MANHATTAN (CN) — It’s the end of the line for Devin Nunes in a defamation claim that first bounced from Virginia to Manhattan federal court before landing in front of the Second Circuit, where judges affirmed its dismissal Wednesday.
The former California congressman filed his complaint in December 2019, accusing CNN of relaying false statements about him made by Lev Parnas, an associate of President Donald Trump’s attorney Rudy Giuliani. Parnas claimed that Nunes met with a former Ukrainian prosecutor to dig up dirt on President Joe Biden — part of the misconduct behind Trump’s first impeachment.
Nunes chose Richmond, Virginia, as the venue for that first effort. Until recently, the state had weaker anti-SLAPP laws — short for strategic lawsuit against public participation — compared with those other states. The statute entitles defamation defendants who win their cases to collect attorney fees, meaning Nunes would have to pay more than his own costs if he lost.
CNN removed the case to the Southern District of New York, near its headquarters, where the parties nevertheless agreed it still fell under Virginia’s choice-of-law principles. That left the district judge in New York to predict how a Virginia state court would have ruled.
Taking up that task was U.S. District Judge Laura Swain, who determined that, since the story was published simultaneously in multiple states, the Old Dominion would have turned to laws in Nunes’ home state of California. There, Nunes had no claim since he failed to demand a retraction or special damages.
The Second Circuit agreed.
“California law applies to Nunes’s claims because (1) the complaint alleges with substantial detail Nunes’s connection to California and the importance of his reputation among the constituents in his district, and (2) nothing alleged in the complaint suggests countervailing circumstances sufficient to overcome the presumption that his greatest reputational harm occurred in his home state,” U.S. Circuit Judge William J. Nardini wrote in a 43-page decision. “We therefore disagree with Nunes’s arguments to the contrary.”
The California retraction statute in play holds that plaintiffs charging news outlets with libel or slander can recover special damages only if they ask for a correction within 20 days of publication and the outlet denies the request.
“It substantially limits — and may even preclude — a defendant’s liability for defamation,” Nardini wrote.
The CNN article that spurred the complaint quoted the attorney Joseph Bondy as saying his client, Parnas, was willing to testify in front of Congress that Nunes met with General Victor Shokin in Vienna with the goal of “digging up dirt” on Biden in the lead-up to the 2020 election.
Nunes said Parnas couldn’t be trusted. In October 2021, Parnas was convicted on six federal criminal counts for facilitating and concealing illegal donations during the 2018 midterm election.
Nunes, a Republican, represented California for more than 20 years. He was the ranking member of the House Intelligence Committee, overseeing national security matters — therefore playing a lead role in the 2019 impeachment inquiry.
On the fully Trump-appointed panel, U.S. Circuit Judge Michael H. Park joined Nardini. Judge Steven Menashi dissented, writing that the Virginia court’s modern approach has been to reject the idea that a plaintiff suffers the most harm in their own state.
“I doubt that the Virginia Supreme Court would adopt that approach and, even under that approach, I would not conclude that Congressman Nunes suffered the greatest reputational injury from the alleged defamation in California,” the dissenting opinion states.
Menashi wrote that New York, where CNN is headquartered, was the proper forum for the litigation. “No one disputes that the place of broadcast was New York," the judge added.
Menashi also held that, if a complaint doesn’t identify the location of allegedly defamatory statements, and the court can’t determine the location on a motion to dismiss, the motion should be denied. Discovery would answer those questions.
Nunes has waged other defamation battles against news outlets. He filed a lawsuit against Esquire over a story that claimed the former congressman's family farm in Iowas was hiding a big political donations. It was dismissed in federal court, but the Eighth Circuit revived some of the claims.
Nunes also sued The Washington Post over two stories that he said described his relationship with a former Trump aide inaccurately.
Attorneys for Nunes and CNN did not immediately respond to requests for comment.
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