Steven Biss Loses Yet Again; Judges Still Resist Sanctions
It truly is incredible how many second chances the courts are willing to give lawyers who clearly seem to be filing vexatious SLAPP suits. The lawyer in Devin Nunes' long list of SLAPP suits, Steven Biss, has a few other clients as well, though so many of them seem to be in the same Trumpist circles. The other thing they have in common is that Steven Biss seems to have no problem filing vexatious wasteful SLAPP suits to try to stifle speech. And these cases always fail. It really kinda makes you wonder (1) why anyone would hire Biss and (2) who's paying for all of these failed lawsuits? This latest one is a follow-up to a case we covered a little over a year ago, in which Biss lost a case he filed on behalf of a Russian-born academic, Svetlana Lokhova, going after a Cambridge academic named Stefan Halper and a variety of media organizations.
As we explained last year, the case really stemmed from some news stories that came out soon after Michael Flynn was fired as National Security Advisor. A bunch of stories came out claiming that there were "concerns" about potential Flynn links to Russia, including some stories that mentioned a dinner that Flynn had with some people in Cambridge, including Lokhova. Lokhova blamed Halper as the source of these stories, which she claimed were defamatory (even though many of them didn't even name her). As we noted, there is a Nunes/Lukohova connection in that Nunes referenced Lukhova as part of his bizarre conspiracy theory saying that Robert Mueller's team should face criminal charges. Nunes seemed a lot more concerned about people accusing Flynn of stuff and then investigating it, than whether or not there was any truth to the claims.
Either way, the lower court tossed out the case, noting that most of the articles/statements in question were published over a year earlier, meaning that the statute of limitations had passed. As for the statements that were made more recently, they weren't defamatory. The district court judge did call out Biss' bad behavior in the case, but still opted not to issue sanctions against him.
Biss appealed, and the latest ruling is from the 4th Circuit basically saying everything the district court said all over again -- including agreeing not to sanction Biss, even as the judges seem to recognize that he's pursuing a garbage case (and that he has a history of this).
Once again, the court notes that statements made outside of the statute of limitations cannot be the basis for a defamation claim and, once again, rejects the idea that just because people tweeted links to those articles more recently that it counts as republication. As we've covered many times, it's pretty widely settled that there's a "first publication" rule, and the statute of limitations starts ticking when a story is first published. Linking to it does not restart the clock. The court even notes that the case that Biss tried to rely on to make this argument... says the opposite.
Appellant relies heavilyon Stephen G. Perlman, Rearden LLC v. Vox Media, Inc., No. 10046, 2015 WL 5724838,at *19 (Del. Ch. Sept. 30, 2015) (denying a motion to dismiss a claim that alleged adefamatory statement was republished by a hyperlink reference because republicationgenerally presents a question of fact). Appellant's reliance on Perlman is misplaced fortwo reasons. First, the Superior Court of Delaware subsequently granted summaryjudgment on the issue, holding that a hyperlink directing readers to a previous article onthe same website does not direct the previous article to a new audience, it merely reshufflesthe existing audience. See Perlman v. Vox Media, Inc., No. N195C-07-235, 2020 WL3474143, at *8 (Del. Super. Ct. June 24, 2020). That is precisely the case here. Theoriginal New York Times article that Appellant alleges was defamatory was hyperlinkedin a later New York Times article. Thus, the hyperlink served as a reference for the NewYork Times' existing audience and did not direct the old article to a new audience. Second,the plaintiff in Perlman alleged that the text that contained the hyperlink was itselfdefamatory. Appellant makes no such allegation here. Nor could she credibly do so, giventhat the hyperlink is contained in the underlined portion of the following sentence: Mr.Halper's contacts have prompted Republicans and the president to incorrectly accuse theF.B.I. of spying on the campaign." J.A. 311. Clearly the text in which the hyperlink wascontained bears no relationship to Appellant. Thus, Appellant's attempt to rely on a factualdispute regarding whether the hyperlink constitutes republication fails.
