Fox News crossed a big, potentially embarrassing showdown with Dominion Voting Systems off its list of legal troubles this week with a $787.5 million (£635.66 million) pretrial settlement, but the conservative network faces more court challenges ahead.
Most notably, a $2.7 billion (£2.18 billion) defamation lawsuit from Smartmatic USA, which largely echoes Dominion’s claims that it was irreparably harmed by lies spread on the network during coverage of the 2020 presidential election.
The lawsuit is currently in the discovery phase with no trial date scheduled. J Erik Connolly, the lead attorney for Smartmatic, on Thursday told CNN the company wants nothing short of “the vindication of a jury verdict in their favour.”
The Dominion and Smartmatic defamation cases are similar in many ways, meaning the Dominion deal could offer clues about Smartmatic’s court challenge.
“Smartmatic now has a model, a template, and a formula to follow to resolve their defamation dispute,” Roy Gutterman, a journalism professor who teaches communications law at Syracuse University, told The Wall Street Journal.
What is Smartmatic’s lawsuit about?
Smartmatic, incorporated in the US in 2000 but now based in London, demanded a retraction from Fox News in December 2020 for false claims broadcast on the air.
Soon after, Fox News ran a “fact-checking” segment. None of the personalities named in the lawsuit participated in the clip, which featured a pretaped interview with Edward Perez of the nonprofit Open Source Election Technology Institute contradicting claims that Smartmatic interfered with the election.
Smartmatic sued Fox News in February 2021 in New York State Supreme Court, and also named as defendants hosts Maria Bartiromo, Lou Dobbs and Jeanine Pirro, as well as former President Donald Trump’s then-lawyers Rudy Giuliani and Sidney Powell.
A New York appeals court earlier this year rejected an effort by Fox News to get the case tossed out, and allowed the lawsuit to move forward against Fox News, Bartiromo, Dobbs, Pirro and Giuliani. The case against Powell was dismissed because she’s a Texas resident and doesn’t do business in New York.
Smartmatic’s lawsuit said that Fox News and the other defendants “decided to make Smartmatic the villain in their story,” and that the conservative network published over 100 false and misleading statements about the company.
The complaint also alleges Fox aired 13 segments in November and December 2020 stating that Smartmatic stole the election.
Smartmatic said it played a “small, non-controversial role” in the 2020 presidential election by providing election technology and software in Los Angeles County, while the defendants falsely suggested it switched votes in battleground states at Trump’s expense. Smartmatic says Fox News did this in pursuit of ratings to cash in on Trump’s popularity.
“Fox News needed a way to reclaim its favoured status with President Trump and his followers,” the lawsuit says. “Enter Mr Giuliani and Ms Powell.”
Among the lies, according to the suit, are claims that Dominion and Smartmatic were somehow related, including a false suggestion that Dominion used Smartmatic’s software. Smartmatic said the companies are competitors and don’t work together.
Fox News also aired claims that Smartmatic had ties to Venezuela, was founded by the late Venezuelan President Hugo Chávez, and also received funding from other communist countries like China and Cuba.
“We shouldn’t be using this company that was founded by Chávez to call votes in America because their specialty in Venezuela is cheating,” Giuliani told “Lou Dobbs Tonight” on November 18, 2020.
Smartmatic said it was irreparably harmed by the lies.
“The predictable and natural result of the Defendants’ disinformation campaign was to destroy Smartmatic’s reputation, undermine confidence in Smartmatic’s election technology and software, and put people’s lives in danger,” the lawsuit said.
How did Smartmatic respond to the Fox News-dominion settlement?
Dominion’s settlement with Fox for less than half of the original $1.6 billion (£1.29 billion) demand did not require the right-wing network to admit its lies or apologise on the air.
In a statement after the deal was announced, Fox simply acknowledged “the Court’s rulings finding certain claims about Dominion to be false,” and said it remained committed “to the highest journalistic standards.”
Dominion defended its decision to accept the settlement, saying facts uncovered in the lawsuit’s discovery process gave the company the accountability it sought.
“Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign,” Connolly said in a statement. “Smartmatic will expose the rest.”
Fox News, in a statement shared with HuffPost, said it will fight “this case surrounding extremely newsworthy events when it goes to trial, likely in 2025.”
“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,” the company added.
How can the dominion settlement affect Smartmatic’s lawsuit?
In a CNN interview Thursday, Connolly said the Dominion settlement “set down a marker” for Smartmatic’s case. But for Smartmatic, he said, any deal with Fox would require a much higher figure.
While Smartmatic only offered services in Los Angeles County during the 2020 election, the harm caused by the lies Fox News is global, Connolly explained.
“Smartmatic is looking for compensation for the business they lost in the United States and globally,” Connolly told CNN’s Jake Tapper. “So I would tell you 787 is a good start, but it’s not the right finishing point.”
Stuart Brotman, a professor at the University of Tennessee, Knoxville, told Reuters that the fact that Fox News was able to come to an agreement with Dominion will help it enter negotiations with Smartmatic.
“Smartmatic now has a bargaining chip, and Fox has shown it is willing to take out its checkbook and write a big check,” Brotman said.
Norm Eisen, a senior fellow at Brookings Institute and a former special counsel to the House Judiciary Committee in Trump’s first impeachment trial, echoed Brotman, telling CNN that both the settlement and the judge’s earlier ruling that it was “CRYSTAL clear” that none of the statements Fox broadcast relating to Dominion about the 2020 election were true, “puts wind in the sails” of Smartmatic.
“Now that Smartmatic sees Fox is willing to pay, they are gearing up for battle,” Eisen added.
Connolly said Smartmatic would insist that Fox News apologise for its lies in any settlement.
“In order to get back to where they were before this all started, where they can win the contracts that they’re now losing, they need to get an apology,” Connolly said. “They need to get a full retraction because they’re in that business for the long haul.”
Smartmatic has other defamation lawsuits pending against the right-wing networks Newsmax and One America News Network, also involving 2020 election lies.