Fatal to the California congressman’s $435 million lawsuit against the cable news network was his failure to make a timely retraction demand.
MANHATTAN (CN) — Adding a second defeat this week to the pile of recent courtroom losses for Devin Nunes, a New York judge on Friday threw out the Republican congressman’s 2019 defamation suit against CNN.
Nunes, who represents California’s 22nd Congressional District, sued the cable news outlet over a year ago, demanding $435 million in damages over its broadcast about indicted Rudy Giuliani crony Lev Parnas who implicated Nunes in the scheme by President Donald Trump’s inner circle to get dirt on Joe Biden ahead of the 2020 election.
Parnas said Nunes met with Ukraine’s former prosecutor general Victor Shokin in Austria to get dirt on Biden and his son, who sat on the board of a Ukrainian energy firm.
U.S. District Judge Laura Taylor Swain dismissed Nunes’ amended complaint on Friday for failing to sufficiently plead that he had suffered any special damages from the report and consequently “fails to state a claim upon which relief may be granted.”
“While the [Amended Complaint] uses the phrase ‘special damages,’ refers to ‘out of pocket expenses,’ and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim,” the Clinton-appointed judge wrote.
Swain chided Nunes for not having made a timely demand for correction or retraction in writing within 20 days of learning of CNN’s report. This failure meant he was allowed to plead only special damages, and he failed to meet the minimum pleading requirements for special damages, Swain wrote.
The judge also dismissed a remaining conspiracy count because she found there was no underlying tort to support a viable claim for conspiracy.
“Plaintiff has not pleaded any facts from which the Court may reasonably infer that CNN entered into an agreement with Joseph Bondy, Lev Parnas, and others, in order to defame and injure Nunes,” a footnote to the 18-page opinion states.
Bondy, who represents Parnas, had said at the time that he was willing to testify to Congress that Nunes had traveled to Vienna and met with Shokin.
In his complaint, meanwhile, Nunes referred to CNN as “mother of fake news” and “the least trusted name.”
“CNN is eroding the fabric of America, proselytizing, sowing distrust and disharmony. It must be held accountable,” the lawsuit alleged.
After writing the November 22, 2019, article where Bondy linked Nunes and Shokin, CNN reporter Vicky Ward appeared on “Cuomo Prime Time” to discuss the story with the newtwork’s news anchor Chris Cuomo.
CNN argued in its motion to dismiss that, since Nunes had failed to seek a timely retraction from CNN, as required by the retraction statute in California Civil Code, and then did not allege any special damages or claim that Nunes suffered any specific pecuniary loss.
“His failure to do so limits his recovery to only special damages as a matter of law,” Dane Butswinkas with the Washington firm Williams & Connolly wrote. “Because the Amended Complaint fails to plead special damages with the specificity that is required, it must be dismissed.”
Representatives for both Nunes and CNN did not immediately respond to requests for comment Friday afternoon.
Earlier this week, a judge in Maryland federal district court tossed out a lawsuit that Nunes’ senior aide Derek Harvey brought against CNN, Parnas, and Bondy.
In August 2020, a federal judge in Iowa threw out Nunes’ $75 million libel suit against Esquire magazine and journalist Ryan Lizza over an article saying Nunes was hiding a “politically explosive secret” involving his family’s dairy farm in the Hawkeye State.
Trump awarded the Medal of Freedom to Nunes before leaving office in January, stating in a press release that the congressman deserved recognition for his confrontational attitude toward the Iran Nuclear deal and what Trump called his “investigation into the Obama-Biden administration’s misconduct” during the 2016 election.
Nunes was represented in the CNN suit by Charlottesville-based attorney Steven Biss. He initially brought the 47-page complaint in the Eastern District of Virginia — a move that a federal judge had said raised “significant concerns about forum shopping” given the state’s permissive libel laws.
Media experts note that Virginia has become a destination for SLAPP suits, short for strategic lawsuit against public participation, which often target critics using otherwise protected speech. The cases are typically dragged out to exhaust the funds of the defendants before ultimately leading in a settlement, withdrawal or dismissal on the merits.