Steven Biss Loses Another Wacky SLAPP Suit; Judge Scolds, But Does Not Sanction, Him

from the slappity-slapp-slapp dept

Steven Biss has lost again. A week after losing one of his many, many lawsuits representing Congressman Devin Nunes, and also facing possible sanctions in another case, a judge has dismissed yet another one of his SLAPP suits. Once again, as is often the case with Biss, the lawsuit was nonsense, included aspects that were much more performative than legally sound, and was somehow tied to various conspiracy theories and right wing wackiness. As we highlighted last week, it's noteworthy how many of Biss's clients seem to have connections to one another, and this case is no different.

This case was filed last year by a Russian-born academic, Svetlana Lokhova, suing Cambridge academic Stefan Halper and a variety of media properties and journalists, including the New York Times, the Washington Post, the Wall Street Journal, and MSNBC. At issue were effectively follow ups on a flurry of stories in early 2017 (that date becomes important in a moment), soon after Michael Flynn was forced to resign as Donald Trump's first National Security Advisor, under a cloud of suspicion on a variety of fronts. A variety of media organizations reported that US intelligence officials "had concerns" about Flynn and some possible connections to Russia, including a dinner he had with a group of people at Cambridge, which included (among others) Lokhova. Lokhova seems to blame Halper for these stories -- and thus sued him and some of the media outlets that reported them.

The stories all focused on Flynn, and specifically the concerns of US intelligence agencies about Flynn. Some of them, such as the NY Times story from 2018, don't even name Lukhova, and only obliquely refer to someone who might be her. This is also true of a 2018 Washington Post story that describes Lukhova in reference to Flynn, but also fails to even name her. And yet, in 2019, Lokhova sued for defamation -- using Biss as her lawyer.

What's notable here is that just a month before the lawsuit was filed, Rep. Devin Nunes (that guy?!?) referenced Lukhova in a Fox News interview right after the Mueller Report came out, and Nunes suggested that he wanted to investigate if there was someone who "set up" misleading evidence in order to create the Mueller investigation. This was part of Nunes' ongoing efforts to build up a bizarre conspiracy theory regarding the Mueller Report -- to the point that he's saying Mueller's team should face criminal charges and that he's planning to make "some type of criminal referral." Nunes seemed to argue that whoever "accused" Flynn of "having some type of Russian fling" needs to be investigated:

"The first is involved with Gen. Flynn," Nunes said. "Gen. Flynn was supposedly entrapped, was meeting with a Russian woman. I want to know what really happened there because we are just now finding out about this and we need a lot more information on what really was general Flynn doing. It's a big deal if somebody within our intelligence agencies were accusing a three star general of having some type of Russian fling. It's serious stuff. I want to get to the bottom of that."

Either way, in April he mentions her, and then a month later she's represented by the same lawyer representing him and a variety of other loosely connected political operatives who all seem to be pushing similar conspiracy theories. Quite a coincidence!

Anyway, as you probably know, defamation law has a statute of limitations that varies by state. In Virginia, like many states, the statute of limitations is one year. Most of the articles and statements being sued over came way before that. This is something that a good lawyer should have known about. Biss tried to argue that because people have been tweeting links to those older articles, it resets the clock. That, of course, is not how any of this works. In defamation cases, there's something called the single publication rule, which means that you date the statute of limitations to when the statements were first made, leading the judge to easily toss out the claims on most of the articles. Other attempts to reset the statute of limitations also fail, including a claim that because a more recent NY Times article links back to the earlier one, that counts as "republication." As the court notes, if the new article was actually referencing her, she might have an argument, but it isn't.

