Moines, who met his client for the first time that day) advised him to invoke his Fifth Amendment right, [REDACTED] testified that he was not a United States citizen and, instead, was and is a legal permanent resident holding a government-issued green card.... This, of course, suggests [REDACTED] made a false statement under penalty of perjury on his Form I-9.

Moreover, Section 2 of the Form I-9 is not filled out by the employer, and the signature on the Form I-9 does not appear to match the signature on the produced 2017 Form W-4 for [REDACTED] .... This raises questions as to how [REDACTED], who does not read English, was able to complete the form without assistance, and whether someone at NuStar completed it for him without disclosing that fact as required on the form itself. These are questions Defendants’ counsel intended to explore, until [REDACTED] counsel from the Brown Winick firm instructed his client to assert his Fifth Amendment right....

Most significantly: The resident alien card that [REDACTED] proffered to NuStar in order to gain employment is, on its face, fraudulent. [REDACTED] proffered card states that his class of admission to the United States is “W16.” ... “W16” is limited to persons who entered the United States without inspection prior to January 1, 1982, and were subsequently granted legal permanent resident status. See Dep’t of Homeland Security, Immigrant Classes of Admission, https://www.dhs.gov/immigration-statistics/lawful-permanent-residents/ImmigrantCOA (last visited May 15, 2021); ... However, date of birth, as stated on his proffered card and as he testified, is [REDACTED].... It is impossible for [REDACTED] to have been granted permanent resident status under the W16 class of admission, as he was born almost three years after the cut off for that class.

If the entire case hinges entirely on whether or not Lizza had no basis to believe that the farm employed undocumented workers, this is... probably not the way to make that case.

Also unsealed was Steven Biss's response to this filing, claiming that none of the above matters:

The fact that the social security numbers reported by NuStar did not match the SSA’s records is irrelevant. Inclusion of a worker’s name on a no- match letter makes no statement about the worker’s immigration status. Mismatches can result from a variety of reasons, including typographical errors (misspellings), clerical errors, mis-transposition of a number, an incomplete W-4, mistakes by the SSA, name changes, fraud/identity theft.

There's also a lot of table pounding about how (1) the article is false and quotes were "fabricated" by Lizza, (2) that none of the documents suggest the employees are undocumented or face criminal exposure, (3) that the only "misconduct" was from Lizza and Hearst, and (4) all of this is intended to "harass" the plaintiffs. You can read the filing for yourself at the link above or embedded below, but to me they are wholly unconvincing. The filing also insists that (1) Biss and NuStar are not pressuring its employees to not take the 5th, and also that (2) they "will not assert the Fifth Amendment or refuse to answer any questions." That seems quite odd given that the one transcript that has been released certainly showed the then lawyer of the employee suggesting the employee assert his 5th Amendment rights.

Esquire and Lizza then responded with the now unsealed document suggesting that the court really ought to appoint "competent, independent counsel" to represent the employees of NuStar farms.

Eventually the court mostly sided with Hearst and Lizza, noting that there was no harassment here:

During the deposition, Defendants’ counsel was asking questions about documents such as a bond F.S.D. had posted and a traffic ticket he had received that bore his signature. Mr. Biss made a lengthy speaking objection claiming this was harassment.... Here, where the identity and immigration status of the employees is a central issue, it is not harassing or irrelevant to ask questions about such documents. In the context of this case, it is not conducive to obtaining truthful answers from an employee such as F.S.D. to have his employer’s lawyer making lengthy, animated objections to those questions

Similarly, the magistrate judge seemed at least somewhat concerned about Biss's actions:

The most puzzling and troubling aspect of Mr. Biss’s explanation, however, is the representation that he “sought a sidebar with counsel for the witness to determine whether the witness wanted to take the Fifth Amendment.” (Doc. 107 at 10.) This two-hour “sidebar” occurred immediately after Mr. Allen stated, “I’ve advised my client to invoke his Fifth Amendment right regarding questions about this document.” (Doc. 103-8 at 20 (Dep. pp. 71-72).) Normally, one would expect the lawyer for a deponent to be in the best position to ascertain whether the deponent desires to assert a privilege. There is no record of the sidebar, only Mr. Biss’s protestations that the employees are not being pressured regarding their rights under the Fifth Amendment. Mr. Biss makes bald assurances that the employees want to answer all questions and not assert their Fifth Amendment rights. Nevertheless, Mr. Biss’s behavior—coupled with the facts that (a) the privilege was raised, (b) the privilege was perhaps withdrawn after a lengthy sidebar, and (c) Mr. Allen was fired—gives me little confidence that F.S.D. could make a knowing waiver of his Fifth Amendment rights under these circumstances.

