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Fox-Smartmatic defamation case: What to know

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People walk by the News Corporation headquarters, home to Fox News, on April 18, 2023 in New York City.

Spencer Platt | Getty Images

Fox Corp. and its TV networks agreed to pay $787.5 million to settle Dominion Voting Systems’ defamation lawsuit this week, but the media giant’s legal headaches don’t end there.

Still hanging in the balance is voting software company Smartmatic USA’s defamation case, which is seeking $2.7 billion in damages – over $1 billion more than Dominion initially sought in its lawsuit.

Smartmatic, like Dominion, filed its defamation lawsuit against Fox for spreading false claims that its voting software helped rig the 2020 election that saw Joe Biden triumph over Donald Trump. Smartmatic’s suit also specifically names host Maria Bartiromo, Jeanine Pirro and former host Lou Dobbs.

Smartmatic’s lawusit alleges that Fox and its hosts didn’t just report the statements being made by Trump and his allies at the time, but that the network, Dobbs, Pirro and Bartiromo “effectively endorsed and participated in the statements with reckless disregard for, or serious doubts about,” whether the claims being made on air were true at all.

Dobbs’ weekday program on the Fox Business network was canceled shortly after he was named as a defendant in Smartmatic’s lawsuit. Fox has said the show’s cancellation was in the works prior to the lawsuit.

The lawsuit says the network and its hosts in the weeks following the election “purposely avoided publicly available knowledge” that would have disproved Smartmatic’s software and Dominion’s machines were used to switch votes.

Although Smartmatic’s lawsuit was filed shortly ahead of Dominion’s in 2021, the pace of the case has lagged in comparison. It remains unclear how or whether the settlement between Fox and Dominion will affect Smartmatic’s case.

“Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” Smartmatic’s attorney Erik Connolley said in a statement Tuesday after the Dominion settlement was announced. “Smartmatic will expose the rest. Smartmatic remains committed to clearing its name, recouping the significant damage done to the company, and holding Fox accountable for undermining democracy.”

“We will be ready to defend this case surrounding extremely newsworthy events when it goes to trial, likely in 2025,” a Fox spokesperson said in a statement on Wednesday.

Fox is also calling foul on the size of the damages claim. “As a report prepared by our financial expert shows, Smartmatic’s damages claims are implausible, disconnected from reality, and on its face intended to chill First Amendment freedoms.”

Smartmatic didn’t immediately provide an updated statement on Wednesday.

‘The same evidence, the same facts’

The cases have overlapped recently.

Last week, Smartmatic filed a motion seeking the Supreme Court of New York to compel Fox to “reproduce all relevant documents and depositions from the Dominion actions.” The filing hit the court docket as the Delaware judge presiding over Dominion’s case sanctioned Fox News for withholding evidence.

Smartmatic said Fox had received an order in September 2022 to reproduce all relevant documents and depositions from Dominion for its own defamation lawsuit, according to court papers. “Those cases set the floor for Fox News’s and Fox Corp.’s discovery obligations here,” Smartmatic said in court papers, calling Dominion the benchmark for its case.

The company asked the New York judge to sanction Fox in this matter, too.

“I think the decision to settle was let’s just pay this and make it go away, and I think that’s the same strategy they’re going to apply with the Smartmatic case. It’s all the same discovery, the same evidence, the same facts as Dominion,” said Imraan Farukhi, an assistant professor at Syracuse University’s S.I. Newhouse School of Public Communications

Fox filed court papers this week further denying the allegations made by Smartmatic.

While Dominion and Fox both urged the judge overseeing their case to make a ruling and bypass a trial, Judge Eric Davis had said the case should forge ahead to be determined in a courtroom. Davis did, however, point to statements regarding election fraud, including that Dominion had manipulated vote counts, that it was founded in Venezuela to rig elections on behalf of late dictator Hugo Chavez, and that it paid kickbacks to government officials who used the machines in the election, to be defamatory.

In the weeks following the election, Fox hosts had pro-Trump attorneys Sidney Powell and Rudy Giuliani on as guests, who repeated such claims. In most circumstances both Smartmatic and Dominion were called out by name. Davis had stopped short of ruling that Fox acted with malice.

'We feel good' keeping Fox accountable and exposing the truth: Staple Street Capital's Yaghoobzadeh

Hootan Yagoobzadeh, the co-founder of Staple Street Capital, Dominion’s private-equity backer, told CNBC on Wednesday that Dominion wasn’t “willing to settle until the reams of information … were able to see the light of day.” The company also wanted to go through summary judgement to see what the court’s ruling would be.

Throughout both lawsuits, Fox has said it was protected by the First Amendment.

On Tuesday, when the Dominion settlement was announced, Fox said in a statement that it acknowledged “the Court’s rulings finding certain claims about Dominion to be false,” Fox News Media said. “This settlement reflects Fox’s continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.”

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