VIRGINIA:

DEVIN G- NUNES, . i 

Plaintiff,

 



THE MCCLATCHY COMPANY,
ELIZABETH A. MAIR, and
MAIR STRATEGIES LLC,

Defendants.

 

MEMORANDUM OF LAW
IN SUPPORT OF DEMURRER
BY ELIZABETH A. MAIR AND MAIR STRATEGIES LLC



  

am a
IN THE CIRCUIT COURT OF ALBEMARLE 

. INTRODUCTION

This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of
Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while
in public of?ce?and for sharing an opinion critical of him with a reporter at McClatchy.

Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to
hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits
that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential
element of any conspiracy claim is an agreement?a meeting of the minds?to carry out unlawful
acts together. And the Complaint comes nowhere close to adequately alleging the existence of
such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how
this agreement supposedly came into being; it papers over those defects with conclusory assertions;
and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations.
Simply put, sharing political opinions with a newspaper?and then tweeting, retweetin g, and liking
relevant articles by that newspaper?do not suggest the existence of an illegal conspiracy. They
are signs that we live in a democracy where people can express political opinions and criticize
elected of?cials on social media platforms. For good reason, no court has ever upheld a conspiracy
theory?based mainly on tweets and retweets?like the one that Nunes has advanced here.

That is reason enough to dismiss the Complaint. Yet there is more: in order to impose
liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately
allege that McClatchy actually defamed him. None of the alleged defamatory statements described
in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact
words and so must be dismissed; Nunes has failed to allege that any of them was published with

actual malice; and most of them are categorically non?actionable as a matter of law.

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Accordingly, the Complaint should be dismissed for two reasons: (1) it fails to adequately
allege a conspiratorial agreement between Mair and McClatchy, and (2) it fails to allege that Mair
and McClatchy actually engaged in any defamation as part of this supposed agreement.

BACKGROUND

I. THE PARTIES

Representative Devin Nunes has served in the United States House of Representatives
since 2003, and he currently represents California?s 22nd Congressional District. (Compl. 1] 4.)

Defendant the McClatchy Company is a publicly traded media company that owns
newspapers and news websites, including the Fresno Bee. (Id. 1111 On February 13, 2020,
McClatchy ?led for Chapter 11 bankruptcy in the Southern District of New York.

Liz Mair is a right?of?center political commentator and communications strategist. (Id.
11 16.) She owns Mair Strategies LLC, a communications and public relations ?rm. (Id. 11 18.) For
convenience, we refer to both Liz Mair and Mair Strategies LLC together as ?Mair.?

II. THE ALLEGATIONS

Nunes? core allegation is that McClatchy defamed him in an effort to sabotage his inquiry
into the 2016 Clinton campaign and to derail his own 2018 congressional reelection campaign.
(Compl. 2, Nunes further claims that McClatchy made these defamatory statements in
furtherance of an unlawful conspiracy with Mair. (Id. 2, 17.)

A. The Yacht Article

Nunes? allegations principally concern an article published by McClatchy on May 23,
2018, entitled yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser
event.? (Id. 11 10; Mackenzie Mays, A yacht, cocaine, prostitutes: Winery partly owned by Nunes

sued after fundraiser event, THE FRESNO BEE (May 23, 2018) (Ex. A) (hereinafter ?Yacht

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 This article reported on a California lawsuit brought by Alene Anase, an employee of
the Alpha Omega Winery?in which Nunes was (and still is) a limited partner. (Compl. ?11 11.) As
reported in the article, Anase alleged in her suit that the winery auctioned off a yacht cruise to raise
money for charity and, on that cruise, guests used cocaine and had sex with prostitutes who
appeared to be underage. (Id. 1] 11.) The Yacht Article remarked on Nunes? involvement in the
winery: ?While Nunes? ties to Alpha Omega made national headlines last year because it was
discovered the winery sold wine to Russian clients while the congressman was at the helm of a
federal investigation of Russian meddling into the presidential election, there has been little
mention of the lawsuit.? (Id. '11 14(c) (hereinafter ?Wine McClatchy later edited this
statement to read as follows: ?Nunes? ties to Alpha Omega made national headlines last year
because it was discovered the winery sold wine to Russian clients in 2013. The discovery came
amid Nunes? ongoing involvement in a federal investigation of Russian meddling into the
presidential election.? (Id) Nunes alleges that the title of the Yacht Article, and various statements
within the article, were false and defamatory and were published as part of a political attack against
him. (Id. 1111 12, 14.)
B. Other Alleged Defamatory Statements

Nunes claims that McClatchy published ?ve other defamatory statements about him:

(1) The Bee Editorial. On May 31, 2018, the Fresno Bee Editorial Board published an
op-ed that included this statement about Nunes? response to the Yacht allegations:

[O]n the one hand, you can give your account of what you understood the situation

to be, explain how what happened on the boat was repugnant to your values, and

explain why you continue to be an investor. Chances are the answers would be

straightforward. The affair would likely fade from View. But if you are Devin

Nunes, you choose to be silent and offer no answers to The Bee?s questions.?
McClatchy further stated that ?it would be hard to imagine he [Nunes] did not learn

 

1 On review of a demurrer, the court may consider any document ?essential to? the Complaint. Station 2, LLC v.
75 Va. Cir. 179, 190, 2008 WL 8083417, at *2 (2008).

