Legal Update: September 2025

Nunes v. Lizza—Establishing Special, General, and Exemplary Damages

Former House Representative, Devin Nunes, sued Lizza and the Hearst Corporation for defamation. Nunes sought damages. The court dismissed his claim and explained how special, general, and exemplary damages are proven when the Plaintiff is a public figure.

Indian musician Adnan Sami once observed, “Being a public figure, you cannot make everyone happy. Some people will criticize your actions.” Devin Nunes, a former Congress member from California and current chief executive officer of the Trump Media & Technology Group, became a lightning rod for criticism from political opponents. As Mr. Nunes learned in Nunes v. Lizza, 126 F.4th 1361, 2025 U.S. App. LEXIS 1664 (8th Cir. January 27, 2025), sometimes one just needs to accept that criticism is part of life and move on.

Background

Mr. Nunes along with his father, Anthony Nunes, Jr., and his brother, Anthony Nunes, III, owned NuStar Farms, LLC (“NuStar”), a dairy farm located in Iowa.

On September 30, 2018, Esquire, then owned by defendant Hearst Magazines, Inc. (“Hearst”), published an article by defendant Ryan Lizza on its website and later republished the article in the November print edition of the magazine. The article claimed that NuStar operated using undocumented immigrant labor. As Mr. Nunes, in his political role, was vehemently opposed to undocumented immigration and sought deportation of all undocumented immigrants, found the article, suggesting that he and his family profited from undocumented immigration, defamatory.

On September 25, 2019, nearly a year after the original publication, Mr. Nunes demanded a retraction and changes to the article, which remained accessible on the magazine’s website. Mr. Lizza and Hearst declined.

On or around September 30, 2019, Mr. Nunes sued Mr. Lizza and Hearst for defamation. Mr. Nunes’ complaint was dismissed; that decision was partially affirmed and partially reversed, and remanded. On remand, Mr. Nunes filed an amended complaint. His father, brother, and NuStar (collectively the “NuStar Plaintiffs”) filed a second lawsuit alleging defamation by implication. The trial court consolidated the two cases. Ultimately, both cases were dismissed on summary judgment and the plaintiffs appealed.

Court Findings

Mr. Nunes Failed to Prove Damages

Under California law, which governed the litigation, defamation claims can provide recovery for different types of damages: special, general, and exemplary. “Special damages are all damages to the plaintiff’s property, business, trade, profession, or occupation. General damages, on the other hand, are loss of reputation, shame, mortification, and hurt feelings. Exemplary damages are additional damages recovered for the sake of example and by way of punishing a defendant.”[1]

To recover general or exemplary damages, the California statute requires that a plaintiff provide written notice to the publisher specifying the allegedly defamatory statements and demanding correction within 20 days after the plaintiff learns of the publication. Failure to comply with this process limits a plaintiff to special damages.

Mr. Nunes served written notice on the defendants nearly a year after publication and failed to present evidence that he only learned of the defamatory statements more than 11 months after publication. Accordingly, he was limited to a claim for special damages. Mr. Nunes claimed that he suffered special damages because the article impaired his future career opportunities, affected his ability to raise campaign funds, and damaged his 2018 reelection campaign. Special damages, however, “must be pled and proved precisely.”[2]

• The 2018 Election: Mr. Nunes was handily reelected to the U.S. House of Representatives, defeating his opponent by 6%. While it may have been the closest election in his career, Mr. Nunes could not establish a monetary loss related to the 2018 election.
• Campaign Fundraising: Mr. Nunes claimed that two to three dozen companies declined to contribute to his campaign, but he failed to provide any evidence related to this claim, including the names of the donors that allegedly declined to support him. In fact, Mr. Nunes’ fundraising ability appeared to grow despite the allegedly defamatory article. During the 2014 to 2016 election cycle, Mr. Nunes raised more than $2 million. During the 2016 to 2018 election cycle, he raised approximately $13 million. During the 2018 to 2020 election cycle, following the publication of the allegedly defamatory article, Mr. Nunes raised over $26 million; nearly doubling his collections from before the article was published.
• Lost Future Employment: Mr. Nunes claimed that the article impaired his future employment prospects after leaving Congress at the conclusion of his term in December 2021. Mr. Nunes, however, acknowledged that following his retirement from Congress, he became the Chief Executive Officer of Trump Media & Technology Group, Corp. with a starting salary of $750,000 (compared to his Congressional salary of less than $200,000). Mr. Nunes also acknowledged that he obtained this position based on his reputation.

