Case Summary and Outcome

On February 19, 2021, the single judge bench of the US District Court of New York granted the Cable News Network’s motion to dismiss in the complaint filed by US Representative Devin G. Nunes. Nunes alleged that CNN published an article indicating that Lev Parnas, an indicted former associate of Rudy Giuliani, was willing to testify that Nunes had traveled to Vienna and met with former Ukrainian Prosecutor General Victor Shokin to discuss “digging up dirt” on former Vice President Joe Biden. The judge dismissed the complaint on the grounds that Nunes had failed to comply with the California Civil Code by omitting to serve a specific written demand for retraction of the alleged false and defamatory news article on the defendants.

Facts

This suit was filed by US Representative Devin G. Nunes (“plaintiff”) against Cable News Network (“defendant”) alleging defamation per se and conspiracy to defame. The plaintiff alleged that CNN: (1) intentionally published and disseminated a demonstrably false news article and related reporting about him, and (2) engaged in a conspiracy to defame him and to damage his personal and professional reputation. CNN moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

The plaintiff is a member of the United States House of Representatives, and a citizen of California. He has served in the House of Representatives since 2003 and represents California’s 22nd Congressional District. He is the Ranking Member of the House Intelligence Committee as of March 2021, which oversees matters pertaining to national security. The defendant is a digital media network that publishes and disseminates news through a variety of platforms. CNN’s network includes television broadcasts, the publication of articles online, and the operation of multiple social media accounts.

On November 22, 2019, CNN published an article written by reporter Vicky Ward, reporting that Joseph Bondy, a lawyer for Lev Parnas, an indicted former associate of Rudy Giuliani, had stated that Lev Parnas was willing to testify to Congress that the plaintiff had traveled to Vienna and met with former Ukrainian Prosecutor General Victor Shokin. According to the article, Lev Parnas was willing to testify that the plaintiff’s meetings were to discuss “digging up dirt” on former Vice President Joe Biden.

At the same time that the article was published on CNN’s digital network, Vicky Ward appeared as a guest on a CNN news program, Cuomo Prime Time, hosted by news anchor Chris Cuomo. They discussed the article and allegedly “published further defamatory statements” about the plaintiff’s involvement in “looking for dirt on the Biden.” The article was also disseminated broadly through both CNN organizational social media accounts, such as the accounts for CNN International and CNN Politics, and the individual accounts of CNN employees.

Decision Overview

The case was presided over by Justice Laura Taylor Swain of the US District Court Southern District of New York. The central issue for consideration was whether the plaintiff could proceed with the claims of special damages against the news portal in absence of compliance with the mandatory retraction demand required in defamation suits.

The judge evaluated the plaintiff’s compliance with the California Civil Code which limited a defamation plaintiff’s recovery unless the plaintiff makes a specific written demand for a retraction within a short period of time. § 48a(a) of California Civil Code states that “[i]n any action for damages for the publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast, plaintiff shall only recover special damages if a correction is demanded and is not published or broadcast, as provided in this section” [p. 10] The plaintiff is required to serve upon the publisher “a written notice specifying the statements claimed to be libelous and demanding that those statements be corrected…..the notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous” [p. 11] Herein, the judge noted that despite the complaint being filed over two months after the original release of the Ward Article and the Cuomo Prime Time interview, no written request was served upon CNN.

The plaintiff further advanced four arguments against the application of the retraction statute to his defamation claims. First, he contended that the retraction statute did not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” While rejecting this contention, the judge stated that it is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week” and CNN had been publishing multiple times a day and published the article in question in electronic form [p. 12].

Second, the plaintiff argued that the retraction statute did not apply to claims of defamation per se by placing reliance on several case laws. However, this contention was also rejected by the judge who held that the cases cited by the plaintiff didn’t involve news media publication of the allegedly defamatory material and the cases didn’t construe the retraction statute. The judge observed that the retraction statute expressly applied to “any action for damages for the publication of a libel in a daily or weekly news publication,” and didn’t distinguish or exempt claims of defamation per se. The judge placed reliance on Kalpoe v. Superior Court [166 Cal. Rptr. 3d 80 (Cal. Ct. App. 2013)] and Anschutz v. Snepp [171 Cal. App. 4th 598, 642 (2009)].

Third, the plaintiff argued that the California retraction statute was a matter of procedure and therefore, the law of the transferor forum, Virginia, should apply instead. However, the Court held that limits on recovery were substantive law and the retraction statute therefore, being a substantive law limiting a plaintiff’s recovery on a defamation claim, was applicable to the present forum [p. 14].

Fourth, the plaintiff contended that the retraction statute was inapplicable because it violated Virginia’s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” This was also rejected by the judge who held that “a mere difference between the respective defamation laws of Virginia and California does not, ipso facto, justify refusal to adhere to comity principles.” The judge remarked that comity based reason could lead to inapplicability of the law if it was immoral and shocking to one’s sense of right, however, there was nothing “immoral” or “shocking” about the California retraction statute [p. 14].

For the above-mentioned reasons, the Court found that California Civil Code § 48a(a) was applicable to plaintiff’s defamation claim. The judge held that in the absence of compliance with the statutory notice and retraction demand requirements set forth therein, the plaintiff could allege only special damages and was not entitled to seek any other type of damages. Furthermore, while deciding the claims of special damages, the judge held that “the primary purpose of Rule 9(g) is one of notice, both to inform defending parties as to the nature of the damages claimed in order to avoid surprise; and to inform the court of the substance of the complaint.” Since the plaintiff had failed to meet the minimum pleading requirements for special damages established by Rule 9(g), the judge held that the plaintiff was not entitled to special damages [p. 16]. Lastly, the judge also dismissed the conspiracy claims because a conspiracy is activated by the commission of an actual tort, however the plaintiff failed to establish defamation (actual tort) in the instant case.