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of this ill?fated cruise soon after it happened since Robin Baggett, the winery owner,
is a good friend of the congressman?s who invited him to invest in the ?rst place.

(Compl. Nunes alleges that this statement defamed him by implication. (1d)

(2) The ADLF Article. On June 8, 2018, McClatchy published a story that quoted from
an Of?ce of Congressional Ethics complaint ?led against Nunes by the American Democracy
Legal Fund (ADLF), seeking an ?investigat[ion] as to whether Nunes was on the yacht.? (Compl.
11 Nunes alleges that the ?ethics complaint was a sham,? McClatchy ?had no business
republishing the ADLF ethics complaint,? and McClatchy defamed him by republishing it. (Id)

(3) The Fake News Video. On June 14, 2018, McClatchy accused Nunes of lying and
spreading ?fake news? about the Fresno Bee in a YouTube video. (Compl. 11 Nunes alleges
that this accusation was itself false and defamatory. (Id)

(4) The Swamp Accountability Article. On July 1 1, 2018, McClatchy published a story
about Congressional ethics complaints ?led against Nunes by the Campaign for Accountability
and the Swamp Accountability Project, which is operated by Mair. (Compl. 11 Nunes
alleges that ?[t]he complaints were total shams? and that McClatchy defamed him by reporting on
the ethics complaints without stating that Mair is an opposition research operative. (See id.)

(5) The FEC Quote. On July 19, 2018, McClatchy published an article that ?accused
Nunes of misusing campaign funds.? (Compl. 11 Mair was quoted in it as follows: ?[T]he
fact is, the EC is not going to look favorably on a dude who uses his tax-exempt political entity
like a personal slush fund, ?ying himself to Boston to watch [the Celtics] while apparently
engaging in no activity relevant to the purpose of the political organization.? (1d. 1] 17.)

C. Nunes? Allegations Concerning Mair
On March 19, 2019, Nunes sued Mair, Twitter, and two anonymous Twitter users in the

Circuit Court for Henrico County. See Nunes v. Twitter, Inc, at al., No. CL19-1715, Compl.

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(Henrico Mar. 19, 2019). There, his principal allegation against Mair is that she defamed him by
tweeting about the Yacht Article. 10!. at 7. Judge Marshall recently dismissed Nunes? claims
against Twitter. See Nunes v. Twitter, Inc, et al., No. CL19-1715, Dismissal Order with Prejudice
(Henrico July 24, 2020). Mair has filed her Demurrer and Plea in Bar in the Henrico County case
on the same day that she has filed this brief (August 3, 2020).

In this litigation, as discussed above, Nunes does not allege that Mair committed
defamation. Instead, the only basis on which he seeks to impose liability is a theory of common
law civil conspiracy. Broadly speaking, Nunes alleges that at some point, in some manner, Mair
entered into a conspiracy with McClatchy and is therefore liable for McClatchy?s alleged acts of
defamation. (Compl. 1111 33?37.) More specifically, Nunes? conspiracy allegations against Mair
are based on the fact that Mair tweeted and retweeted McClatchy?s articles concerning Nunes,
sometimes on the same day those articles were published. (See id. 11 17, 19.) Nunes also alleges
that ?Mair pitched false narratives? and ?egregious soundbites to McClatchy,? which ?simply
republished [them] without any fact?checking.? (Id. $1 17.) The only purported example of such
conduct alleged in the Complaint is the above-cited FEC quote published by McClatchy.

Presumably to further his apparent goals of sti?ing and chilling criticism of his conduct
while in of?ce, Nunes requests as compensatory damages the absurd sum of 1 50 million, punitive
damages of $350,000, and an ?injunction against McClatchy.? (1d. 1] 42.) For reasons that follow,
Mair demurs to the Complaint and respectfully requests dismissal of the claim against her.

STANDARD OF REVIEW

?To survive a challenge by demurrer, a pleading must be made with sufficient de?niteness

to enable the court to find the existence of a legal basis for its judgment.? Squire v. Virginia Hows.

Dev. Aux/1., 287 Va. 507, 514 (2014). On a demurrer, the allegations in a well?pleaded complaint

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are taken as true, Parker v. Carillon Clinic, 296 Va. 319, 330 (2018), but a plaintiff is entitled only
to ?reasonable? inferences from the facts alleged, Coward v. Wellmont Health Sys, 295 Va. 351,
358?59 (2018). ?Distinguishing between reasonable and unreasonable inferences is ?a context?
speci?c task that requires the reviewing court to draw on its judicial experience and common
sense.? A.H. Church ofGoa? in Christ, Inc, 297 Va. 604, 613 (2019) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)). The court may not accept ?conclusions of law camou?aged as factual
allegations or inferences,? Sweely Holdings, LLC v. SanTrust Bank, 296 Va. 367, 371 (2018), or
?allegations that are . . . contradicted by other facts pleaded,? Parker, 296 Va. at 330.
ARGUMENT

The Complaint fails to adequately allege a conspiratorial agreement between Mair and
McClatchy. It also fails to allege that any of McClatchy?s statements were in fact defamatory.
Each of these deficiencies independently requires that the Complaint be dismissed.

