The Daily Beast’s lawyers were merciless in a response to Dan Bongino‘s recent objection to a federal court’s award of attorney’s fees in his failed defamation case against the online publication. In particular, The Daily Beast ridiculed Bongino for not understanding that his “voluntary dismissal” amounted to a loss of the case.
First, a recap on the ongoing litigation between right-wing provocateur and Trump supporter Bongino and The Daily Beast.
The Daily Beast posted an article in December 2018 titled “Dan Bongino Out at NRATV – BONGI-NO-MORE,” which discussed Bongino’s departure from the National Rifle Association’s (NRA) broadcast media arm. The article contained a statement that said the NRA “dropped pro-Trump firebrand Don Bongino” from his position.
The next year, Bongino filed a lawsuit in South Florida’s U.S. District Court alleging that The Daily Beast had defamed him by misstating the terms of his exit. Both Bongino and NRATV released statements saying that the decision not to renew the show had been Bongino’s, and not the network’s.
Bongino lost spectacularly in court. Not only was his defamation case dismissed as being “without merit” and for violating Florida’s anti-SLAPP law, but the Florida federal judge ordered him to pay more than $30,000 in attorneys’ fees to The Daily Beast. Unlike many cases, the fee award in this case was a mandatory consequence of the court finding Bongino had violated the anti-SLAPP statute. Florida’s Anti-Strategic Lawsuits Against Public Participation (Anti-SLAPP) law contains a mandatory fee-shifting provision meant to prevent plaintiffs from using defamation litigation to stifle constitutionally-protected speech.
After his lawsuit crashed and burned, Bongino brought attorney Steven S. Biss aboard his legal team on February 23, 2021. Biss, admitted pro hac vice for Bongino’s case, has represented Rep. Devin Nunes (R-Calif.) in a number of unsuccessful defamation lawsuits. (He eventually filed what the online law blog Above the Law called “one of the weakest opposition motions I’ve seen” — in addition to being “hand-wavey and misleading.”) The other member of Bongino’s legal dream team is former Roger Stone criminal defense attorney Robert Buschel.
Once admitted to practice in the case, Biss and Buschel filed Bongino’s formal objection to the award for attorneys’ fees. In their objection, they raised every argument possible: the court was wrong about the article not having been defamatory, the court lacked jurisdiction to even hear the case, and that it was Bongino who really won the case. Bongino’s objection also included an inadvertent nod to Donald Trump’s impeachment defense brief: “Unite States.” (Spelling incorrect in the original.)
The Daily Beast filed a brutal response to Bongino’s objection, essentially ridiculing Bongino for a notably weak attempt to reverse the ruling on attorneys’ fees.
First, the publication said that Bongino made the wrong argument. Instead of addressing how an award of attorneys’ fees was improper, Bongino “just repeats the arguments Bongino made to the Magistrate, without mentioning – much less responding to – the Magistrate’s reasons for rejecting those arguments.”
The Daily Beast went on to recount myriad ways Bongino’s lawsuit failed: missing filing deadlines, failing to plead a proper defamation case, and violating the anti-SLAPP statute. The court had given Bongino the opportunity to amend his complaint to comport with legal requirements, but “[i]nstead of availing himself of that opportunity to amend, Bongino filed a Notice of Voluntary Dismissal four days later, purporting to ‘voluntarily’ dismiss the case without prejudice.”
The defense brief devoted pages to such arguments. Bongino may have “voluntarily dismissed” his case, but only after the court ruled that his complaint violated the anti-SLAPP law. Theoretically, Bongino could have amended his complaint, but his failure to do so indicated that he already tried his best, and that just wasn’t good enough.
“Here, of course, Bongino did not even try, effectively conceding that the defects in his Complaint could not be cured,” The Daily Beast’s lawyers wrote. In other words, he who packs up his lawsuit and goes home has lost the fight.
In a noticeable coda, the defense brief ended with a footnote reminding the court that they’re not the only ones who looked down upon Bongino’s legal maneuvers:
“A prominent legal blog reporting on the R&R termed the requested fee award of $31,835 “a ridiculously low figure for 91 hours of work from Davis Wright Tremaine LLP.” See Elizabeth Dye, Federal Court Confirms That Dan Bongino Is A Total Loser, Orders Fees In Daily Beast SLAPP Suit, Above the Law (Feb. 9, 2021), available at https://abovethelaw.com/2021/02/federal-court-confirms-that-dan-bongino-is-a-total-loserorders-fees-in-daily-beast-slapp-suit/”
Read the documents below:
[image via Rich Polk/Getty Images for Politicon]
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