Other people tweeting links to the articles also does not constitute republication. And, again, the court is not at all impressed with the case Biss thinks helps his cause:
Appellant further asserts that republication occurs each time a third party tweets anarticle, thus re-setting the statute of limitations and exposing the original publisher toliability. Notably, Appellant cites no cases that are directly on point. Instead, Appellantrelies almost exclusively on Weaver v. Beneficial Finance Co., a Virginia Supreme Courtdecision from 1957. See 98 S.E.2d 687 (Va. 1957). In Weaver, the court analyzed whethersending an allegedly defamatory letter to the plaintiff's employer constituted republicationbecause any claim based on the original publication of the letter was time barred. Id. at689-90. The Weaver court observed, It is well settled that the author or originator of adefamation is liable for a republication or repetition thereof by third persons, provided it isthe natural and probable consequence of his act, or he has presumptively or actuallyauthorized or directed its republication." Id. at 690. The court qualified its observation bynoting the original author is not responsible if the republication or repetition is not thenatural and probable consequence of his act, but is the independent and unauthorized actof a third party." Id. Here, Appellant argues that each third party tweet constitutesrepublication pursuant to Weaver because Weaver further observed that where the wordsdeclared on are slanderous per se their repetition by others is the natural and probable resultof the original slander."
Ignoring for a moment that Weaver was decided over 60 years ago, well before theubiquity of the Internet, this issue can be resolved pursuant to the terms of Weaver itselfbecause there the court recognized a distinction when applying republication rules tonewspapers and magazines" as opposed to individuals. Weaver, 98 S.E.2d at 691 (citingHartmann v. Time, 166 F.2d 127 (3rd Cir. 1947)). The citation to Hartmann is particularlysignificant because in Hartmann, the Third Circuit observed that with respect tonewspapers, the single publication rule is the preferable one" because public policy andthe freedom of the press command that newspapers and magazines which are publishedon a nationwide basis[] should not be subjected to the harassment of repeated law suits."166 F.2d at 134. This observation is consistent with the Armstrong court's pronouncementthat the rationale underlying the single publication rule" aims to avoid the overwhelmingmultiplicity of lawsuits that could result from defamatory statements contained in masspublications such as newspapers and magazines." 2003 WL 1960685, at *2. If each thirdparty tweet containing the article were to constitute a republication, the multiplicity oflawsuits assuredly would be beyond overwhelming.
As for the statements that were published within the statute of limitations, they also have myriad problems. First, it's not clear that Biss sued the right party. One of the statements at issue was a series of tweets from Malcolm Nance, who was not sued. Instead, Biss/Lokhova sued MSNBC, where Nance is a contributor. And that runs into some problems:
However, even assuming arguendo that the tweets are defamatory, Appellant'sclaim fails because she has not adequately pled facts that support holding NBCUniversalliable pursuant to the respondeat superior doctrine. [U]nder the traditional doctrine ofrespondeat superior, an employer is liable for the tortious act of his employee if theemployee was performing his employer's business and acting within the scope of hisemployment." Parker v. Carilion Clinic, 819 S.E.2d 809, 819 (Va. 2018) (internalquotation marks omitted)....
[....]
The sole factual allegation supporting Appellant's conclusory statement that Nanceconducts the business of NBC/MSNBC'" on his Twitter account is that NBC/MSNBC"appears in Nance's Twitter bio. J.A. 76. But viewed in context, this is not enough to giverise to apparent agency. NBC/MSNBC" appears at the end of a long list of credentialsthat are personal to Nance. Moreover, Nance's username, profile picture, and bannercontain no mention of NBC, and the profile contains a link to a website that is operated byan organization for which Nance serves as the executive director. Finally, one of theallegedly defamatory tweets appears in a thread of tweets that begins with Nance promotinghis personal book. Thus, the only reasonable conclusion is that Nance was operating hisTwitter account in his personal capacity and not with the actual or apparent authority ofNBCUniversal. [C]onclusory language in the complaint" does not alter this conclusionand cannot establish vicarious liability." Garnett, 892 F.3d at 146. Therefore, we affirmthe district court's dismissal of Appellant's defamation claims based on tweets authored byNance.
There's also a Washington Post article, but there's a big problem with that one: it's not even remotely defamatory:
The amended complaint alleges two defamatory false statements in the Post Article:(1) that [Appellee] Halper attended' . . . the February 2014 dinner"; and (2) that [Appellee] Halper and Dearlove were disconcerted by the attention the then-DIA chiefshowed to a Russian-born graduate student." J.A. 75. We can quickly dispose of any claimregarding the first statement because it is plainly of and concerning" Appellee Halperalone and says nothing about Appellant, let alone anything defamatory. Schaecher, 772S.E.2d at 598. Moreover, the dinner in question would have to be particularlyextraordinary for merely noting one's attendance to carry the required defamatory sting."Id. at 594.