I. FAILURE TO ALLEGE A CONSPIRATORIAL AGREEMENT

A. Legal Standard

In Virginia, a. common?law civil conspiracy ?consists of two or more persons combined to
accomplish, by some concerted action, some criminal or unlawful purpose or some lawful purpose
by a criminal or unlawful means.? Gelber v. Glock, 293 Va. 497, 533?34 (2017). To state a
conspiracy claim, a plaintiff must allege (1) that an ?underlying tort was committed,? id; (2) an
?agreement . . . to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful
means?; and (3) ?that this agreement caused damage.? Lesner Poinre Condo. Assn Inc. v.
Harbour Point Bldg. Corp, 61 Va. Cir. 609, 2002 WL 32182354, at *7 (Va. Beach 2002).

The second element?an unlawful agreement?is the essence of a civil-conspiracy claim.

A plaintiff must adequately allege ?an agreement or understanding willingly entered . . . for the

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accomplishment of an unlawful purpose.? Long v. Old Point Bank ofPhoebus, 41 Va. Cir. 409,
1997 WL 33616272, at *17 (Norfolk 1997). In other words, conspiracy can exist without an
agreement.? Johnson v. Kaugars, 14 Va. Cir. 172, 1988 WL 619378, at *4 (Richmond 1988).

To avoid freewheeling accusations of hidden conspiracies, Virginia courts have long held
that ?common law conspiracy claims must be pleaded with particularity and not mere conclusory
language.? TradeStaff& Co. v. Nogiec, 77 Va. Cir. 77, 2008 WL 8201050, at *5 (Chesapeake
2008); see also Peterson v. Bass, 48 Va. Cir. 206, 1999 WL 33727578, at *3 (Warren 1999) (noting
that the requirement that a plaintiff ?[p]lead[] specific facts? to support her claim ?is particularly
important in fact specific cases like . . . civil conspiracy?). is not enough merely to state that
a conspiracy took place,? but instead the plaintiff must precisely allege ?some details of time and
place and the alleged effect of the conspiracy.? Johnson, 1988 WL 619378, at In other words,
to survive a demurrer, a plaintiff must plead ?speci?c facts showing actual agreements.? Lesner
Pointe Condo. Ass 2002 WL 32182354, at *19.

Bowman v. State Bank of Keysvz'lle, 229 Va. 534, 541 (1985), exempli?es this point. There,
the plaintiffs claimed that the directors of a bank conspired with an of?cial of another company to
wrongfully terminate their employment. See id. These allegations, however, were too
?conclusory? to support the existence of a conspiratorial agreement: the fact that the of?cial
threatened the plaintiffs, and then attended the meeting where the bank directors decided to ?re
the plaintiffs, was insufficient to infer the existence of any agreement between him and the bank?s
directors. Id. As the court emphasized, ?[t]he conspiracy theory [was] asserted in mere conclusory
language and the argument in support of the theory is based on inferences that are not fairly and

justly drawn from the facts alleged.? Id. (affirming grant of demurrer).

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A similar rule governed the outcome in Johnson v. Kaugars, where a dentist alleged that
the defendant conspired with others to injure his practice by sending the state dental board false
information. 1988 WL 619378, at Judge Markow concluded that the dentist?s allegations of
a conspiratorial agreement were too conclusory, since they lacked any ?details of time and place
and the alleged effect of the conspiracy.? Id. at He emphasized that ?it is not enough merely
to state that a conspiracy took place,? and that plaintiffs must allege that the ?co?conspirators
formally or actually met or verbally agreed to engage in [unlawful] conduct.? Id. at see also
Long, 1997 WL 33616272 at *17 (?Simply pleading that [Defendant] ?caused? the trustee to take
some action does not provide any evidence that [Defendant] and the Trustee agreed to accomplish
this act?); Connor v. Real Title Corp, 165 F.2d 291, 294 (4th Cir. 1947) (concluding that
allegations of ?a vicious conspiracy and collaboration? were insufficient because they were ?much
too vague and general?). Indeed, in a recent conspiracy case that Nunes ?led in the United States
District Court for the Eastern District of Virginia, Judge O?Grady dismissed Nunes? claims in a
succinct, two-page order, reasoning that they included ?many rote statements of law and
conclusory allegations which fall short of satisfying the [federal pleading standard].? Order, Dkt.
No. 34 at 2, Nunes v. Fusion GPS, No. 19 Civ. 1148 (ED. Va. Feb. 21, 2020). Ofcourse, Virginia
courts evaluate conspiracy allegations at the pleading stage with the same rigor as federal courts.
See Church ofGod in Christ, Inc, 297 Va. at 613.

B. Nunes? Allegations Are De?cient as a Matter of Law

Under the cases recited above, Nunes? conspiracy allegations are far too conclusory to
survive a demurrer, as he fails to adequately allege any agreement between Mair and McClatchy.

Nunes seeks to hold Mair liable for McClatchy?s statements by alleging that she and

McClatchy ?were engaged in a joint effort . . . to defame him.? (Compl. 1] 19.) But this vague

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allegation of a ?joint effort? is not enough by itself, since it alleges a legal conclusion?namely,
that there was a conspiratorial agreement. See Bowman, 229 Va. at 541. The key question is what
?speci?c? factual allegations support this conclusory claim. Peterson, 1999 WL 33727578, at 
The Complaint offers only two such allegations. First, it alleges that ?Mair pitched false
narratives? and ?McClatchy printed them.? (Compl. 11 17, Here the Complaint refers
to two McClatchy articles, one of which merely quotes from a public Congressional ethics
complaint ?led by Mair, and the other of which quotes Mair?s opinion on how the Federal Election
Commission (FEC) might react to certain accusations against Nunes. Second, Nunes alleges that
?the tweets, retweets, replies and likes by Mair and McClatchy reporters demonstrates that
McClatchy and Mair were engaged in a joint effort.? (Compl. 1] 19; see also id. 1111 17, 26(e) n22.)

