Why Fox News’ Next Defamation Suit—From Smartmatic—Might Require Another ‘Big Check’ To Settle

Topline

Fox News settled Dominion Voting Systems’ defamation lawsuit against it Tuesday for $787.5 million, ending two years of litigation over false election fraud claims Fox aired involving Dominion machines—but the network still faces another pending defamation case involving its fraud claims, as a separate lawsuit brought by rival voting company Smartmatic moves forward.

Smartmatic is moving forward with a $2.7 billion lawsuit against Fox News, its anchors and Rudy … [+] Giuliani.

AFP via Getty Images

Key Facts

Smartmatic sued Fox News and its anchors Lou Dobbs, Jeanine Pirro and Maria Bartiromo in February 2021 in New York state court, alleging they “engaged in a conspiracy to spread disinformation about Smartmatic” by pushing fraud claims involving its machines, along with far-right attorneys Sidney Powell and Rudy Giuliani.

The lawsuit, which asks for $2.7 billion in damages, alleges the defendants “decided to make Smartmatic the villain in their story” for their own “selfish and financial reasons,” alleging Giuliani and Powell “found a willing partner in Fox News” to spread their false fraud claims, because Fox was trying to stop viewers from switching to further-right One America News and Newsmax.

New York State Supreme Court Justice David Cohen allowed the case against Fox News to move forward in March 2022, finding there was a “substantial basis” to conclude that Fox “turned a blind eye to a litany of outrageous claims about plaintiffs, unprecedented in the history of American elections, so inherently improbable that it evinced a reckless disregard for the truth.”

Cohen also allowed the case to move forward against Dobbs and Baritromo, but dismissed the case against Pirro and Powell and some of the claims against Giuliani.

An appeals court in New York revived the claims against Pirro in a February ruling, however—along with the entire case against Giuliani—though it did say the lower court should have dismissed claims against Fox Corporation, which is separate from Fox News.

That ruling means the case is now moving forward in New York state court against Fox News and all three anchors—Dobbs, Bartiromo and Pirro—as well as Giuliani.

What To Watch For

There isn’t a trial date set yet for the Smartmatic case, though it’s likely it will not be until next year. The court docket notes discovery in the case is not due to be completed until July 2024, which is necessary before the case goes to trial. It’s possible the case could be settled ahead of a trial as the Dominion case was, and in a FAQ about the litigation on its website, Smartmatic said about the possibility of settling: “Smartmatic is determined to realize the goals as stated in the lawsuit — namely appropriate compensatory damages, punitive damages, and full and complete retraction of the disinformation on all of Fox’s platforms.” Legal experts cited by Reuters noted the Fox settlement could make it more likely the case could be settled, as it shows Fox is willing to settle defamation claims against it and gives Smartmatic more leverage given damaging evidence unearthed in the Dominion case and Fox’s acknowledgement the court in that case found fraud claims it pushed were false. “Smartmatic now has a bargaining chip, and Fox has shown it is willing to take out its checkbook and write a big check,” University of Tennessee media law professor Stuart Brotman told Reuters.

Crucial Quote

“Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” Smartmatic attorney Erik Connolly said in a statement Tuesday following Fox and Dominion’s settlement. “Smartmatic will expose the rest.”

Chief Critic

Fox News has opposed the defamation claims in Smartmatic’s lawsuit. “There is nothing more newsworthy than covering the president of the United States and his lawyers making allegations of voter fraud,” the network said in a statement following the appeals court ruling in February. “Freedom of the press is foundational to our democracy and must be protected, in addition to the damages claims being outrageous, unsupported, and not rooted in sound financial analysis.”

Surprising Fact

Though Trump allies made widespread claims of election fraud involving Smartmatic machines in the 2020 election that shifted the race from former President Donald Trump to President Joe Biden, London-based Smartmatic’s machines were only used in Los Angeles County, California, in the 2020 election. The machines were not used in any battleground states, though CEO Antonio Mugica told Forbes in 2021 the company has ambitions to expand further in the U.S.

Key Background

Smartmatic’s lawsuit against Fox News and Giuliani is one of five defamation cases the company has brought in the wake of the 2020 election, along with cases against OANN, Newsmax, MyPillow CEO Mike Lindell and Powell, who Smartmatic sued in federal court after the state case against her was dismissed. (Dominion also has pending cases against those defendants.) Dominion’s case against Fox News was settled Tuesday just as the trial in the case was set to begin, with the voting company getting a $787.5 million payout after initially asking for damages of $1.6 billion. The case garnered significant interest ahead of the trial as court filings in the case revealed text messages, emails and testimony from top Fox anchors and executives, including Fox Corporation chair Rupert Murdoch, saying they knew the fraud claims involving Dominion’s machines were false. Delaware Superior Court Judge Eric Davis ruled ahead of the trial that the fraud claims Fox pushed on-air were false, but did not determine whether they were made with “actual malice,” meaning Fox knew they were untrue but pushed them anyway. In a statement following the settlement, Fox said it “acknowledge[s] the Court’s rulings finding certain claims about Dominion to be false,” but did not issue an apology.