The court, however, initially declined to appoint a lawyer for the employees, because Biss insisted that one had already been found for them, though he could not name her beyond "Jennifer." The hearing transcript is quite incredible on this:

THE COURT: However, I understand that in this circumstance, that Mr. Biss, or perhaps it's the Nuneses, have arranged to have another lawyer or lawyers appear on behalf of these witnesses. Is that the case, Mr. Biss?

MR. BISS: Yes, sir, it is.

THE COURT: All right. Who is it that you've arranged to have appear?

MR. BISS: I know her name is Jennifer. I don't know her full name, but I was involved in engaging her; but NuStar engaged her, so she -- and she is available.

THE COURT: What do you mean that she is available? For us to talk to now or just available for any of these depositions?

MR. BISS: She's available for the depositions, whenever they are scheduled.

THE COURT: Okay. I'd like you to figure out who that person is and notify the Court and notify opposing counsel of that today. I know you expressed some concern that whoever would be designated to represent these defendants would be -- I don't know if you used the word "harassed," but I don't -- encouraged to assert their Fifth Amendment rights, and I don't think there's -- I'm not worried about Iowa lawyers who are admitted to the bar being able to vigorously assert their clients' rights. I think if I were in Jennifer's position and someone who knew a lot more about the underlying case -- whether it was you, Mr. Biss, or someone from the defendants who knew more about the underlying documents and the potential jeopardy my clients might face -- was calling me to talk to me about that, I'm not sure I would consider that harassment. It might be somewhat welcome so that I can accurately -- I mean, effectively defend my clients in their depositions. So that's not a worry that I have.

Again, all of this is not how these things normally work, and it remains somewhat bizarre that Nunes' family is still moving forward with this case.

It's unclear what happened with "Jennifer" but a few weeks later, in early July, the court reversed course and appointed counsel to the employees:

On June 17, 2021, I entered an order declining to appoint counsel for six of Plaintiffs employees who are witnesses. Because of the distinct possibility that these witnesses may not comprehend the jeopardy they may face and because they may not be able to afford counsel, I conclude it is necessary to appoint counsel from the CJA panel for the witnesses. Therefore, I appoint John P. Greer of Greer Law Office in Spencer, Iowa to represent the employee witnesses. The prior order at 119 remains unmodified in all other respects. This Order appointing counsel is subject to Plaintiffs employees satisfying the Court of their qualifications for court-appointed counsel under 18 U.S.C. Section 3006A.

This case is certainly quite messy, but it remains difficult to see any way in which this case makes sense for the Nunes' family beyond as a harassment technique itself. It continues to retain all the hallmarks of a SLAPP suit, and serves as a strong reminder that Iowa needs an anti-SLAPP law and we need a federal anti-SLAPP law to go with it as well.

Filed Under: anti-slapp, defamation, devin nunes, immigration, immigration status, ryan lizza, slapp, steven biss
Companies: hearst, nustar

Devin Nunes Loses Again, But He's Still Suing The Satirical Cow Who Mocked Him

from the and-so-it-goes dept

As you likely know by now, a little over two years ago, Devin Nunes kicked off his SLAPPy litigiousness by suing the satirical internet cow with about 1,200 followers at the time of the lawsuit (it now has over 770,000). What got a bit less attention was that the satirical cow was only one of the four parties sued. There was also another satirical account pretending to be Nunes' mother, and then there was Twitter and a political consultant named Liz Mair (who he actually sued another time as well -- in a case that was also dismissed, though Nunes is appealing).

Mair has written about what an attack on free speech this is, and spoke with us last year about what a nuisance it is to be sued. Last summer, the judge dismissed Twitter from the lawsuit and now he's finally dismissed Mair as well (as first reported in the Fresno Bee, whose parent company Nunes has also sued).

The ruling is pretty short and sweet, as apparently this is just the paper version of what he ruled from the bench last month. But, more or less, the case fails for the exact reason everyone who knows anything about defamation predicted: the complaint doesn't show anything Mair stated was even remotely defamatory, and there's nothing showing actual malice, which is necessary if a public figure is claiming to be defamed.