On their face?and as a matter of law?these factual allegations are insuf?cient to infer
the existence of a conspiratorial agreement. Nowhere does Nunes allege the ?time and place?
when this agreement was supposedly created. Johnson, 1988 WL 619378, at 3. Nor does he
allege that Mair and McClatchy ever ?formally or actually met or verbally agreed to engage in
[unlawful] conduct.? Id. at Under the cases cited above, these de?ciencies are decisive: Nunes
fails to clear the minimum requirements for pleading a conspiratorial agreement.

Unable to satisfy Virginia law, Nunes seeks to cobble together a conspiracy theory from
two McClatchy articles that quote Mair, plus Mair?s pattern of retweeting articles. This effort, too,
comes nowhere close to creating a reasonable inference that Mair and McClatchy conspired.

Starting with the quotations, it would defy common sense to infer a conspiracy from the
fact that McClatchy reported on (and quoted from) an of?cial, public ethics complaint that Mair
submitted against Nunes. The ?ling of a formal ethics complaint against a Member of Congress

is an objectively newsworthy event; the fact that Mair wrote this ethics complaint and McClatchy

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reported on it does not re?ect a secret conspiratorial agreement.2 It is equally unreasonable to infer
a conspiratorial agreement based on the allegation that McClatchy printed a quote from Mair about
how the FEC might respond to certain accusations against Nunes. As Nunes concedes in the
Complaint, Mair is a well?known political operative. (Compl. 11 16.) She has been quoted on
political issues in a wide range of newspapers, magazines, and websites.3 None of the allegations
in the Complaint make it reasonable to infer that this particular quote, to this particular newspaper,
was somehow given in furtherance of some kind of illegal agreement to publish illegal statements
about Nunes. It simply cannot be the case that a newspaper is inferred to have entered into a
conspiratorial agreement with everyone it quotes in its articles and op?eds.4

This leaves Nunes? effort to infer a conspiracy from a series of ?tweets, retweets, replies
and likes by Mair and McClatchy reporters.? (Compl. 1] 19.) Nowhere does the Complaint allege
that this Twitter activity included any statements by Mair or McClatchy reporters referring to any
sort of mutual agreement. The Complaint instead asks the Court to infer an unlawful agreement
from the bare fact that Mair tweeted, retweeted, and liked McClatchy pieces that were critical of
Nunes. This is unsupportable as both a matter of law and logic. People use social media with

many motives and ?engage with one another in a variety of ways.? Knight First Amendment Inst.

 

2 Unsurprisingly, McClatchy was not the only news organization to publish coverage addressing Mair?s ethics
complaint against Nunes. See, e. Aris Folley, Activist group trolls Nunes with new sneakers to wear while ?evading
questions THE HILL (July 26, 2018 11:25 AM).

3 See, Liz Mair, Who Speaks for the Mountain West?, NY. TIMES (May 8, 2019); Liz Mair, The Trump
Presidency: A Success Story, U.S. NEWS AND WORLD REPORT (Dec. 21, 2017 10:55 Liz Mair, The Blue Wave
Happened Because Republicans Were Lazy, DAILY BEAST (Dec. 26, 2019 2:42 AM). To be clear, these articles are
cited not for the truth of any assertions they make, but merely for the fact of their publication. While assessing Mair?s
demurrer, the court may properly take judicial notice of the fact that Mair authored these articles and that the respective
sources published them, because such facts are ?capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.? Va. Sup. Ct. R. 

4 Nunes alleges that McClatchy did not fact?check Mair?s quote. (See Comp]. 1] 17.) But Mair?s quote is a statement
of opinion about what the FEC might do in response claims against Nunes, not a statement of fact subject to fact-
checking. In any event, not fact-checking this single quote from Mair hardly indicates an illegal agreement.

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at Columbia Um'v. v. Trump, 302 F. Supp. 3d 541, 551 (S.D.N.Y. 2018). For that reason, a person?s
decision to promote certain newspaper articles on social media generally cannot support a
reasonable inference that she has entered into an unlawful conspiracy with the newspaper that
published those articles. If that were the case, millions of Americans would be engaging in illegal
conspiracies every day. Nor is it nefarious for a political commentator to tweet articles from a
newspaper in which she has previously been quoted once or twice; such commonplace conduct
does not reasonably imply a secret plot with the newspaper. Accordingly, the allegations in the
Complaint offer no basis whatsoever for inferring an actual, specific meeting of the minds between
Mair and McClatchy that resulted in an agreement to defame him.