The court concluded, based on the undisputed evidentiary record, Mr. Nunes could not establish that he sustained an economic loss caused by the article, and therefor, summary judgment was properly granted in favor of the defendants.

The NuStar Plaintiffs Failed to Show Injury

A defamation claim against a media outlet rests on five key elements: “(1) publication (2) of a defamatory statement (3) concerning the plaintiff (4) in negligent breach of the professional standard of care (5) that resulted in demonstrable injury to the plaintiff.”[3] As with special damages under California law, the standard under Iowa law required the plaintiffs to prove actual reputational harm, not merely general allegations of emotional distress or humiliation.

The NuStar Plaintiffs alleged that the farm had lost business, claiming that one person stopped doing business with NuStar as a result of the article. “But the NuStar plaintiffs failed to produce evidence that the suggested business relationship existed, let alone that the other party discontinued the association. This bare assertion of lost business is insufficient to establish a cognizable injury.”[4]

Further, the defendants proffered an expert witness who testified that NuStar’s revenues and profits increased after the article was published and that NuStar had not experienced lost profits or a reduction in value of the business. While the NuStar Plaintiffs argued that the increased revenues and profits were the result of other factors, bald allegations in the face of the defendants’ evidence was not sufficient. Once the defendants produced evidence of the absence of economic harm, the NuStar Plaintiffs were obligated to produce actual evidence contradicting the plaintiffs’ evidence to establish that there was a dispute to a material fact which would, in turn, preclude summary judgment.

The NuStar Plaintiffs also contended that they had sustained a general injury to their reputation following publication of the article. To support this claim, they pointed to negative comments and reviews about NuStar on social media. “To prove injury to reputation, however, a plaintiff must show that the plaintiff had a particular reputation before the article and that people thought worse of the plaintiff after reading the article.”[5] While the NuStar Plaintiffs produced evidence of threatening phone calls and negative social media posts, they did not produce any evidence of a preexisting “good” reputation, and thus failed to establish a cognizable injury.

Conclusion

Proof of injury in defamation claims is a steep climb, particularly for a public person. It is not sufficient to allege hurt feelings or even that the alleged defamatory statements resulted in people saying mean things about the plaintiff. The plaintiff must be able to show direct harm including an actual economic loss for special damages or proof of reputation before and after publication for general damages. Courts will not assume a good prepublication reputation.

[1]  126 F.4th 1361 at 1364, internal statutory references and quotation marks omitted.

[2]  Ibid. at 1365, quoting Gomes v. Fried, 136 Cal. App. 3d 924, 186 Cal. Rptr. 605, 614 (Cal. Ct. App. 1982).

[3]  Ibid. at 1366, quoting Johnson v. Nickerson, 542 N.W.2d 506, 511 (Iowa 1996) (as the NuStar Plaintiffs were all Iowa residents, their claims were decided under Iowa law).

[4]  Ibid.

[5]  Ibid. citing Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 225 (Iowa 1998) (“Although we have every reason to assume [the plaintiff] is well regarded in his community and had a good reputation before the false report, he presented no evidence of that good reputation. … [Therefore, the plaintiff] failed to produce substantial evidence of damage to reputation.”).

---

Michael J. Molder, JD, CPA, CFE, CVA, MAFF, applies 30 years of experience as a Certified Public Accountant and litigator to help investigate and analyze cases with complex financial and economic implications. He has acted as both counsel and accounting expert in pending and threatened litigation as well as participating in internal investigations of financial misconduct. As a litigator, Mr. Molder helped co-counsel understand complex financial and accounting issues in dozens of cases. In 2006, Mr. Molder returned to public accounting applying his unique skills to forensic engagements. He has also performed valuations of business interests in a wide variety of industries.

Mr. Molder has served as a valuation expert for both plaintiffs and defendants in commercial litigation matters and owner and non-owner spouses in matrimonial dissolutions. He has participated in the valuations of businesses in a wide variety of industries, including: food service, wholesale and retail distribution, literary development and production, healthcare, manufacturing, and real estate development.

Mr. Molder has also investigated and valued damages in a wide variety of litigation contexts ranging from breach of contract claims to personal injury cases, and from employment disputes to civil fraud. He has consulted on many matters which have not involved the issuance of a report for litigation or resulted in deposition or trial testimony. Accordingly, the identity of these matters is protected by attorney client privilege.

Mr. Molder has also lectured widely on a variety of accounting and litigation related topics including business valuation, financial investigations in divorce proceedings, accountant ethics, financial statement manipulation and “earnings management.”

Mr. Molder can be contacted at (610) 208-3169 or by e-mail to Molder@lawandaccounting.com.