Devin Nunes Loses Yet Another One Of His SLAPP Suits
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A little over a year ago, a DC watchdog group had asked the Office of Congressional Ethics to investigate Rep. Devin Nunes over his total failure to disclose who the hell is paying for all of his various frivolous SLAPP suits. As the group, Campaign Legal Center noted, Congress is forbidden from receiving free legal services unless they have set up a Legal Expense Fund -- and at least at the time of the investigation request, Nunes had not done so, despite having filed a bunch of lawsuits over the previous year.As far as I can tell, nothing ever happened regarding that, but the issue is again worth exploring. Devin Nunes has been losing his lawsuits (badly) but continuing to push on with them anyway. In the fall of 2019, Nunes sued Fusion GPS and Glenn Simpson claiming racketeering (It's Not RICO, Dammit), because (he bizarrely claimed) they were harassing Nunes by filing a different ethics complaint against him. Nunes had some silly story about how Fusion GPS was trying to "interfere" with his "investigation." The "investigation" being Nunes' laughable attempt to argue that the Steele Dossier was illegal.Anyway, a year ago that case was easiliy dismissed with the court warning Nunes' lawyer Steven Biss that, while he could refile, if they didn't add more substance to the complaint, they may face Rule 11 sanctions. In a move that will surprise no one, Biss/Nunes still filed an amended complaint last April. Now the case has been dismissed again. For reasons that I'm not clear on, over the summer the case was reassigned to a different judge, and that's why the new dismissal is from Judge Rossie Alston, rather than Judge Liam O'Grady, who handled the first dismissal.The judge does the basic "It's Not RICO, Dammit" analysis to highlight that the Nunes/Biss claims of racketeering are ridiculous:Here,Plaintiff fails to plausibly plead an association-in-fact enterprise because the Second AmendedComplaint does not sufficiently allege the three structural features critical to support a RICOenterprise allegation. Both the Second Amended Complaint and Plaintiff's Opposition merelyrecite the elements of an association-in-fact enterprise and allege only conclusory facts.Critically, no reading of the facts alleged in Plaintiff's Second Amended complaint cansupport a finding that an enterprise operated with the purpose or relationships the law requires.... Instead, the Second Amended Complaint is best read toallege that Defendants and the three other individuals and entities named in that document engagedin independent, parallel conduct directed at Plaintiff Nunes. By Plaintiff's own telling, the entitiesand persons involved had different memberships and methodseven assuming they all shared thesame generalized motive to harm Plaintiff's political career. On its face, this is insufficientevidence of an association-in-fact enterprise with a shared purpose.... The only connection Plaintiff alleges between Defendants and Campaign for Accountability,McClatchy, and Mair is that Defendants chose CfA, Mair and McClatchy as fronts or 'cut-outs'to carry out the obstruction scheme.... These rote allegations that Defendants operatedand conducted the business of the enterprise are unsupported by any specific facts. At best,Plaintiff alleges consciously parallel conduct, which is not sufficient to satisfy Twombly'spleading standard[.] There's a lot more, but this is the same reason the original complaint got tossed out. The judge also notes that the basis of Nunes' RICO claim is that... people filed an ethics complaint against him. The judge appears to raise his eyebrows at this concept:Before analyzing the specific predicate acts, the Court acknowledges that Plaintiff's caserests on importing a wholly novel set of factsethics complaints submitted against a sittingcongressperson and providing research on that lawmaker to a news outlet for publicationinto thecivil RICO context. Over and over and over again, the court finds that Biss just made a bunch of unsubstantiated claims that can't possibly be RICO. And thus, in the end:All told, Plaintiff has failed to establish that the facts set forth in his Second AmendedComplaint add up to form a single RICO predicate act. The Court reaches this conclusion havingconsidered, as it must when deciding a motion to dismiss, the facts alleged in the light mostfavorable to Plaintiff Given that Judge O'Grady had already warned Biss and Nunes that filing more of this nonsense may lead to Rule 11 sanctions, perhaps you'd expect Judge Alston to follow through on that threat. Unfortunately, as is all too often the case, the judge has decided to go easy on Biss (despite the fact that he keeps filing so many sketchy lawsuits). The defendants in the case even highlighted to the judge Biss' and Nunes' track record of filing all these bogus SLAPP suits. And, even so, the court lets them off the hook:The Court declines to impose sanctions under Rule 11 at this time. The allegations madeby Plaintiff are serious. They just cannot and do not confer authority to this Court to address thecomplaints Plaintiff has made. In this regard, Plaintiff's counsel is reminded that litigationasserted in bad faith or for the purpose of harassment may be met with sanctions. ... Here, Plaintiff's counsel has filed threecomplaints in this case since September of 2019. The Court has not issued a favorable ruling onany of the claims Plaintiff asserts. Accordingly, the Court's dismissal of Plaintiff's RICO claimsis with prejudice and without leave to amend because in the Court's view, amendment would befutile So... why no sanctions? No further explanation is given. This is, unfortunately, par for the course. As we've seen over and over and over again, lawyers tend to have to have a reputation for filing dozens of these kinds of bogus lawsuits before courts finally start issuing sanctions.So, no, Devin, it's not RICO, and you and Biss got off lucky (again!) this time, even though you still lost, like you've lost all of these lawsuits. And many of us are still wondering, who is paying for all of this wasteful, vexatious litigation?