This conclusion is consistent with (and follows from) precedent. We are aware of no case
upholding a conspiratorial agreement based on allegations resembling those here. In contrast,
courts have repeatedly held that conspiracy allegations arising from supposedly suspicious patterns
of social media activity fail to adequately allege a conspiratorial agreement. See, e. g, Alharbi v.
Miller, 368 F. Supp. 3d 527, 568 (E.D.N.Y. 2019) (dismissing conspiracy claim where plaintiffs
alleged, among other things, that one defendant had ?retweeted anti?Muslim propaganda? in a
manner consistent with the alleged conspiracy); Sparrow Fund Mgmt. LP 12. MiMedx Grp., Inc,
No. 18 Civ. 4921, 2018 WL 8545604, at *9 (S.D.N.Y. Dec. 14, 2018) (dismissing conspiracy claim
based on the ?sheer timing of statements? by defendants on social media); Ascend Health Corp. v.
Wells, No. 412 Civ. 83, 2013 WL 1010589, at *11 (E.D.N.C. Mar. 14, 2013) (dismissing
allegations of conspiracy where defendant allegedly ?re?posted others? defamatory statements [on
her blogs]? and holding that such allegations of online activity do ?not support an inference that

defendants speci?cally intended to agree amongst themselves to defame plaintiffs?).

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At bottom, the Complaint seeks to punish Mair for a perfectly ordinary exercise of her free
speech rights. That is dangerous. There are many elected of?cials in this country. Most of them
will, at some point, face strong criticism in local newspapers. And that criticism will be shared
and debated on social mediagespecially by people who make their living in politics. This is how
a democracy is supposed to work. By asking the Court to infer that such conduct suggests an
illegal conspiracy, Nunes would expose Mair, and other private citizens, to the chilling threat of
litigation whenever they retweet articles criticizing him and make statements opposing him. This
theory de?es reason and common sense. It is inconsistent with principles of our constitutional
system. And it is contradicted by cases dismissing similarly ?awed conspiracy allegations at the
demurrer stage. For these reasons, the conspiracy allegations against Mair should be dismissed.

II. FAILURE TO ALLEGE DEFAMATION

Nunes? claims against Mair should also be dismissed because none of the six alleged
statements published by McClatchy are actually defamatory. See Gelber, 293 Va. at 534 
common law claim of civil conspiracy generally requires proof that the underlying tort was
committed?). To state a claim for defamation, Nunes must allege publication of (2) an
actionable statement with (3) the requisite intent.? Shaecher v. Bou?aalt, 290 Va. 83, 91 (2015).
The Complaint fails to meet this standard: a majority of the alleged statements are not pleaded in
their exact words or are not actionable as a matter of law; and none of the statements is alleged to
have been published with the requisite intent (namely, actual malice).

A. Failure to Satisfy the ?Exact Words? Pleading Requirement

It is blackletter law that defamation pleadings ?must purport to give the exact words? upon

which a claim is based. Fuste v. Riverside Healthcare Ass?n, 265 Va. 127, 132, 134 (2003)

(quoting Federal Land Bank of Baltimore v. Birch?eld, 173 Va. 200, 215 (1939)). General

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allegations are insuf?cient, even if they include ?a few small quotations.? Owens v. DRS Auto.
Fantomworks, Inc, 87 Va. Cir. 30, 2013 WL 9419657, at *2 (Norfolk 2013). The words provided
must be exact?and must be provided with suf?cient ?context with which to interpret their
meaning.? Id. Failure to satisfy this ?exact words? requirement requires dismissal. Id.

Four statements in the Complaint must be dismissed on that basis. As to the ?Fake News
Video,? the Complaint vaguely describes a YouTube video and quotes only two exact words (?fake
news?) from that video without providing their speci?c context. (Compl. 11 As to the
ADLF Article, the Complaint provides only two brief quotes without context?one attributed to
the treasurer of the ADLF and the other a sentence fragment reporting that ADLF asked the Of?ce
of Congressional Ethics to ?investigate whether Nunes was on the yacht.? (Id. 11 As to the
Swamp Accountability Article, the Complaint includes only a couple of sentence fragments g,
?anti?Trump group in without context and without specifying that these phrases are in fact
allegedly defamatory. (Id. 11 Finally, the FEC quote attributed to Mair starts mid?sentence
and is alleged without any surrounding words or speci?c context. (Id. 17, This is exactly
the form of imprecise pleading forbidden by Virginia?s ?exact words? requirement; the
Complaint?s defamation claims based on each of these statements must therefore be dismissed.
See Owens, 2013 WL 9419657, at *2 (granting demurrer for failure to plead exact words).

B. Failure to Allege Actionable Statements

For a statement to be ?actionable,? it must be false and defamatory. uste, 265 at 132?33.
A statement is false only if it contains speci?c, provably false assertions of fact; statements of
opinion and political hyperbole cannot be false. Cashion v. Smith, 286 Va. 327, 336, 339?40
(2013). A statement is defamatory if it ?imputes the commission of a criminal offense involving



moral turpitude for which a party may be convicted,? Imputes an un?tness to perform the duties

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of a job or a lack of integrity in the performance of the duties,? or ?prejudices the party in her
profession or trade.? Yeagle v. Collegiate Times, 255 Va. 293, 297 n.2 (1-998). ?[E]nsuring that
defamation actions proceed only upon statements which may actually defame a plaintiff is an
essential gatekeeping function of the court.? Pendleton v. Newsome, 290 Va. 162, 172 (2015).
While a statement may be defamatory by implication, that rule applies only Where the challenged
assertion is ?reasonably capable? of supporting a defamatory meaning. Webb v. irginian?Pilot
Media Companies, LLC, 287 Va. 84, 89 (2014). ?[T]he meaning of the alleged defamatory
language cannot, by innuendo, be extended beyond its ordinary and common acceptation, nor can
innuendo ?extend the meaning of the words used, or make that certain which is in fact uncertain.?
Id. at 89?90. Here, the Yacht Article, Bee Editorial, Swamp Accountability Article, and ADLF
Article are non-actionable as a matter of law because they are not reasonably subject to a
defamatory interpretation, they express mere opinions, or they are protected by the fair report
privilege.

