Smartmatic USA, a Florida-based voting tech company, played a small role in 2020’s general election. It had one contract with Los Angeles County. Rudy Giuliani and Sidney Powell, Trump’s campaign lawyers, saw Smartmatic as a much bigger threat than they thought. They claimed that the company supplied fraud-facilitating software for Dominion Voting Systems in an elaborate plot to steal millions more votes from Joe Biden.
Fox News promoted that tall story in an obvious role. SUSA sued Fox News in February 2021 to defame it and sought $2.7 billion in damages. Fox maintained that Fox was not protected by freedom-of-the press as it only covered the allegations of fraud in the election. Smartmatic, ex-Fox host Lou Dobbs and present host Maria Bartiromo, were able to proceed against Fox this week.
New York County Supreme Court Judge David B. Cohen’s 61-page decision also denied Giuliani’s motion for dismissal of Smartmatic’s claims. Cohen granted Powell’s motion. He accepted her argument, that SUSA did not establish a New York connection sufficient to allow her to sue her in the state. Jeanine Pirro’s claims were dismissed by Cohen. She found that one of her defamatory statements was specifically about Smartmatic.
SUSA made it clear in their complaint that Dobbs, Bartiromo were not only conducting softball interviews for Powell and Giuliani. They had also repeatedly given credence and presented these wild claims as fact. While the allegations were clearly false, they continued to make the same claims, even when their Fox colleagues, including news journalists Tucker Carlson and security experts, had pointed out the absence of any evidence that Trump was a conspirator.
Cohen points out that Dobbs stated on air that Dominion and USA sent votes outside of the country so the results wouldn’t be auditable; that Dominion had worked with SUSA (a voting technology company tied to Hugo Chavez); that Trump’s legal team discovered about Dominion, SUSA that gave rise to “probable cause to an extensive and thorough investigation”; and that SUSA was “electronically chang.”[ed]Venezuelan votes during the presidential election of 2013” and that “SUSA has ‘documented problems with [its] voting machine software.'”
Dobbs reaffirmed these accusations on Twitter. He “accused Dominion, SUSA, of ‘Democratic electoral fraud’.” Powell claimed that she had ‘firsthand proof’ that SUSA’s voting software could change votes automatically. Powell also stated that he had uncovered ‘groundbreaking’ evidence indicating that [the election]A massive cyber attack was launched with Dominion’s help. [SUSA]”
Bartiromo, however, stated that SUSA’s’ software used a back door to decide how many votes need to be changed to rig an electoral election. She said simultaneously that SUSA software was also used there, even though the program was limited to Los Angeles County.
Cohen says that if these statements are false they can be considered defamatory insofar because they relate to plaintiffs’ “trade, business, profession” and indicate they were guilty of a serious crime. New York law gives extra protection to defamation cases where speech is made on matters of public concern. SUSA has to also prove that “actual malice,” which means Dobbs, Bartiromo or both knew they were wrong. Cohen found that SUSA had “adequately plead a substantial ground” in both instances for actual malice.
“Dobbs makes very serious allegations that SUSA sent votes to Venezuela, that SUSA changed the votes in the Venezuelan elections of 2013, and there was probable cause of investigation into the company. SUSA software was intended to detect votes, but it could also be proven that SUSA participated in an attack on election. This is something that would be impossible for a reckless individual to believe. [them] in circulation,'” Cohen writes. Dobbs mentioned Powell’s firsthand and groundbreaking evidence, but was silent about the source or content of this evidence. Therefore, he “could have been found to be able to doubt Powell’s truthfulness.”
Cohen also noted that Bartiromo’s “representation of a back door’ might be fabrication because she didn’t name the source she was referring to. According to Cohen, “her assertion that SUSA’s program converted Trump votes into votes for Biden could also be false. It is so unlikely that a foolish person would believe it.” [it]”In circulation.” Cohen states that Bartiromo represented that SUSA software had been used in Dominion machine in swing state, which plaintiffs claim it was not. This implied that the software assisted President Trump in stealing the election.”
