Fox News crossed a big and potentially embarrassing match with Dominion Voting Systems off its list of legal troubles this week with a $787.5 million pretrial settlement, but the conservative network faces more court challenges ahead.
In particular, a $2.7 billion defamation lawsuit from Smartmatic USA, which largely echoes Dominion’s claims that it was unenforceable because of the network’s widespread lies during its coverage of the 2020 presidential election.
The lawsuit is currently in the discovery phase with no trial date scheduled. J. Erik Connolly, the main lawyer for Smartmatic, on Thursday told CNN the company does not want anything short of “evidence of a jury verdict in their favor.”
The Dominion and Smartmatic defamation cases are similar in many ways, meaning that the Dominion deal could provide clues to Smartmatic’s court challenge.
“Smartmatic now has a model, a template, and a formula to follow to resolve defamation disputes,” Roy Gutterman, a journalism professor who teaches communications law at Syracuse University, told The Wall Street Journal.
What are Smartmatic Claims?
Smartmatic, which was incorporated in the US in 2000 but is now based in London, demanded the resignation of Fox News in December 2020 for false claims it broadcast on air.
Soon after, Fox News ran a “fact-checking” segment. None of the personalities named in the lawsuit are involved in the clip, which features a pretaped interview with Edward Perez of the nonprofit Open Source Institute for Election Technology who refutes claims that Smartmatic interfered with the election.
Smartmatic sued Fox News in February 2021 in the Supreme Court of the State of New York, and also named as defendants the hosts Maria Bartiromo, Lou Dobbs and Jeanine Pirro, as well as the former lawyers of President Donald Trump Rudy Giuliani and Sidney Powell.
A New York appeals court earlier this year rejected Fox News’ attempt to have the case thrown out, allowing the suit to move forward against Fox News, Bartiromo, Dobbs, Pirro and Giuliani. The case against Powell was dismissed because he was a resident of Texas and did not do business in New York.
Smartmatic’s lawsuit says Fox News and the other defendants “decided to make Smartmatic the villain in their story,” and that the conservative network published more than 100 false and misleading statements about the company.
The complaint also accuses Fox of airing 13 segments in November and December 2020 alleging that Smartmatic stole the election.
Smartmatic said it played a “small and non-controversial role” in the 2020 presidential election by providing voting technology and software to Los Angeles County, while the defendants wrongly suggested it sway votes in battleground states at Trump’s expense. Smartmatic says Fox News is doing this to gain ratings in order to gain Trump’s popularity.
“Fox News needs a way to restore the status it enjoys with President Trump and his followers,” the lawsuit says. “Enter Mr. Giuliani and Ms. Powell.”
Among the lies, according to the suit, were claims that Dominion and Smartmatic were related, including the false suggestion that Dominion used Smartmatic software. Smartmatic says the companies compete and do not work together.
Fox News also spread the claim that Smartmatic has ties to Venezuela, was founded by the late Venezuelan President Hugo Chávez, and also receives funding from other communist countries like China and Cuba.
“We should not use this company founded by Chávez to call votes in America because it specializes in lying in Venezuela,” Giuliani said on “Lou Dobbs Tonight” on November 18, 2020.
Smartmatic says it cannot be destroyed by lies.
“The predictable and natural result of the Defendants’ disinformation campaign was to damage Smartmatic’s reputation, undermine confidence in Smartmatic’s election technology and software, and put people’s lives at risk,” the lawsuit states.
How Smartmatic Responds to Fox News-Dominion Settlement?
Dominion’s settlement with Fox for less than half of the original $1.6 billion demand did not require the right-wing network to admit its lies or apologize on air.
In a statement after the deal was announced, Fox simply acknowledged “the Court’s decision to find certain claims about Dominion false,” and said it remained committed “to the highest journalistic standards.”
Dominion defended its decision to accept the settlement, saying the facts discovered in the lawsuit’s discovery process put the company on the hook.
“Dominion’s litigation exposes some of the wrongdoing and damage caused by Fox’s disinformation campaign,” Connolly said in a statement. “Smartmatic will open the rest.”
Fox News, in a statement shared with HuffPost, said it would fight “this case is about a very important event when it goes to trial, possibly in 2025.”
“According to the report prepared by our financial experts, Smartmatic’s claim for compensation is untenable, has no relation to the facts, and on its face is intended to encroach on First Amendment freedoms,” the company added.
How Will Dominion’s Settlement Affect Smartmatic’s Lawsuit?
In a CNN interview Thursday, Connolly said the Dominion settlement “sets the mark” for the Smartmatic case. But for Smartmatic, he said the deal with Fox required higher numbers.
While Smartmatic is only offering service in Los Angeles County during the 2020 election, the damage caused by Fox News lies is global, Connolly explained.
“Smartmatic is seeking compensation for lost business in the United States and globally,” Connolly told CNN’s Jake Tapper. “So I will tell you the 787 is a good start, but not the right end point.”
Stuart Brotman, a professor at the University of Tennessee, Knoxville, told Reuters that Fox News being able to reach an agreement with Dominion would help in negotiations with Smartmatic.
“Smartmatic now has a bargaining chip, and Fox has shown they’re willing to pick up their checkbook and write a big check,” Brotman said.
Norm Eisen, a senior fellow at the Brookings Institution and former special counsel for the House Judiciary Committee in Trump’s first impeachment trial, echoed Brotman, telling CNN that the settlement and the previous judge’s decision were “CRYSTAL clear” that none of the statements Fox broadcast about Dominion’s ties to the 2020 election were true. “puts the wind in the sails” from Smartmatic.
“Now that Smartmatic sees that Fox is willing to pay, they’re ready to fight,” Eisen added.
Connolly said Smartmatic will insist that Fox News apologize for lying in any settlement.
“In order to get back to where he was before it all started, where he was able to win the contract that he’s now losing, he needs to apologize,” Connolly said. “They should ask for a full retraction because they are in business for the long term.”
Smartmatic has other defamation lawsuits pending against right-wing networks Newsmax and One America News Network, also involving manipulation of the 2020 election.