1. The Yacht Article: On its face, this article does not accuse Nunes of wrongdoing. He
thus resorts to alleging that it defamed him by implication?that its ?gist? was that he ?was
involved in the cocaine/sex fueled ?fundraiser.?? (Compl. 11 12.) Nunes asks the Court to draw
this inference from photos of him in the article and the article?s headline: Yacht, cocaine,
prostitutes: Winery partly owned by Nunes sued after fundraiser event.? But that inference
is unsupported by the plain language of the article. The headline states only that Nunes is a partial
owner of a winery that has been sued. The article itself then explicitly states that the cruise was a
?charity fundraiser? and quotes the winery?s communications director as stating ?no one aboard
the yacht that night had any connection to the winery or its owners.? (Id. see also Webb,

287 Va. at 90 (noting that ?article disclaimed [defamatory] implication by quoting the

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spokesperson?s denial?). In light of these statements, the Yacht Article does not imply that this
event was a political fundraiser for Nunes, that Nunes was aboard the yacht, or that Nunes was
involved with cocaine or prostitutes. It instead notes that serious allegations have been raised
against the winery in a civil lawsuit and raises questions about Nunes? ongoing investment in a
business facing such charges. That is valid journalism, not defamation.5

2. The Bee Editorial: Because this is an editorial, it is presumptively a statement of
opinion and thus non?actionable as a matter of law. See Robert D. Sack, Sack on Defamation 
423.1 (4th ed. 2011) (?If a statement appears in a place usually devoted to, or in a manner usually
thought of as representing personal viewpoints, it is also likely to be understood?and deemed by
a court?to be nonactionable opinion?). Indeed, Nunes does not even allege that the editorial
contains any speci?c false statements of fact. And the editorial does not reasonably imply that
Nunes is ?dishonest, unethical and concealing information.? (Compl. 1[ It simply notes
that he chose ?to be silent and offer no answers to The Bee?s questions? even though ?the winery
owner? is ?a good friend of the congressman?s? and might have informed of him ?of this ill?fated
cruise soon after it happened.? It is obviously not defamatory for a newspaper to observe

that an elected of?cial refused to answer questions about what he knew and when he knew it.

 

5 Although the Complaint also alleges that the article includes falsehoods, these allegations collapse upon scrutiny.
First, noting that the winery had denied his involvement, Nunes alleges that the article falsely stated that unclear
. . . if [Nunes] was . . . af?liated with the fundraiser.? (Compl. 1i But a statement that ?uncertain[ty]? surrounds
Nunes? relationship to the event?after quoting the winery?s own public-relations statement about it and noting that
?Nunes? of?ce did not return requests for comment?iis not false and defamatory. See Pasta, 265 Va. 132-33. Indeed,
the existence of some uncertainty is both attributable to, and proven to be true, by Nunes? own refusal to comment on
the issue. Second, Nunes alleges that it was ?unclear . . . if [Nunes] was aware of the lawsuit.? (Id. 11 But
Nunes does not allege that he was in fact aware of the suit. Nor does he allege that he or his staff ever told the reporter
that he was aware of the suit. In any event, it is a mystery how this statement?that he was unaware of a lawsuit?
eould be actionable in defamation. Finally, Nunes alleges that the article contained an unrelated falsehood about the
timing of the winery?s sales to Russian clients. (Id. 1] But he then alleges that McClatchy corrected and
clari?ed the statement after the Alpha Omega Winery raised a concern about its accuracy. (Id) Notably, Nunes
alleges no falsity in the statement ?in its ?nal form.? (Id)

{2745278-[, 121223?00001?01} 15

3. The Swamp Accountability ADLF Articles: Like most states, Virginia holds that
statements are not actionable if they are shielded by a fair?report privilege. ?The publication of
public records to which everyone has a right of access is privileged, if the publication is a fair and
substantially correct statement of the transcript of the record.? Alexandria Gazette Corp. v. West,
198 Va. 154, 159 (1956). Notably, ?[t]he record?s privileged status is not [a]ffected by
incorrectness or falsity.? v. Servus Robots, L.L.C., No. LF-1517-3, 2000 WL 249246, at
*7 (Va. Cir. Ct. Mar. 2, 2000). The privilege can be negated only by Showing ?an abuse of the
privilege by malicious republication," but ?the court may ?nd from the undisputed facts, as a
matter of law, that the privilege was not abused.? Id; see also Danger?eld v. WA VY Broad, LLC,
228 F. Supp. 3d 696, 706 (ED. Va. 2017) (?It is for the court to determine, as a matter of law,
whether a statement is privileged . . . Generally speaking, the fair?report privilege "is based
on public policy to further the right of free speech by protecting certain communications of public
or social interests from liability for defamation that otherwise would be actionable.? Valle v.
Willie/c, No. 07 Civ. 11,2008 WL 2754975, at (W.D. Va. July 14,2008).