For the reasons stated on the record at the July 2, 2021 hearing, the Court concludes that the Complaint fails to adequately allege defamation per se against Mair as a matter of law. Specifically, the defamation per se claim alleged against Mair fails for the following independent reasons: (1) the Complaint fails to plead with sufficient context the “exact words” of the statements. alleged to be defamatory; (2) the statements alleged to have been made by Mair are not defamatory as a matter of law; and (3) the facts alleged fail to support a reasonable inference that Mair made any of the alleged statements with the requisite intent of “actual malice.”

And therefore (finally) the complaint against Mair is dismissed with prejudice.

So... Twitter's out of the case. Mair is out of the case. All that's left are the two satirical accounts. And that's apparently going nowhere because Nunes' lawyer, Steven Biss -- despite using some extremely questionable methods has apparently been unable to figure out how to identify and serve the satirical accounts.

This actually puts Nunes into something of a quandary. He apparently can't appeal this latest ruling in favor of Mair unless he gives up trying to sue the satirical accounts. So, now Nunes will have to decide which is more important -- appealing the Mair decision, or hanging on and hoping he can somehow find the cow. As Mair told the Fresno Bee, this whole situation puts her (and the cow) in perpetual limbo:

“He may yet appeal,” Mair said of the decision to dismiss her from the Twitter lawsuit in Henrico County, for which the congressman sought $250 million from her, “though as I understand it, that process could occur years or even decades from now given the inability of Rep. Nunes to ‘unmask’ the cow and the mom in that case, and the possibility that the case never reaches a resolution whether through court action, settlement or dismissal of the cow and the mom from the suit.”

Perhaps more importantly, Mair explains how absolutely fucking ridiculous it is that a sitting Congressional Representative is regularly abusing the courts to silence and intimidate people for reporting on him and making fun of him:

“It is ridiculous that we have had a sitting United States congressman suing a fake farmyard animal, let alone me, for being mean to him on Twitter, which the First Amendment clearly protects,” Mair said. “It is also extremely disturbing that Rep. Nunes has, on my read, appeared to use litigation as a cudgel to try to stifle free speech in such a wanton manner.”

Separately, since the question of how the hell Nunes is funding all these cases has been raised a bunch (a complaint from the Campaign Legal Center says that it's against House rules to receive free legal services without a Legal Expense Fund), that issue may actually get some attention in a different case.

On Monday, in the case that Nunes' relatives have filed against reporter Ryan Lizza and Esquire Magazine (Nunes also sued, but that was thrown out), the defendants asked the court to force Nunes' family to reveal who is funding that lawsuit.

Through this Motion to Compel, Defendants Ryan Lizza (“Lizza”) and Hearst Magazine Media, Inc. (“collectively, “Defendants”), seek an order requiring Plaintiffs NuStar Farms, LLC, Anthony Nunes, Jr., and Anthony Nunes, III (together, “Plaintiffs”) and their attorneys to disclose responsive information and documents regarding their source of funding for this lawsuit and the material terms of their third-party litigation funding arrangement(s). This information goes directly to a dispositive issue in the case and is relevant to other issues as well; Plaintiffs cannot meet their burden to resist providing the information, which imposes no burden to produce.

While it might initially seem like a stretch to have to disclose this during discovery, as Esquire's lawyers argue in their supporting brief, it's actually quite important in this case:

This information goes to the heart of a potentially dispositive issue in this case—whether Plaintiffs should be deemed public figures by virtue of their relationship to the Congressman and their coordination in pursuing this lawsuit as part of his policy to sue media entities....

It's unclear if the judge will agree with this (and apparently he's already suggested that he's skeptical of this argument). Separately, even if they are compelled to hand over that information, that doesn't mean it will ever become public. But it still is worth paying attention to.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, slapp, steven biss, vexatious lawsuits, virginia

Devin Nunes' Lawyer, Steven Biss, Finally Gets Sanctioned In Wacky Defamation Case

from the pay-up dept

Back in April, we wrote about how Steven Biss, who has become infamous for his flurry of frivolous defamation lawsuits -- many of which are on behalf of Congressional Representative Devin Nunes as well as an odd collection of wacky people in Nunes' orbit -- had lost yet another case, but that the court had rejected sanctioning Biss. That didn't last long. That ruling was in the 4th Circuit appeals court in the case Biss brought on behalf of Russian-born academic Svetlana Lokhova against a Cambridge academic, Stefan Halper, and a variety of media organizations. I'm not going to recount all the details of the case again. You can read those in our original post. Just know that it seemed to be a pretty obvious SLAPP suit. Much of it was filed after the statute of limitations had passed, on statements that were clearly not defamatory, and, in at least one case, appearing to sue the wrong party. However, the District Court judge and the Appeals Court both found that while Biss had a long history of bad behavior in court, they didn't want to take the further step of sanctioning him. Yet. Though both courts made it clear that further shenanigans could change that.

