The attorney representing Rep. Devin Nunes in five high-profile defamation lawsuits has a history of using questionable tactics in litigation, including claiming to represent people who did not know him.
“You file a suit on behalf of somebody you never talked to? I mean that’s astounding. That’s astounding,” Judge Matthew F. Kennelly of the U.S. District Court for Northern Illinois scolded Steven S. Biss in court, according to a transcript. “I mean, I’ve never heard of that happening in my life. Have you?”
A transcript shows that Biss replied that he had not.
That 2004 lawsuit is one of several in which Biss, Nunes’ attorney, demonstrated an unconventional litigation strategy.
Biss has become a public figure himself in representing the high-profile Nunes. His cases collectively test the boundaries of the First Amendment and the freedom of news organizations and citizens to discuss public figures in a digital era.
It’s unclear how or when Nunes connected with Biss, a Virginia lawyer who until recently did not have a national reputation or known success in defamation lawsuits.
McClatchy reviewed hundreds of pages of court documents related to Biss’s lawsuits. People related to the lawsuits declined to comment on the record, with several of them describing Biss as a highly litigious person who wouldn’t hesitate to sue them again.
In the past week, two people filed new complaints with the Virginia Bar regarding Biss. In one, a Maryland resident complained that Biss harassed him with a threatening letter and with a subpoena for his social media activity through a lawsuit with which he has no clear connection.
In the other, a woman says Biss, his wife and unspecified associates of theirs have been harassing them.
McClatchy, the parent company of The Fresno Bee, is one of the entities Nunes is suing. The Fresno Bee is the largest news organization in Nunes’ California district, which also covers Tulare, Clovis and Visalia. He is running for re-election this year.
Public records show Biss and Nunes have similar perspectives on politics and the news media. Like Nunes, Biss in online writings has criticized journalists as people who “generally distort the truth” and disparaged major technology companies for failing to censor potentially defamatory content.
Biss faced a year-long ban from practicing any law in Virginia starting in 2008 stemming from his work in a case where a company was accused of making fraudulent financial statements in a bid to take over another business.
In sworn statements submitted as evidence in other cases, Biss’s legal adversaries said he has approached them with what they regarded as unethical requests to testify and threatened to sue them.
“Biss claimed he had a number of issues in his past that showed Biss would do anything to defeat anyone and he would not rule out breaking the law,” a lawyer suing Biss for slander said in a court affidavit in 2006. The lawyer eventually dropped that lawsuit against Biss.
Other public records show Biss has been litigious in his personal life. Last year, he was evicted by his landlord of 13 years. Biss appealed his eviction for eight months before surrendering the property, owing both the back rent and thousands of dollars in legal fees.
Nunes’ lawsuits have given Biss a national platform – even prompting other DC officials such as Kash Patel, a former Nunes aide and current White House adviser, to employ Biss in their own defamation suits. Biss also has threatened to sue another congressman, Rep. Ted Lieu, on behalf of Nunes.
Neither Biss nor Nunes responded to requests for comment or to detailed questions McClatchy sent them on Monday.
‘Don’t know you from the man in the moon’
The dispute in a Chicago courtroom in October 2004 in which Biss claimed he had more clients than he represented earned him a pointed condemnation from the judge, but no discernible consequences.
A transcript from the case shows the judge was flabbergasted by Biss, who said he was representing 226 clients suing Citigroup Global Markets, Inc. over bad investments.
In fact, Biss represented fewer than 170 investors.
The investors Biss represented were seeking $124.5 million from Citigroup Global Markets. They alleged that brokers at Citigroup Global Markets had purposely misled investors.
“We’ve got four of five people in here who have signed sworn declarations saying they don’t know you from the man in the moon and they’ve never talked to any of the lawyers for the plaintiffs in the lawsuit at the beginning. How is this possible?” asked Judge Kennelly, according to a court transcript.
BEHIND OUR REPORTING
Why did we report this story?
Rep. Devin Nunes, R-Tulare, in 2019 filed six lawsuits against news organizations, Twitter, people who criticize him on social media and an investigative research firm that worked for Hillary Clinton’s presidential campaign. His attorney in each case is Steven Biss, a Virginia lawyer who was not well-known for defamation cases before he went to work for the congressman. We wanted to look into Biss’ record to better understand how he connected with Nunes and to explore his approach in court in a set of lawsuits that collectively test the boundaries of the First Amendment.
How did we report this story?
We carried out multiple public records searches that involved hundreds of pages of documents, summarizing Biss’s court cases, conflicts with other lawyers, discipline by the Virginia State Bar, eviction issues and financial problems. Some dated back to the early 2000s, and some were more recent. We called people related to the cases and attorneys with past dealings with Biss, many of whom declined to comment and had concerns that Biss might sue them if they said anything. We sent a detailed request for comment to both Biss and Nunes’ office, including all the incidents reported in the story. Neither responded.