Under the fair?report privilege, the Swamp Accountability Project and ADLF Articles are
non?actionable. A Congressional ethics complaint lodged against a sitting Member of Congress
is ?a public record[] to which everyone has a right of access," Alexandria Gazette Corp, 198 Va.
at 159, and evokes the policy concerns giving rise to the fair report privilege, see Vaile, 2008 WL
2754975, at As a matter of law, Nunes cannot impose liability on McClatchy (or Mair) for
publishing verbatim quotes from a Congressional ethics complaint. And nowhere does he allege

that either of these articles failed to provide a ?fair and substantially correct" account of the ethics

{2745278-1, 121223?00001?01} 16

complaint; instead, he attacks the truth of the ethics complaint itself, which is irrelevant for
purposes of the fair-report privilege. See 2000 WL 249246, at *7.6

C. Failure to Allege the Requisite Intent

For the reasons given above, the Complaint fails to allege that any supposed conspiracy
between Mair and McClatchy resulted in the ?underlying tort? of defamation being committed.
Gelber, 293 Va. at 534. The Yacht Article and Bee Editorial are not actionable; the Fake News
Video and EC Quote are not alleged in their ?exact words?; and the ADLF and Swamp
Accountability Articles suffer from both of those defects. That should be the end of the matter.

Yet even if that were all mistaken, the defamation claim would still fail because none of
the alleged defamatory statements was published with the ?requisite intent.? Shaecher, 290 Va. at
91. Since Nunes is a public of?cial, the First Amendment requires him to adequately allege that
any defamatory statement was published with ?actual malice.? Gertz v. Robert Welch, Inc., 418
U.S. 323, 351 (1974). In other words, he must allege that it was published with ?knowledge that
it was false? or with ?reckless disregard of whether it was false or not.? New York Times Co. v.
Sullivan, 376 U.S. 254, 280 (1964); Jordan v. Kollman, 269 Va. 569, 576 (2005). As many courts
have af?rmed, newspapers are entitled to rely on reputable sources?or even ?more questionable?
sources, unless a newspaper recklessly disregards clear reason to believe that they were lying. See
Ryan v. Brooks, 634 F.2d 726, 732 (4th Cir. 1980); see also Garrison v. Louisiana, 379 U.S. 64,
74 (1964) (requiring a ?high degree of awareness of [a statement?s] probably falsity?). Moreover,

to allege actual malice against a newspaper, a plaintiff must allege more than ?highly unreasonable

 

6 The ADLF Article is non-actionable as a matter of law for an independent reason: the alleged defamatory statement
identified by Nunes is a quote (without any context) from Brad Woodhouse treasurer), and that quote is itself
a statement of opinion rather than a statement of fact. See Faste, 265 Va. at 132 (?Statements that are relative in nature
and depend largely upon the speaker?s viewpoint are expressions of opinion?). Woodhouse?s statement about what
?Nunes? constituents deserve? is a quintessential non-actionable opinion, as is his statement that ?it is possible [Nunes]
participated in illegal activity.?

{2745278-1, 121223?00001?0 1} 17

conduct constituting an extreme departure from the standards of investigation and reporting
ordinarily adhered to by responsible publishers.? Harte-Hanks Commc ?ns, Inc. v. Connaugkton,
491 U.S. 657, 664 (1989). Such allegations of ?mere negligent error? are insuf?cient to state a
claim. Gazette, Inc. v. Harris, 229 Va. 1, 16 (1985). Here, under those legal standards, the
Complaint falls far short of adequately alleging that McClatchy acted with actual malice.

1. The Yacht Article: The Complaint offers little more than improper conclusory
allegations that this article was published with actual malice. (Compl. 11 31(b), And that is
not enough. See, Jarrett v. Goldman, 67 Va. Cir. 361, 2005 WL 13231 15, at 10 (Portsmouth
May 31, 2005). The Complaint also alleges departures from journalistic standards?but that fails
too. See Harte?Hanks, 491 U.S. at 666. As to most of the speci?c alleged defamatory statements
in the article, the Complaint alleges nothing more. See New York Times, 376 U.S. at 280. And as
to the Wine Statement?which concerned the timing of sales to Russians (Compl. 
Complaint alleges at most a ?mere negligent error? that McClatchy corrected after it received a
statement from the winery. See Gazette, 229 Va. at 42; see also New York Times, 376 U.S. at 287-
88 (?nding only ?negligence? where ?the Times published the advertisement without checking its
accuracy against the news stories in the Times? own The Complaint thus offers no basis
whatsoever for inferring that this minor misstatement of fact, which McClatchy 
corrected, was either a deliberate lie or printed with knowledge of its probable falsity.7

2. The Bee Editorial: The Complaint does not contain any speci?c allegations of actual

malice respecting any statement in the Bee Editorial. (Compl. 14(d), To the extent it

 

7 More broadly, the Complaint alleges that ?McClatchy and its reporters exhibited an ?institutional hatred for Nunes,
spite, ill?will and the intent to hurt Nunes and impugn his character.? (Compl 11 But ?[a]ctual malice under
the New York Times standard should not be confused with the concept of malice as an evil intent or a motive arising
from spite or ill will.? Masson v. New Yorker Magazine, Inc, 501 U.S. 496, 510 (1991). Therefore, ?proofofa media
defendant?s ill will toward a public ?gure plaintiff is, without more, insuf?cient to establish knowledge of falsity or
reckless disregard for the truth.? Jackson v. Hartig, 274 Va. 219, 231 (2007).

{2745278?1, 121223?00001-01} 18

relies on more general allegations of institutional ill?will toward Nunes, or on allegations that the
newspaper varied from journalistic standards, those allegations are de?cient as a matter of law.