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posted at: 12:00am on 06-Apr-2021
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Microsoft/Xbox Pushing Backwards Compatibility Hard, With Specific Nods Towards Game Preservation
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If it seems like the topic of preserving antiquated video games as art keeps coming up, that's because it's very much starting to become a popular topic in the gaming industry and among the gaming public. The headwinds facing the proper preservation of this ever-growing subsect of culture are fairly clear. The very tools that have been used by fans to keep these older games alive and playable have too often been viewed as a threat to some gaming companies. As with all things in life, copyright is also getting in the way, as are some industry groups coming out against vile threats like museums and curation groups looking to keep old games alive for the public. Even preserving old game manuals is a prospect that only survives because of fair use.One recent suggestion we discussed was to make it part of the the game development culture to publish the source code for any PC game publicly. If this sounds like a bonkers idea that would risk a game developer all of its income, well, Doom did this, so no you're wrong. But, as we also discussed recently when Sony officially announced it was ceasing support of the PlayStation Store for PSP, Vita, and PS3 owners, this suggested cure does zero for console games.Well, I can't say for sure that whoever is crafting PR and messaging for Microsoft's Xbox is a Techdirt reader, but you sure might think so if you see how they're crafting the messaging around their big backwards-compatibility push.Backward compatibility has been a key feature of Microsoft’s Xbox Series X/S marketing efforts, with the company promoting the consoles’ ability to play a wide range of original Xbox, Xbox 360 and Xbox One games. And on Tuesday, Microsoft brought backward compatible titles to Xbox cloud gaming for the first time by making a number of classic games from Rare, Bethesda and others available to Android users with an Xbox Game Pass Ultimate subscription.“As time goes on, it becomes more important than ever that we ensure gaming icons and classics are preserved for new and old players alike,” the official Xbox Twitter account posted on Wednesday. “Whether your first time playing Morrowind is from 2002 on your Xbox or 2021 on your phone, we’re excited to share these experiences with you!” Two immediate thoughts leap to mind reading this. First, to be completely realistic, this isn't a full solution to the problem of console game preservation, either. One console keeping older games from a handful of developers available by continuing to sell them on modern hardware and platforms is not in any way the same thing as making sure that curators or museums that focus on the art of video games can do the work they should be doing. But it is also certainly a step in the right direction and shows a path where developers and publishers, if they elect to put forth the effort, can work with other platforms and providers to keep aging games available and playable. It's a baby step, but it's a step.But the more important aspect of this is that the chatter about game preservation is clearly building into the lexicon of the industry. When you get the Xbox Twitter account talking about it, well, it means some people within the industry are paying attention to it. And it wasn't just one Xbox Twitter account getting this message out there.In an Xbox Wire interview this week, Rare studio head Craig Duncan said backward compatibility is playing an “essential” role in preserving video game history.“There are just a bunch of inherent complexities when generations and platforms change and being able to relive games you played previously and fondly remember is important,” he said. "Those games contain memories and moments you can share with others and being able to do that quickly by just selecting the game in Xbox Game Pass is easy and just works with no fuss. The alternative is firing up an older console, finding all the cables, and preserving the discs so they still work (which some collectors do as a passionate hobby),” Duncan continued. “Making the history of games available to everyone and making your game library a click away is awesome.” Right on message, almost as though this were part of a messaging campaign at the worst, or the output of a philosophy from Microsoft at best. Either would be a step in the right direction.Again, is this Microsoft committing to help preserve games in the museum sense? Not at all. But keeping older games available and playable is the primary goal here and any help the company wants to be to make sure this culture and art aren't lost to time is welcome.
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posted at: 12:00am on 06-Apr-2021
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