Citigroup Global Markets lawyers offered multiple sworn statements from people Biss said were his clients. They said they’d never heard of Biss or been approached by him. Biss ultimately dismissed 59 of the clients he reported as his from the case.
The judge threatened to report Biss for ethics violations, demanding a written explanation of how it happened.
“And if I were you, I would consult with a lawyer before I did it. Okay?” the judge said, threatening disciplinary action.
Whether the judge followed through is unclear. Public records McClatchy accessed do not show that Biss suffered consequences from that case.
The investors Biss represented eventually lost their case. It wasn’t the last time Biss would face a professional rebuke over legal ethics in court.
Why he lost his license for a year
A review of public records shows that Biss, 54, was suspended for a year and a day on Nov. 26, 2008, from practicing law in Virginia by the Chesterfield County Circuit Court.
The discipline stemmed from Biss’s role in a 2003 transaction between Hong Kong-based Cyberian Enterprises Limited and a U.S. marketing company called BrandAid.
Biss represented Cyberian, which at the time said it wanted to buy millions of dollars worth of BrandAid shares, according to court documents.
BrandAid accepted the offer, and put shares into an escrow account for Cyberian to acquire.
But Cyberian did not actually have the funds to buy the stock.
Biss, according to a notice of suspension by the Virginia State Bar, misled BrandAid about the money and then orchestrated a campaign to help Cyberian take over the U.S. marketing company by replacing members of its board of directors.
Biss “made repeated assurances to BrandAid that he soon would receive funds from Cyberian to pay for the BrandAid stock … when in fact he should have known Cyberian would not be transmitting any funds,” the Virginia bar wrote in its decision to suspend Biss.
The bar found that Biss “committed a deliberately wrongful act that reflects adversely on his fitness to practice law.”
Ben DiMuro, an ethics lawyer in Virginia and former president of the Virginia State Bar in 2002 and 2003, said suspensions are rare.
“We would get about 3,500 complaints every year, and about 10 percent of those would lead to an investigation,” DiMuro said. “About 300 led to some sort of sanction, and maybe 20 would be suspensions.”
Biss served his one-year penalty, but in January 2010 had another month tacked on after the bar learned he had represented someone during his suspension.
In a case related to the one that led to Biss’ suspension, Biss was accused of further misconduct by another lawyer.
David Feingold, the lawyer who had represented Paul Sloan, an officer of BrandAid, sued Biss for slander on Jan. 31, 2006.
Feingold in a sworn affidavit in his suit said that Biss had approached Feingold multiple times and threatened to sue him unless he testified in yet another suit against his own client, Sloan, of BrandAid.
In Feingold’s sworn statement in his own 2006 lawsuit against Biss in a Palm Beach County court, Feingold said Biss offered to drop the lawsuit against Feingold if he would testify against Sloan.
“Feingold inquired as to what Biss could possibly sue about and Biss replied indicating that he was very creative and he would make something up if necessary,” the affidavit reads.
Feingold dropped the suit within the year.
Within a year of his suspension ending, Biss was before the Virginia State Bar Disciplinary Board, on a complaint from a case preceding his suspension. He was issued a Public Reprimand for Misconduct in October, and the ruling stemmed from what the bar deemed a conflict of interest.
Appealed his eviction
Biss’s reliance on the courts to settle disputes extends to his personal life, where he’s filed multiple appeals and a lawsuit in response to eviction notices.
Public records show Biss has been through two eviction proceedings at two residences over the past decade and hit with at least four IRS tax liens since 2006 over failures to respond to tax bills. The IRS issues a lien, a claim on a person’s assets, if a taxpayer neglects or deliberately fails to respond to a tax bill.
Biss has been sued by legal services providers for not paying his bills and cited by police multiple times over multiple years for failing to inspect and register his vehicles.
Biss and his wife last month lost an appeal of an eviction writ filed by longtime landlord Althea Randolph.
Biss and his wife were fighting eviction from the tree-shrouded farmhouse in Scottsville, Va., that they’d rented since 2006. Court documents show that landlord Randolph gave them legal notice in late April to vacate and when they failed to move out she filed an eviction notice in May.
A similar eviction notice, called an unlawful detainer suit, was filed against Biss in January 2016 by the owners of the nearby Westgate apartments but was settled months later, according to public records. Westgate officials and Biss declined to comment for this story.
Randolph’s eviction writ named both Biss and his wife on the original writ, and court documents show him on the original lease. But Biss was later dismissed as a defendant on appeal and the eviction notice proceeded against his wife.
