Court Lets Challenge Against Former Overstock CEO Move Forward—Here’s Where Dominion And Smartmatic’s Defamation Suits Stand Now

Topline

Voting company Dominion Voting Systems’ defamation lawsuit against former Overstock CEO Patrick Byrne can move forward, a judge ruled Wednesday, as Dominion and rival company Smartmatic pursue 11 defamation lawsuits over baseless election fraud claims about their voting machines.

Founder and CEO of Overstock.com Patrick Byrne on May 15, 2019 in New York City.

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Key Facts

U.S. District Judge Carl J. Nichols ruled Dominion had a defamation case against Byrne and “that a reasonable jury could find Byrne acted with actual malice” in spreading provably false assertions about Dominion and its voting machines.

Dominion sued Byrne, who has become known for spreading election conspiracy theories after stepping down from Overstock in 2019, in August, alleging the businessman “manufactured and promoted fake evidence to convince the world that the 2020 election had been stolen” using Dominion voting machines, and accused him of doing so in order to boost his own investments in blockchain voting technology.

Denver-based Dominion filed its first lawsuit in January against pro-Trump attorney Sidney Powell, who has been the most prominent person spreading the fraud claims, seeking $1.3 billion in damages, and Nichols denied Powell’s motion to dismiss the case in August.

Nichols also ruled lawsuits Dominion filed against attorney Rudy Giuliani, MyPillow and its CEO Mike Lindell can move forward—though the cases against them and Powell may not go to trial until late 2023 or 2024, based on a schedule the judge set in early March.

Dominion sued Fox News in March 2021 alleging the network had knowingly spread false news about its machines to improve failing ratings, and a Delaware state judge denied Fox’s motion to dismiss the case in December.

Dominion sued One America News Network (OANN) and anchors Chanel Rion and Christina Bobb in federal court and Newsmax in Delaware state court in August, alleging the two far-right networks promoted fraud allegations on their network knowing they were false and “helped create and cultivate an alternate reality where up is down, pigs have wings, and Dominion engaged in a colossal fraud to steal the presidency from Donald Trump by rigging the vote.”

Smartmatic sued Fox News and its anchors Lou Dobbs and Maria Bartiromo in February 2021, alleging the defendants “engaged in a conspiracy to spread disinformation about Smartmatic,” and New York Supreme Court Justice David B. Cohen ruled in March that the $2.7 billion lawsuit can move forward against those defendants.

Cohen dismissed Smartmatic’s allegations against Powell and Fox anchor Jeanine Pirro, and dismissed some claims against Giuliani but let others move forward.

Smartmatic has separately sued Powell in federal court, which is still pending.

Smartmatic sued MyPillow and Lindell in January for defamation and deceptive trade practices in federal court, alleging the CEO spread “lies” about the company and “intentionally stoked the fires of xenophobia and party-divide for the noble purpose of selling his pillows.”

Smartmatic also sued OANN in federal court and Newsmax in Delaware state court in November, alleging both networks “reported a lie” and spread fraud claims about the company—whose machines were only used in California in 2020—knowing they were false; those lawsuits and Lindell’s suit are still pending.

What To Watch For

It’s unclear whether additional lawsuits will still be filed, but Dominion has identified more than 150 people as potential targets of litigation, and it sent letters to preserve evidence and warning of potential litigation to right-wing figures including pro-Trump attorney Lin Wood Melissa Carone, who Giuliani has promoted as a witness to supposed voter fraud efforts. The company sent letters to social media networks in February 2021 asking them to preserve posts from Trump and his campaign, as well as from Trump allies including former Trump advisor Michael Flynn, Pirro, Trump campaign attorney Jenna Ellis and far-right political commentator Dan Bongino. Dominion attorney Stephen Shackelford confirmed to reporters in August the company is still considering bringing additional lawsuits, saying the company is “still exploring options” as to how to hold others accountable and has “not ruled out other parties.”

Big Number

$1.6 billion. That’s approximately how much Dominion is asking for in damages against Byrne, OANN, Newsmax and Fox News. Its lawsuits against Powell, Giuliani and Lindell are each seeking $1.3 billion in damages. Smartmatic’s Fox News lawsuit is seeking $2.7 billion in damages, but its OANN, Newsmax and Lindell complaints do not specify exact figures.

Chief Critics

Byrne’s attorney has not yet responded to a request for comment, but argued in the motion to dismiss the case that Byrne’s statements about Dominion were protected under the First Amendment and the company’s defamation claims are “baseless.” Those sued have largely remained defiant, and Fox News said in a statement after the Smartmatic ruling that it was “grateful” the court dismissed the charges against Pirro but would “immediately” appeal the decision, as well as file a counterclaim “to prevent the full-blown assault on the First Amendment which stands in stark contrast to the highest tradition of American journalism.” Newsmax said in a statement after Smartmatic sued the network that it “reported accurately on allegations made by well-known public figures,” and Giuliani said the lawsuit against him was “another act of intimidation by the hate-filled left-wing.” OANN has also moved to dismiss the cases against them, and Nichols is now deliberating on whether to throw out the case.

Key Background

The companies’ voting machines are at the heart of a right-wing conspiracy theory alleging they were used to fraudulently flip votes from Trump to Joe Biden, which is not substantiated by evidence. Dominion says that the claims have substantially hurt its business and put its employees in danger. The voting company controls about 30% of the U.S. market, according to data cited by ProPublica in 2019—making it the second-largest business of its kind in the country—and said in its Fox News lawsuit that it has contracts with 28 states. Business analytics firm Dun & Bradstreet estimated the company’s 2021 annual revenue will be $40.15 million, though the company alleges it has lost out on state contracts over the fraud claims, including a $10 million contract in Stark County, Ohio, and a $100 million contract in Louisiana. London-based Smartmatic’s machines were only used in Los Angeles County in the 2020 election, though CEO told Antonio Mugica told Forbes the company has ambitions to expand further in the U.S. The company alleged in its complaints the fraud claims have caused Smartmatic to lose more than $2 billion in valuation since the 2020 election, going from more than $3 billion to less than $1 billion, though Forbes has independently valued Smartmatic at an estimated $730 million.