Devin Nunes' Lawyer Facing Sanctions, While Nunes Himself May Have To Pay His Opponents' Legal Bills

It's been over a year since Devin Nunes kicked off his vexatious campaign to sue various critics. As you probably are aware, in that year he's sued news organizations, journalists, political operatives, critics, and, most famously, a satirical internet cow.

Most (though not all) of those lawsuits have been filed in Virginia which has a notoriously weak anti-SLAPP law. He's also filed a lawsuit in Iowa, which has no anti-SLAPP law. He briefly filed one case in California -- which does have an anti-SLAPP law -- but (1) he had his campaign file it rather than himself personally, and then (2) quickly dropped it.

The barrage of frivolous, censorial SLAPP suits in Virginia, though, inspired lawmakers there to pass a good anti-SLAPP law, though the two legislative houses were unable to come to an agreement on a consensus version of the law before their brief 2020 legislative session came to an end, though they promised to take it up again in 2021.

What's interesting is that in a new article about what happened with the law in the Roanoke Times, it's explained that once the law does hopefully pass next year, it may apply back to Nunes' series of vexatious lawsuits -- meaning he might be on the hook for the legal bills of everyone he sued. Normally, laws cannot apply retroactively, but as the article notes, this wouldn't be about making something illegal retroactively, but rather about making a procedural change to how cases play out, meaning it could apply retroactively:

Because the change in law would be procedural rather than substantive, Nunes' defendants may be able to seek early dismissals and attorneys fees even though his lawsuits were filed before the law was enacted, Edwards said. Those fees could be substantial.

Notably, the article states that while the two legislative houses were debating the specifics, one thing they did agree on was making the attorneys' fees aspect for SLAPP filers mandatory, rather than leaving it to the discretion of the judges.

One part they managed to work out was whether judges would have the option of awarding attorneys fees and court costs to defendants who won motions for early dismissals in a SLAPP suit. The way both measures ended up, judges would be required to award those fees and costs.

And, it might not just be Nunes who's in deep, deep trouble. His lawyer has been the mastermind between not just Nunes' lawsuits, but also a bunch of somewhat interrelated cases from a group of people who all seem somewhat connected. NPR has asked for sanctions against him, and in another case the judge scolded Biss, but chose not to sanction him yet.

However, a new Fresno Bee article (one of the many news orgs targeted by Biss SLAPP suits), notes that judges are increasingly catching on to Biss's SLAPP tactics and he may very well face real sanctions before long:

In dismissing the case for the Russian graduate student in February, Judge Leonie Brinkema of the U.S. District Court in the Eastern District of Virginia warned Biss against filing further inappropriate pleadings."

That was the same month the judge in the Fusion GPS case - in the same federal court - told Biss that he should make sure he follows federal law if he files another lawsuit.

Both of those rebukes are quite unusual," according to Kevin Martingayle, a former Virginia State Bar president who has worked on ethics or disciplinary committees for over a decade.

If I got one warning like that from a judge, I would be extremely careful going forward," Martingayle said.

I can't recall seeing it in an order after practicing law for 30 years, which has included some pretty contentious defamation cases," he added.

In the decades that we've been covering frivolous lawsuits here at Techdirt, it's quite clear that judges are extremely reluctant to issue sanctions against lawyers, even in what seem like fairly egregious cases. They are very restrained and seem to want to assume lawyers just need a few warnings to correct their ways. However, once judges start to pick up on repeated behavior, the sanctions can start coming in pretty quickly -- as we've seen in copyright trolling cases such as Prenda Law and Richard Liebowitz.