I will give you just one guess what happened next. And I'm sure you'll get it right.

I had somehow missed that while Biss/Lokhova were getting benchslapped in that case, they had decided it would be a good idea to file another frivolous SLAPP suit against Halper. This case involved claims that Halper had somehow defamed Lokhova (again) and tortiously interfered with her publishing contract, regarding a book she was publishing all about Steven Halper (which Halper insists itself is defamatory towards him). Halper had sent a letter to the publisher and distributor of the book arguing that Lokhova's book was defamatory, and then Biss/Lokhova sued Halper again. They failed to mention that they had already sued Halper, and that the cases were related, which probably didn't make the court very happy in the first place.

Judge Leonie Brinkema seems to have had enough. Recognizing that her original lenient order not to issue sanctions in the last case was ineffective, she has finally recognized that Biss seems unwilling to back down. So she has now order both Biss and Lokhova to pay Halper's legal fees in this case.

In the May 5, 2021 hearing on defendant's Motion for Sanctions, the Court found that Halper's counsel's letters were protected by absolute litigation privilege, making the filing of the pending lawsuit by Lokhova and Biss frivolous and without merit.

It goes on, dismantling each and every argument by Biss, and also notes that much of the argument seems to be an attempt to relitigate the other case that they had already lost:

The rest of plaintiff's arguments in her opposition to the Motion for Sanctions amounted to another defamatory attack on Halper and attempts to relitigate Lokhova I, including her attachment of redacted FBI papers purportedly showing Halper lying to the FBI....

The judge then recites a very long list of examples of bad behavior in court, including admonishment and sanctions by other judges.

Bis also has an extensive history of being admonished and sanctioned by courts around the country. In this district, Biss was warned not to engage in ad hominem attacks. Steele v. Goodman.... Another judge admonished Biss for conduct unbefitting an officer of the Court. Nunes v. WP Co. LLC.... Biss was sanction and required to pay the opposing party's attorneys' fees under Rule 11 for making "objections contrary to settled law":

Counsel for Plaintiff's objections contrary to settled law are particularly troubling given this Court's previous admonishment, in its May 29, 2020 Memorandum Opinion, that Mr. Biss "ensure that all positions, including those in briefing and in support of discovery, 'are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law' . . . [f]ailure to do so could result in sanctions."

Anderson v. Sch. Bd. of Gloucester Cty..... In dismissing a RICO suit for its "conclusory allegations," yet another judge in the Eastern District of Virginia admonished Biss that any amended complaints must comply with Fed. R. Civ. P. 11. Nunes v. Fusion GPS.... Biss has also been sanction in other districts, including in an Iowa federal district court, where the judge described Biss's personal attacks in a complaint as "immaterial, impertinent, and scandalous," with "no bearing on this case," and "prejudicial to [defendant]" with "criminal overtones," Nunes v. Lizza.... and by a district judge in the Southern District of Florida who imposed sanctions on Biss under the Florida anti-SLAPP statute because his lawsuit "was without merit" and arose out of free speech in connection with a public issue. Bongino v. Daily Beast Co. LLC.... Recently, Biss was sanctioned in the District of Maryland and required to pay defendant $21,437.50 to reimburse it for its attorneys' fees after Biss filed a meritless amended complaint. Harvey v. Cable News Network Inc....

It's probably not a good sign when the judge lists off all the times you've been sanctioned. Especially after warning you to tread lightly in an earlier, related case. So the following does not come as a surprise at the end of the ruling:

Considering Biss's experience as an attorney, long history of sanctionable conduct, this Court's specific warnings in Lokhova I that further frivolous actions against Halper could result in sanctions, the Fourth Circuit's comment about joining the chorus of other courts that have sanctioned Biss, defendant placing Biss on explicit Fed. R. Civ. P. 11 warning, and the frivolousness of this complaint, the Court infers an improper purpose for bringing this civil action. Accordingly, sanctions in the form of dismissal of the complaint are not sufficient to deter Biss from continued improper litigation practices, and an award of defendant's reasonable attorneys' fees for work done in this civil action after defense counsel issued his Rule 11 letter is appropriate. In the words of the Fourth Circuit, this Court has "join[ed] the chorus in sanctioning attorney Biss."....