3. The Swamp Accountability ADLF Articles: The Complaint improperly contains
only stray quotes from these articles. Regardless, it does not allege that either article misquoted
the ethics complaints ?led against Nunes, or that any statement in either article was false. As to
the Swamp Accountability Article, Nunes alleges only that its author should have said more about
the Swamp Accountability Project (which ?led the ethics complaint) than she did in describing it
as an ?anti-Trump group in (Compl. jl But Nunes does not allege that this description
of the Swamp Accountability Project (which appeared in the article) is false. At the very most,
that supposed failure to say more about the group amounts to an allegation of negligence, not an
allegation of actual malice; otherwise, every elected of?cial who wished that a journalist had
provided more context about a critic could sue for defamation. As to the ADLF Article, Nunes
alleges that McClatchy ?had no business republishing the ADLF ethics complaint? because ?there
were obvious reasons? to ?doubt [its] veracity.? (Id. jl But Nunes does not actually allege
that the article described the allegations in the ethics complaint as true. According to the
Complaint, McClatchy merely observed that ?the ADLF complaint asked the Of?ce of
Congressional Ethics . . . to ?investigate whether Nunes was on the yacht.? Nunes does not
allege that this description of the ethics complaint?or the quotation from itiwere false. That
forecloses his defamation claim: it is not illegal, or an indicator of actual malice, for a newspaper
to accurately describe and quote from an ethics complaint ?led against a Member of Congress,

even if the newspaper may have reason to doubt certain allegations included in the complaint.

{2745278?1, 121223?00001?01} l9

4. The FEC Quote: The Complaint includes no speci?c factual allegations indicating that
McClatchy or Mair either actually knew, or clearly should have known, that any part of this quote
was false. (See Compl. 1] Nunes has therefore failed to allege actual malice.8

a: 

Under a straightforward application of Virginia law, the Complaint should be dismissed.
It fails to adequately allege any conspiratorial agreement between Mair and McClatchy, and it fails
to adequately allege that McClatchy published any truly defamatory statements in furtherance of
this supposed conspiracy. Compliance with those threshold legal requirements is particularly
important in a case like this one, where a Member of Congress seeks to hold a private citizen liable
for criticizing him. As precedent makes clear, before elected of?cials can chill speech by in?icting
the burdens of discovery and trial, they must allege more?much more?than Nunes has done
here. Citizens are free to give quotes, and tweet articles, critical of politicians. They are free to
?le lawsuits and submit ethics complaints. Newspapers are free to report on all that. Such conduct

is not a sign of illegal conspiracy. It is the lifeblood of our democratic system.

CONCLUSION
For the foregoing reasons, Mair reSpectfully requests that this Court sustain her demurrer

and dismiss the Complaint.

 

8 A review of the article itself con?rms the point. See Kate Irby, Nunes used political dollars for in Celtics
tickets, winery tours and Vegas trips, MCCLATCHY D.C. (July 19, 2018). The article discloses that Mair heads the
Swamp Accountability Project, ?which has been funding ads targeting Nunes." And it bases its speci?c factual claims
about Nunesiwhicli are the subject of Mair?s quoteion ?reports from the Federal Election Commission and two
nonpartisan watchdog groups.? This reliance on reputable sources defeats any allegation of actual malice.

{2745278?1, 121223?00001?01} 20

Dated: August 3, 2020 Respectfully submitted,

ELIZABETH A. MAIR and MAIR
STRATEGIES LLC

By:

ii,

 

 

Roberta A. Kaplan (pro hac vice forthcoming)
Joshua Matz (pro hac vice forthcoming)

Louis W. Fisher (pro hac vice forthcoming)
KAPLAN HECKER FINK LLP

350 Fifth Avenue, Suite 7110

New York, New York 10118

Phone: (212) 763?0883
rkaplan@kaplanhecker.com
jmatz@kaplanhecker.com


J. Benjamin Rottenborn (VSB #84796)
Justin E. Simmons (VSB #77319)
ROGERS PLC

10 S. Jefferson Street, Suite 1400

PO. Box 14125

Roanoke, Virginia 24011

Phone: (540) 983-7600

Fax: (540) 983-7711
brottenbom@woodsrogers.com
jsimmons@woodsrogers.com

Counsel for Defendants Elizabeth Mair
and Mair Strategies LLC

{2745278-1, 121223?00001?01} 21

Of Counsel

CERTIFICATE OF SERVICE

I hereby certify that on August 3, 2020, I caused the foregoing document to be sent by
email and first?class mail, postage prepaid, to the following counsel of record:

Steven S. Biss

300 West Main Street, Suite 102
Charlottesville, Virginia 22903
stevenbiss@earthlink.net

Counsel for Plainti? Devin G. Nunes

Jason C. Schwartz

Brandon L. Boxler

GIBSON, DUNN CRUTCHER LLP
1050 Connecticut Ave. NW
Washington, DC. 20036

schwartz@gibsondunn.com
bboxler@gibsondunn.com

Theodore J. Boutrous Jr.

GIBSON, DUNN CRUTCHER LLP
336 South Grand Ave.

Los Angeles, CA 90071
tboutrous@gibsondunn.c0m

Counsel for Specially Appearing Defendant
The McClatchy Company

 

 

J. Benjamin Rottenborn

{2745278?1, 121223-00001-01} 22