Randolph won the original eviction filing and a judge later confirmed that decision. That came down on Dec. 13, when Judge Margaret P. Spencer on the Circuit Court of the County of Albemarle ruled against Biss’s wife and ordered her to pay $2,850 in back rent and $3,500 in legal fees.
The judge’s final order noted that Randolph properly gave notice twice. “Defendant did not pay rent for May 2019 or any subsequent month,” the judge wrote in an order that appeared in public records on Dec. 17.
Asked about the eviction as he left a Dec. 20 hearing on the Nunes suit against McClatchy, Biss declined comment.
Court records show he and his wife moved out by Jan. 10, roughly eight months after receiving notice.
Days earlier, on Jan. 6, despite losing the eviction case, Biss filed a lawsuit against Althea Hurt and William Randolph on behalf of his wife. Hurt is Althea Randolph’s maiden name. She said she was unaware why the notice was filed that way and declined further comment.
Previous legal work
Neither Biss nor Nunes has said how they joined forces, and it’s unclear how Nunes is paying him.
There are go-to places for specialized representation in defamation suits, such as Atlanta-based L. Lin Wood, a prominent libel attorney or Clare Locke LLP in Washington, D.C. Public figures often hire Clare Locke to try and quash negative stories before they appear.
A review of past cases involving Biss suggests defamation lawsuits are a relatively new area of practice for the Canada-born, former Princeton University soccer and hockey star who has long run his own Virginia small law practice in the Richmond and Charlottesville areas.
Much of his work has been for clients in Virginia, where he was licensed to practice in September 1991. Last March he lost an appeal on behalf of a Charlottesville mother whose children were taken by the Department of Social Services. The judge shot down a request from Biss to have the state award him attorney fees.
But Biss has also defended people accused by the Securities and Exchange Commission of fraud, and handled trademark infringement complaints. That was before coming to national attention for libel suits with Nunes.
That latter profile page includes self-published criticism of the media, such as an Oct. 13, 2017, piece entitled Fabricate, Reinvent, Repeat. In it he offers that newspaper reporters “are notorious self-promoters” who “generally distort the truth” with the goal of selling more ads.
A week later he self-published a piece suggesting Google, Twitter and Facebook are wrongly immunized from civil liability when they re-publish false or defamatory statements.
“If Google is going to provide the platform, entice and incentivize people financially to publish content on the Internet, this socially responsible giant should be held accountable,” Biss concluded. “The problem is Google has no skin in the game.”
Biss often uses strong language in drafting complaints, such as in Nunes’ first lawsuit filed against Twitter last March, when Biss said Nunes suffered “an orchestrated defamation campaign of stunning breadth and scope, one that no human being should ever have to bear or suffer in their whole life.”
The language is not just on Nunes’ behalf.
In another defamation case Biss filed in Virginia in 2017 against Jason Goodman – who runs the Crowdsource the Truth channel on YouTube – Biss wrote that the case was not about the First Amendment, but about, “the conscious and deliberate destruction of a man’s untarnished name and impeccable reputation by social media vigilantes and trolls.”
Who is Devin Nunes’ Cow?
Since a 1964 Supreme Court ruling, comments about and against political figures have generally not been considered libelous unless malice could be proven.
Parody speech has also historically been protected. But Biss has made it a priority to obtain the identity of a Twitter account known as Devin Nunes’ Cow, even if it means using other Biss cases to get it.
Nunes and Biss are suing the cow account – alongside Twitter, another parody account and a Republican strategist – in one case in Henrico County, Virginia. Nunes alleges the anonymous author of the cow account defamed Nunes by calling him a “treasonous cowpoke” and using other puns to mock the congressman.
Biss has sought information about the cow account’s author from both Nunes’ lawsuit against Twitter and an unrelated lawsuit against a prominent whistleblower advocate filed in the Eastern District of Virginia. He’s issued subpoenas for documents about the cow account in both cases.
The subjects of all those subpoenas and requests have declined.
“No reasonable person would believe that Devin Nunes’ cow actually has a Twitter account, or that the hyperbole, satire and cow-related jokes it posts are serious facts,” reads one subpoena response filed in Virginia’s Henrico County Circuit Court.
Goodman, the YouTube channel host Biss is suing, recently submitted a court motion alleging Biss solicited other people to file lawsuits against him to overwhelm him with legal costs.
Goodman, who is representing himself, included an email that Biss’s wife allegedly sent to a potential plaintiff.
“I’m guessing a half a million bucks they will throw at you just to make this go away = catch it!” Biss’s wife wrote.
In a response to that motion, Biss said Goodman “speculates wildly” about a conspiracy that doesn’t exist. He did not address the email from his wife that Goodman cited as evidence.