The judge even highlights Biss' claim that the attorney's fees amount that Halper's lawyers asked for was too high, first noting that what they asked for is actually below the range established in earlier cases, and pointing out that Biss arguing that they don't have experience in this type of litigation is "meritless."

Also, this:

Plaintiff and her counsel also argue that the number of hours defense counsel spent on this civil action was inappropriate because this civil action involved a simple, "not difficult or complex" application of the litigation privilege. That characterization of hte issue is contradicted by the multiple arguments plaintiff raised in her 15-page opposition to defendant's Motion for Sanctions.

Basically, don't file crazy long and complex arguments only to then turn around and insist that the defendant's lawyers spent too much time having to deal with your arguments. The Court then decides that the sanctions should be for Biss and Lokhova to be jointly responsible for paying $33,875 in legal fees. Frankly, this seems low. And even though the Court says it chose this number to "deter further frivolous lawsuits," I'm not convinced that will work (see the list of sanctions earlier...). At some point, some court is going to need to go even further.

It's also interesting to see the Court make both Biss and Lokhova jointly responsible for the sanctions:

Lokhova obviously chose Biss to represent her in Lokhova I, must have been aware of the rhetoric he used in that complaint, and was in court when this Court admonished Biss, yet chose to retain Biss and authorize him to file this groundless new lawsuit. She is, therefore, also properly subject to this sanction.

It would be nice to see Biss finally stop filing frivolous lawsuits, but previous sanctions haven't seemed to help. And, of course underlying all of this, there's still the open question of who is paying Biss' fees in all of these lawsuits. That remains unanswered.

Filed Under: anti-slapp, defamation, devin nunes, sanctions, slapp, stefan halper, steven biss, svetlana lokhova, vexatious lawsuits

Former Trump Spokesman Ordered To Pay $42,000 To Gizmodo After Losing His Bogus Defamation Lawsuit

from the windmill-jousting-a-surprisingly-expensive-sport dept

A former Trump spokesman has reached the end of his always-doomed attempt to sue an online publication for reporting on the content of court documents. And it's going to cost him about $42,000 in legal fees.

Jason Miller was understandably disturbed when the now-defunct Splinter (owned by Gizmodo) wrote about allegations made by another Trump campaign staffer, A.J. Delgado. These allegations were made public during unrelated court proceedings. And they're pretty disturbing.

On Friday, September 14, 2018, Ms. Delgado filed a supplement to an earlier motion for the court to consider a psychological evaluation of Mr. Miller. Essentially, the supplement stated that Ms. Delgado was informed in the summer of 2018 that Mr. Miller (while married) had an affair in 2012 with a stripper in Florida referred to as Jane Doe; that Mr. Miller had sexual intercourse with Ms. Doe; that Ms. Doe became pregnant; that Mr. Miller visited Ms. Doe and gave her a beverage which, unbeknownst to her, contained an abortion pill; that Ms. Doe wound up in a hospital emergency room, bleeding heavily, and almost went into a coma; that the pill induced an abortion; and that Ms. Doe’s unborn child died. The supplement identified Ms. Delgado’s initial source for this information and stated that Ms. Doe had later confirmed the story to a journalist.

Splinter reported on these allegations, linking to the filed document. The supplement was later sealed, but that move couldn't undo the reporting. Neither could Miller's litigation.

He was first rejected at the district level. The court cited New York state law (where Splinter was located) as protecting journalists from being sued for reporting on allegations made in court filings. Furthermore, it pointed to Splinter's posting of the filing itself as being instrumental to its fair reporting defense. ALWAYS POST DOCUMENTS, folks.

Miller's appeal went no better. The Eleventh Circuit Court of Appeals agreed with the lower court's filings, both in terms of the First Amendment and New York state law. Anyone reading the filing posted by Splinter was free to draw their own conclusions from the sworn statements. A post-publication sealing by the court doesn't suddenly make the contents of the documents privileged or any legitimate basis for a defamation lawsuit.

With the appeal going in favor of Splinter, the case has returned to the Florida court. And the lower court says [PDF] Miller is on the hook for legal fees.

Judgment in the amount of $41,868.23, reflecting costs incurred by Defendants at both the district court and appellate court levels, is entered against Plaintiff in accordance with the terms of the Stipulation.

That expense will be in addition to whatever Miller paid to engage in the fruitless litigation. If it's said in court and made publicly available by the clerk -- even temporarily -- it's fair game for reporting.

Filed Under: anti-slapp, attorneys fees, defamation, fair reporting privilege, jason miller, reporting, slapp
Companies: gizmodo, splinter