A Fox News correspondent holds a Fox News microphone in a September 25, 2019 file photo (Photo by Drew Angerer/Getty Images).
Smartmatic, the voting machine company that’s been suing news outlets, Rudy Giuliani and others over their 2020 election coverage, has been given the green light to keep pursuing its $2.7 billion defamation case against Fox Corp. — with a New York appellate court agreeing Thursday to deny a motion to dismiss from the media giant — over false claims that were allegedly reported on Fox News.
“The motion court properly denied Fox Corporation’s motion to dismiss the defamation claim against it,” the New York First Department Court of Appeals wrote in an unsigned opinion, which comes after Fox appealed a lower court’s decision to deny a motion it filed to dismiss Smartmatic’s defamation case.
“In the litigation of this issue in the similar matter brought in Delaware by Dominion Voting Systems, the Delaware courts found that allegations nearly identical to those here adequately asserted a claim as to Fox Corporation’s direct liability for defamation under New York law that survive a motion to dismiss and a motion for summary judgment,” the court said.
Smartmatic, which filed the suit in 2021 and is demanding a jury trial, alleges that Fox aired false claims and “election conspiracy theories” about its voting machines during its 2020 post-election coverage, with Fox Corp. execs — including Rupert Murdoch and his son Lachlan Murdoch — being accused of purposely letting Fox spread lies about the company rigging the election, according to court documents.
Smartmatic’s defamation suit names Fox, Fox News, Lou Dobbs, Maria Bartiromo, Jeanine Pirro, Sydney Powell and Giuliani for their alleged involvement in the reporting. It is one of two voting machine companies that has sued Fox for defamation relating to the 2020 presidential election. Dominion settled its lawsuit against Fox in April for $787.5 million, with it being a point of emphasis in the appellate court’s ruling Thursday.
“Here, consistent with the Dominion decisions, we find that the allegations in the first amended complaint relating to Fox Corporation directing the other defendants to undertake a disinformation campaign in the post-election coverage, along with the allegations of Fox Corporation’s active participation in Fox News Network’s daily operations in connection with that coverage, sufficiently allege Fox Corporation’s ‘direct liability’ for the challenged defamatory statements, as well as satisfy the applicable pleading requirements for alleging actual malice,” the court said.
While the ruling serves as a win for Smartmatic, the appellate court did find holes in some of the company’s allegations, writing that it did not plead a “viable defamation claim” against Fox for vicarious liability, which led to the claim being dismissed.
“Contrary to plaintiffs’ assertions, its allegations that Fox Corporation wholly dominated Fox News over a single, specific transaction (i.e., a defamatory campaign), cannot, on their own, furnish a proper basis for vicarious liability,” the court said. “Vicarious liability requires allegations of total corporate dominance based on veil piercing or some other showing that the subsidiary lacks a true separate corporate existence.”
Smartmatic’s defamation allegations, according to the court, “satisfy the applicable pleading requirements for alleging ‘actual malice’ under New York law” and are enough to allow the case to be heard, the court ruled.
The decision comes two weeks after the Delaware Court of Chancery ordered Fox and Rupert Murdoch to face claims, saying they should be held accountable for financial losses that stem from the Smartmatic and Dominion cases.
Speaking to Bloomberg, Smartmatic’s attorney Erik Connolly said Fox had “attempted, and failed, to have this case dismissed, and it must now answer for its actions.” Connolly added, “We look forward to presenting our evidence at trial.”
Fox told Law&Crime on Thursday that it is “ready to defend this case surrounding extremely newsworthy events” when it goes to trial.
“As a report prepared by our financial expert shows, Smartmatic’s damages claims are implausible, disconnected from reality, and on their face intended to chill First Amendment freedoms,” Fox said.