Regarding the second statement, we conclude that it cannot be reasonably read todefame Appellant, either directly or through implication or innuendo. The statementexpresses that Appellee Halper and Dearlove were disconcerted by the attention" GeneralFlynn showed to an unnamed graduate student. Even if we infer the unnamed graduatedstudent is Appellant, it says nothing of her behavior toward General Flynn -- it onlyaddresses his behavior toward her. This is especially relevant given the article included adisclaimer reporting, [T]he student and a Defense Department official traveling withFlynn have denied that anything inappropriate occurred." J.A. 75.
So, uh, there's nothing defamatory in there at all.
Because Biss is Biss, he also tried to toss in the kinds of excess claims that you see in too many bogus defamation SLAPP suits these days: tortious interference and civil conspiracy. The court dumps each easily.
Then we get to the sanctions section, and, at the beginning, it sounds like the court really is thinking about finally sanctioning Biss for his bad behavior. They're certainly aware of it.
Of note, this is not the first time attorney Biss's litigation conduct has earnedreprimand. His history of unprofessional conduct is long. See, e.g., Nunes v. Cable NewsNetwork, Inc., No. 3:19-cv-889, 2020 WL 2616704, at *2 (E.D. Va. May 22, 2020) (It iswith chagrin that the Court must begin to address this motion by observing that Plaintiffengages in ad hominin attacks against CNN and others in the Amended Compliant whichthe Court cannot tolerate." (alterations and internal quotation marks omitted) (quotingSteele v. Goodman, No. 3:17-cv-601, 2019 WL 3367983, at *3 (E.D. Va. July 25, 2019)));see also Nunes v. Lizza, 486 F. Supp. 3d 1267, 1299-1300 (N.D. Iowa 2020) (requiringBiss to file a second amended complaint . . . stripped of all such spurious allegations" anddirecting Biss not to file any further public pleadings referencing such matters withoutfirst obtaining leave of the Court and showing that there is a good faith factual basis for theallegations and that they are relevant and material to some matter at issue in this litigation").In fact, attorney Biss had his license suspended in 2009 for unprofessional conductincluding breaching fiduciary duties and violating federal securities law. See Va. State Bar v. Biss, No. CL07-1846 (Va. Cir. Ct. Nov. 26, 2008). And, even during his suspensionperiod, attorney Biss failed to be forthright about his suspension status with an opposingparty when engaging in negotiations on behalf of a client, resulting in an additional 30 daysuspension of his license. See In re Steven Scott Biss, No. 09-032-078962 (Va. State BarDisciplinary Bd. Nov. 3, 2009).
Basically, the appeals court says that choosing not to discipline Biss is well within the district court's discretion:
The district court chastised attorney Biss for directing unprofessional ad hominemattacks at [Appellee] Halper and others," noting that such behavior adds nothing butunnecessary heat to this litigation." J.A. 331. But in the end, the district court elected notto sanction attorney Biss at this point and denied the motion to sanction without prejudice.We agree with the district court's observations and endorse the court's reprimandsconcerning inappropriate ad hominem attacks. We conclude, however, that the districtcourt acted within its discretion because we are not left with the definite and firmconviction that a mistake has been committed." Six v. Generations Fed. Credit Union, 891F.3d 508, 519 (4th Cir. 2018). To the contrary, the record establishes that although thedistrict court did not condone the [litigation] tactics" at issue, it elected to exercise cautionand employ a wait-and-see approach based on post-judgment litigation.
And thus, Biss escapes further sanction yet again. Given his activities over the past few years, it does not seem like Steven Biss has any intention of changing his behavior. It seems quite likely that we will continue to see him filing frivolous and vexatious SLAPP suits that seek to silence journalism and commentary about his crew of Trump-loving clients.
All this, of course, is just yet another reminder that every state needs better anti-SLAPP laws and we need a federal anti-SLAPP law to help stop these lawsuits and put the filer of them on the hook for the legal fees of defendants.