Devin Nunes’ defama­tion law­suits put spot­light on his at­tor­ney’s sus­pen­sion

The Tribune (SLO) - - Front Page - BY KATE IRBY


When Rep. Devin Nunes ap­peared on Fox News to an­nounce his defama­tion law­suit against Twit­ter and a par­ody ac­count, “Devin Nunes’ cow,” he de­clared the le­gal fil­ing would be the first of many.

He fol­lowed through with another law­suit this week against McClatchy, par­ent com­pany of The Fresno Bee.

Both law­suits were filed by an at­tor­ney based in Char­lottesville, Vir­ginia, a solo­prac­ti­tioner named Steven S. Biss who is making a name for him­self su­ing me­dia or­ga­ni­za­tions for defama­tion.

With the Nunes law­suits, Biss has thrust him­self into the na­tional spot­light and, like his client, opened him­self up to crit­i­cism on Twit­ter and else­where.

The at­ten­tion ex­posed a fac­tual er­ror in Biss’ ini­tial fil­ing against McClatchy. It also drove so­cial me­dia dis­cus­sion this week about a sim­i­lar case he filed that was dis­missed with­out a judg­ment and his year-long sus­pen­sion from prac­tic­ing law a decade ago.

Biss, a grad­u­ate of Univer­sity of Rich­mond School of Law, did not re­turn a call re­quest­ing com­ment.

Nunes an­nounced the law­suit seek­ing $150 mil­lion from McClatchy on Mon­day night. It ac­cuses the pub­lisher and Repub­li­can po­lit­i­cal strate­gist Liz Mair of defama­tion and con­spir­acy against Nunes, cit­ing sto­ries by The Fresno Bee and McClatchy. The sto­ries de­tailed Nunes’ in­vest­ment in a win­ery that had been sued over a yacht party that al­legedly in­cluded un­der­age sex work­ers and co

caine, and Nunes’ use of Po­lit­i­cal Ac­tion Com­mit­tee money to buy tickets to Celtics games.

Less than a day af­ter fil­ing, the law­suit against McClatchy ap­peared to be amended Tues­day due to a fac­tual in­ac­cu­racy that Biss was lam­basted for on­line.

In the orig­i­nal ver­sion of the law­suit, Nunes and Biss ac­cuse a Fresno Bee re­porter of em­pha­siz­ing the words “wo­man,” “Devin,” and “co­caine” with a bold font in a tweet about the story on the win­ery law­suit. While a screen­shot of the tweet in the orig­i­nal law­suit showed the words in bold font, the orig­i­nal tweet has text only in plain font.

Law blogs called it an “em­bar­rass­ing mis­take over how Twit­ter works,” and Twit­ter users started point­ing out the dis­crep­ancy, not­ing that when users search cer­tain words on Twit­ter the re­sult­ing tweets show the words searched for in bold.

A new ver­sion of the law­suit called “amended com­plaint” has been posted by Fox News, which no longer men­tions a re­porter bold­ing cer­tain words in a tweet. Fox News ex­plains that “Nunes’ team dropped the claim” in the amended com­plaint.

McClatchy has not been served with the com­plaint. The on­line docket at Vir­ginia’s Albe­marle Cir­cuit Court shows that Nunes has filed a mo­tion to sub­mit an amended com­plaint.

McClatchy in a state­ment re­leased Tues­day says it considers the law­suit to be a “base­less at­tack on lo­cal jour­nal­ism and a free press.”

Cal­i­for­nia-based First Amend­ment Coali­tion Ex­ec­u­tive Direc­tor David Snyder said Biss’ demands for dam­ages run­ning into the mil­lions of dollars ap­peared to be an “at­ten­tion-grab­bing tac­tic.”

In June, Biss filed a defama­tion suit on be­half of in­vestor Ed Bu­towsky of Plano, Texas against NPR for $57 mil­lion in dam­ages. NPR re­ported on a fed­eral law­suit that al­leged Bu­towsky worked with the White House to in­flu­ence a re­tracted Fox News re­port on con­spir­acy theories about murdered Demo­cratic Na­tional Com­mit­tee staffer Seth Rich. Bu­towsky’s suit in the East­ern District Court of Texas has not been re­solved.

In his com­plaint, Bu­towsky al­leges that NPR’s re­port­ing was in­ten­tion­ally bi­ased against him. NPR in state­ments on the law­suits has said it stands by its re­port­ing.

Biss “files a lot of defama­tion cases and a lot of his clients tend to be Repub­li­can, or right-lean­ing,” said Lee Ber­lik, a Vir­ginia defama­tion at­tor­ney who said he doesn’t know Biss per­son­ally. Defama­tion and libel are iden­ti­cal charges un­der Vir­ginia law, Ber­lik said.

In 2017, a Vir­ginia judge threw out a defama­tion law­suit filed by Biss on be­half of Hanover County Su­per­vi­sor Sean Davis against Style Weekly.

The Vir­ginia weekly’s ar­ti­cle re­ported com­plaints that Davis had teach­ers at Hanover High School sus­pended or dis­ci­plined “if they present ideas or images that Davis considers too lib­eral.” The ar­ti­cle quoted stu­dents, par­ents and so­cial me­dia posts ex­press­ing con­cern about cen­sor­ship at the school.

In his law­suit, filed in Hanover Cir­cuit Court, Davis al­leged the ar­ti­cles in­cluded false state­ments that were in­tended to harm his rep­u­ta­tion.

The cir­cuit court judge, Micheal Levy, told Biss’ client he was sub­jected to height­ened scru­tiny as a pub­lic of­fi­cial.

“You’re re­quired to have a thicker skin,” Levy said of pub­lic of­fi­cials, ac­cord­ing to the Rich­mond Times-Dis­patch in Au­gust 2017.

Years be­fore that, Biss was sus­pended from prac­tic­ing law by the Vir­ginia State Bar start­ing in January 2009. The sus­pen­sion lasted a year.

Biss had agreed to hold shares of a com­pany in es­crow that a Hong Kong client had promised to buy, ac­cord­ing to an or­der by a panel of judges, and in­stead vi­o­lated fed­eral se­cu­ri­ties laws by giv­ing the shares to his client with­out pay­ment.

A ju­di­cial panel in­ves­ti­gat­ing Biss in 2008 said he “or­ches­trated a cash­less takeover” of a com­pany. The panel wrote that Biss “demon­strated a lack of com­pe­tence” in pur­su­ing trans­ac­tions that he should have known were crim­i­nal or fraud­u­lent.

Biss tes­ti­fied he “had no clue” that his client had planned to pay for the shares with Chi­nese real es­tate in­stead of cash, and was only made aware of that issue af­ter the fact, ac­cord­ing to his sus­pen­sion.

A year later, Biss re­ceived a 30-day sus­pen­sion when the Vir­ginia State Bar Dis­ci­plinary Board found that he vi­o­lated the terms of his previous sanc­tion by rep­re­sent­ing clients in 2009.

Biss was also pub­licly rep­ri­manded by the Vir­ginia State Bar in 2010 for vi­o­lat­ing con­flict of in­ter­est rules in con­nec­tion with a for­mer client. He is cur­rently a lawyer in good standing, ac­cord­ing to Vir­ginia State Bar records.

Kate Irby: 202-383- 6071, @KateIrby

Devin Nunes

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