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

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 oftwo distinct entities-a person" and an enterprise" that was not simply the person referred to bya different name-for the purpose of pleading the RICO claims because the purported enterpriseconsisted only of related (not distinct) corporate entities and miscellaneous unidentifiedindividuals or entities.... (We do not quarrel with the basic principle that to establish liabilityunder 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-partyengineers, search engine optimizers, and digital sales marketing consultants (identified above).".... Alphabet, Inc. is Defendant's parent company, YouTube is a video-sharing platformthat Defendant owns and operates, and Plaintiff has pled no allegations to show that the unnamedCEOs 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 allegedfacts showing that Defendant, Alphabet, Inc., YouTube, and their officers, agents, or employeesare separate entities for RICO purposes, rather than a single person." ... Thus, Plaintiff has not demonstrated that these entities and individuals on their owncould form a RICO enterprise. Plaintiff does not argue otherwise.

As to the outside third-party engineers, search engine optimizers, and digital salesmarketing consultants," Plaintiff identifies those entities as Godaddy.com, Bernstein-Rein(b-r.com) and Ucodice.com." ... But Plaintiff has not pledconcrete, non-conclusory facts to support a plausible inference that each of these outside entitiesknew about and shared a fraudulent or otherwise criminal common purpose with the purportedRICO 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 conductamong the enterprise's alleged participants" and affirming the dismissal of a RICO claim wherethe plaintiff failed to plead concrete facts plausibly supporting an inference that the purportedenterprise'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 sharedDefendant's common purpose to misrepresent its corporate philosophy and business model, toinduce Plaintiff to modify its website and business practices, and to discriminate against politicalconservatives and their businesses. ... Plaintiff has failed to identify any specific actions taken by any particular outside entity. Moreover, the outside entities' conduct thatis alleged at a high level of generality-providing information about how to improve websitesearch 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 RICOenterprise with Defendant, Plaintiff has not plausibly alleged that the outside entities were part ofthe enterprise because the allegations do not support an inference that the outside entities sharedthe 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 ofRule 9(b). Plaintiff alleges that Defendant engaged in fraud by inducing Plaintiff to make costlymodifications to its website to improve search results, when such modifications would not in factimprove the website's search results. ... Plaintiff makes onlygeneralized allegations that Defendant communicated with Plaintiff between 2016 and 2018 inemails, blogs, and online chats.... At minimum, Plaintiff has not identified theprecise statements that Defendant made to Plaintiff or the dates on which the statements weremade.3 Plaintiff has provided no explanation for why it is unable to plead with the specificity thatRule 9(b) requires when the communications at issue were with Plaintiff itself. Plaintiff's pleadingof 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 behavedfraudulently by failing to disclose certain information to Plaintiff. Specifically, Plaintiff allegesthat Defendant failed to disclose that it is biased against political conservatives and that, due tothat bias, Defendant would ensure that no modifications Plaintiff could make to its website wouldimprove 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 basedon omissions, it is unnecessary to show a duty to disclose for any of the claims. Rather, Plaintiffargues 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 ofopportunity to discover the truth, (b) Google's superior bargaining power and Lincoln'sdependence on Google for advice, counsel and protection regarding Search, and (c) because of therelation 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, afiduciary relationship arose between Google and Lincoln.").

Possession of superior knowledge alone does not create a duty to disclose under Floridalaw. Cordell Consultant, Inc. Money Purchase Plan & Tr. v. Abbott, No. 11-80416-CIV, 2012WL 13148744, at *3 (S.D. Fla. July 11, 2012) (stating that a duty to disclose between parties to anarms' length transaction based on exclusive and superior knowledge does not exist in the absenceof a fiduciary or other special or confidential relationship of trust because there is no duty imposedon 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 tocorrect these deficiencies, which would undoubtedly lead to Defendant filing a fourth Motion toDismiss, 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.