Although this argument might be meritorious in other contexts, it fails here. The New York Times' April 9, 2019 article, titled "Justice Dept. Watchdog's Review of Russia Inquiry Is Nearly Done, Barr Says," does not mention or concern Lokhova; instead it focuses on the Inspector General's investigation "into aspects of the Russia inquiry, including whether law enforcement officials abused their powers in surveilling a former Trump campaign aide." See Am. Compl. ,r 5 (linking to https://www.nytimes.com/2019/04/09/us/politics/russiainvestigation- barr.html). The article's discussion of Halper includes a sentence containing a hyperlink to the May 18, 2018 article. Id. The underlined portion of the following sentence contains the hyperlink: "Mr. Halper's contacts have prompted Republicans and the president to incorrectly accuse the F .B.I. of spying on the campaign." Id. This statement does not substantively alter or add to the portion of the May 18, 2018 article that allegedly defamed Lokhova. "[U]nder traditional principles of republication, a mere reference to an article, regardless how favorable it is as long as it does not restate the defamatory material, does not republish the material." In re Philadelphia Newspapers, LLC, 690 F.3d at 175. This is because "[ w ]bile [ a reference] may call the existence of the article to the attention of a new audience, it does not present the defamatory contents of the article to the audience." Salyer v. Southern Poverty Law Center, Inc., 701 F.Supp.2d 912, 916 (W.D. Ky. 2009) (emphasis in original). Under this persuasive case law, the New York Times' 2019 article does not retrigger the statute of limitations for the May 18, 2018 article.

Biss, laughingly, tries to argue that because other people have linked to those older articles, that resets the liability for those beyond-the-statute-of-limitations pieces. The court is not buying it.

This argument is similarly unpersuasive. Lokhova has not cited any case holding that a media organization is liable in perpetuity for third-party tweets of its allegedly defamatory materials. Indeed, Lokhova's argument is inconsistent with persuasive case law from other courts, which "have concluded that statements posted to a generally accessible website are not republished by" "a third party's posting the statement elsewhere on the internet."

There's a lot more, but systematically the court explains over and over again why Biss's legal arguments are wrong.

There are two publications that do fall within the statute of limitations, though. One by the Washington Post (mentioned above, which does not even name Lokhova) and a tweet by MSNBC's Malcolm Nance. For what it's worth, earlier in the opinion, the court pointed out that Nance was added as a defendant only with a later amended complaint, and it appears that no effort was ever made to serve him with the lawsuit. Indeed, the court throws out the claims regarding Nance on this basis alone:

Although Nance was added as a defendant in the Amended Complaint on August 29, 2019, plaintiff has made no effort to serve him with that complaint. Plaintiffs failure to serve Nance was raised at the October 25, 2019 hearing, which placed Lokhova and her counsel on clear notice that service was required. As such, in addition to the substantive reasons discussed in this Memorandum Opinion, the complaint against Nance will also be dismissed because by not making any effort to serve Nance, plaintiff has apparently abandoned her claim against him.

As for the Washington Post article, the court points out just how ridiculous those claims are, in part because the only direct statements that Biss/Lokhova claim are defamatory are... not.

The complaint identifies only two statements in the entire 2,262-word Post article (Attachment B) that are allegedly false and defamatory of Lokhova: (I) that Halper "attended" the February 2014 dinner, and (2) that "Halper and Dearlove were disconcerted by the attention the then- DIA chief showed to a Russian-born graduate student who regularly attended the seminars, according to people familiar with the episode."... Even assuming the first statement to be false, the statement does not defame anyone, and clearly is not "of and concerning" Lokhova; it relates to Halper alone. The second statement does not name Lokhova and simply includes a generic reference to a "Russian-born graduate student who regularly attended the seminars." Even assuming that the statement is "of and concerning" Lokhova and is false, it does not defame her. At most, the second statement suggests there were concerns about Flynn's behavior towards Lokhova, without stating or implying that Lokhova herself did anything improper. The same conclusion applies when the two statements are considered together, and in the context of the other statements in the article as a whole, particularly because the sentence immediately following the second quote provides a clear disclaimer of any wrongdoing: "the student and a Defense Department official traveling with Flynn have denied that anything inappropriate occurred."... In short, there is nothing in this article that defames the plaintiff.

