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

from the let's-see-how-this-all-works-out dept

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.

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

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19 Comments
This comment has been deemed insightful by the community.
That One Guy (profile) says:

'Oh would you look at the time, gotta go...'

I suspect that if suddenly all those cases he filed in the state have the potential to actually cost him that he will suddenly remember that he left the oven on and run away like the coward that he is as fast as possible.

Legal thuggery to play up to gullible fools becomes a lot less attractive an option when it comes with the potential of an actual penalty after all, much better to shift venues to a state that doesn’t have one of those pesky anti-SLAPP laws.

Thad (profile) says:

Re: 'Oh would you look at the time, gotta go...'

I suspect that if suddenly all those cases he filed in the state have the potential to actually cost him that he will suddenly remember that he left the oven on and run away like the coward that he is as fast as possible.

If I’m reading this correctly, it’s too late; even if he backs out now, he’ll still be on the hook; he already filed the suits.

Indeed, backing out now would just make him look worse, and maybe trigger additional sanctions on top of the ones he’s already facing. It would effectively be an admission that he knew the suits were meritless.

Devin Nunes Cow says:

Re: Re:Cowabunga

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Devin Nunes' Cow says:

Re: MOOOOOOOOO

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DB (profile) says:

I had missed that the SLAPP legislation was a procedural change and would apply immediately.

But for the SLAPP sanctions to be applied the lawsuits would have to be ongoing.

Nunes now has to decide if he will continue pursue to the lawsuits, or figure out when and how to back out of them.

If he cuts and runs, that increases the chance that the judges will grant the defendants legal fees. Especially if discovery has been noticed. But it’s still less risky than having the legislature return and quickly pass a bill.

But what if he doesn’t have the money for a potential sanction? Biss isn’t going to help, or be happy with a walk-away. Biss has money issues of his own, as evidenced by his eviction for non-payment of his rent. He is likely working for the publicity and a cut of any payout. If the publicity isn’t yet bringing in lucrative clients, and his isn’t winning any lawsuits, a walk-away settlement is a double loss.

So Nunes might be stuck. He can afford the modest costs keeping the lawsuits going, and he can hold out hope that they settle. He risks being insolvent if dismissing them goes badly. But it only gets worse if he waits.

This comment has been deemed insightful by the community.
Norahc (profile) says:

Re: Re:

So Nunes might be stuck. He can afford the modest costs keeping the lawsuits going, and he can hold out hope that they settle. He risks being insolvent if dismissing them goes badly. But it only gets worse if he waits.

That would depend on who is actually financing his legal campaign.

Thad (profile) says:

Re: Re:

Outside of the USA, the default is that the loser pays the other sides legal fees. This means that vexatious cases are unlikely.

The dilemma is that it also means valid cases are less likely. Because there’s always a chance that you’ll lose in court, even if your case is a good one; I’m sure all of us can point to bad rulings over the years.

I think we definitely need to implement "loser pays" policies in a lot more areas of civil law than we currently do, but I’m not sure implementing it across the board would be the best way to go about it.

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