Various other claims are easily tossed out as well for this reason or that. Throughout the ruling, though, you can steadily see Judge Leonie Brikema's frustration with Biss's legal strategy. Early on, in a footnote, the judge points out that Biss's complaint has the appearance of being filed for political reasons, rather than legitimate jurispredential concerns:

Although Flynn is not a party to this action, the complaint frequently mentions him. Indeed, some portions of the complaint do not focus on Lokhova, but instead discuss Flynn, Halper, President Donald J. Trump, and others. For example, one paragraph of the complaint states that during a BBC radio program in May 2017, "Halper misrepresented that 'people are deeply concerned about the erratic nature of this White House."'... Such unnecessary and irrelevant statements suggest that political motives, more than legitimate jurisprudential concerns, drive this litigation.

Later on, another footnote calls out another attempt by Biss to try to claim possibly defamatory statements within the statute of limitations, and notes that one of them happened after the complaint was filed, which is not how any of this works. It further notes that a mere phone call between Lokhova and a journalist isn't "publishing" for purposes of defamation. In other words, this is just bad lawyering all around.

... the complaint alleges that on an unspecified date, Halper told a chief reporter with the Sunday Times of London that Lokhova was a Russian spy... The placement of this allegation within the complaint's chronology suggests Lokhova is alleging that this statement occurred in December 2016, which would make it time-barred. The complaint then alleges that on December 19, 2019, the reporter "called Lokhova and repeated the false allegation." This allegation is obviously erroneous, because December 19, 2019 had not yet occurred when the complaint was filed. Even if this phone call took place within the statute of limitations, it would not constitute defamation, because the complaint does not allege that the call involved anyone besides the reporter and Lokhova.

The judge also notes that Biss -- as he has done in other cases -- uses the kind of language not commonly found in legal complaints. Halper asked for sanctions against Biss, and while the court declines to issue such sanctions, the judge clearly looks skeptically upon Biss's actions:

The record is clear that Biss filed an excessively long complaint and amended complaint on Lokhova's behalf directing unprofessional ad hominem attacks at Halper and others. For example, the complaint calls Halper a ''ratf***er,"... and refers to the media defendants as "stooges," ... Such language adds nothing but unnecessary heat to this litigation. Moreover, the complaint exaggerates the nature and content of the allegedly defamatory statements. In addition, Biss and Lokhova had to have known that most of her claims were time-barred, as she had previously filed an unrelated defamation lawsuit in the United Kingdom, which was dismissed as untimely under the one-year statute of limitations applicable in that jurisdiction.

It's not that surprising that the court has refused to issue sanctions. Very few judges will, and it generally takes very extreme behavior -- and most judges are willing to give lawyers the benefit of the doubt for a very long time. But the judge here at least notes that she'll be paying attention to future actions in this case, should they occur:

Although the Court does not condone the tactics employed by Biss and Lokhova in this action, their conduct is not sufficient to warrant the draconian measure of imposing sanctions at this time. The allegations of improper behavior by Biss are undoubtedly more severe than those by Lokhova, and should Biss file further inappropriate pleadings or pursue frivolous post-judgment litigation against any of these defendants, sanctions might well be justified.

For what it's worth, Lokhova has already announced that she will be "appealing the decision on many grounds." That won't work. Considering that almost all of the case was thrown out for being outside the statute of limitations, there's not much chance of anything happening on that front. Not surprisingly, on Twitter, various Lokhova supporters are already concocting fanciful conspiracy theories about the deep state and the "leftist judge" so this nonsense isn't over yet.

At least Biss didn't use this case to subpoena Twitter for the identity of the satirical @DevinCow account.

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Filed Under: 1st amendment, defamation, devin nunes, free speech, malcolm nance, michael flynn, statute of limitations, stefan halper, steven biss, svetlana lokhova

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