After Smartmatic threatened to sue Fox on December 14, 2020, Fox News and Fox Business aired a corrective, prerecorded interview with election security expert Eddie Perez during Lou Dobbs Tonight, Jeanine is Justice, And Mornings with Maria Perez claimed that Smartmatic’s software has never been used to alter, delete or modify any aspect of the voting tabulation.
Perez stated that Smartmatic software was not used in Los Angeles County in the 2020 elections and noted that it is separate from Dominion’s machines that were used in all 28 states to vote. Perez refuted the notion that U.S. vote were tabulated abroad and that Smartmatic was banned from the United States due to untrustworthiness.
SUSA believes that this is too little too late. Cohen seems to think so. Cohen seems to agree.
Cohen found the revelation that Dobbs revealed to his viewers about an email from SUSA in which it noted its small role in election results similarly disappointing. Cohen asserts that Dobbs can’t be held responsible for his remarks, merely because SUSA denies them. Dobbs also continued to spread allegedly false information regarding SUSA, Cohen says. AfterSUSA claimed that SUSA acted in reckless disregard for truth when he spoke to his audience.
Cohen states that Fox News can’t escape liability simply because Fox News anchors mentioned SUSA denials of their representations. In citing a 1964 case, Cohen says that the New York County Superior Court disapproved of his “suggestions for a libel being excused simply because it is denied by its subject.”
Cohen claims that the plaintiffs are correctly basing their case on a 1989 U.S. Supreme Court decision. In it, the Court stated that “even though a failure of investigation will not only support an actual malice finding, but the deliberate avoidance or concealment of the truth falls in another category.” According to the Court, a plaintiff could prove actual malice if he or she can show that the defendant failed to investigate and that they did not have knowledge that would support that claim.
Fox News maintained that it did not have malice by repeatedly asking Powell and Giuliani to provide proof. Cohen points out that this fact can also be used to support the claim of plaintiffs that Fox News knew that its broadcasts were false but continued to permit Powell and Giuliani on their network. These shows are hosted by Dobbs and Bartiromo and Pirro. They promote totally unfounded claims that Plaintiffs’ software allowed President Biden to steal his election. Cohen claims that even though Fox News didn’t deliberately spread lies, there is sufficient evidence to support plaintiffs’ claim that at the minimum, [it]He turned his blind eye to outrageous claims against plaintiffs that were unprecedented in American electoral history. It was so unlikely it was impossible for him not to disregard the truth.
Powell is a Texas lawyer who lives in Texas and was the principal exponent of Trump’s claim that Biden stole the election by a baroque conspiracy. This included Smartmatic, Dominion, George Soros and Clinton Foundation. It also involved Smartmatic, Dominion, as well as George Soros and George Soros. She claimed that “she believed all the claims in the Smartmatic case and still believes them now”, but she said other times she wasn’t making any factual assertions, or she was simply relaying the clients’ claims.
Powell nevertheless is off the hook in this particular case—although not in Dominion’s $1.3 billion lawsuit against her, which also names Giuliani as a defendant—because her main connection to New York was her interviews on Fox News, which is based there. Cohen considered these appearances not sufficient to establish personal jurisdiction over Powell. Giuliani, however, who lived in New York, and practiced law there up until June, when his license was suspended for promoting Trump’s stolen election fantasy, was not so lucky.
Cohen writes that Giuliani’s barrage of statements concerning SUSA “substantially provide a basis for their claim that they acted with actual malice, insofar that he showed a reckless disregard of the truth of his statements/or a high level of belief that said information was false.” Cohen notes that Giuliani claimed, among others, that SUSA was created “for the sole purpose of fixing election. It’s their expertise. “How to fix elections. Giuliani claimed also that the software of USA was being used to steal election results in other countries and it has ‘tried-and-true methods for fixing them.
Cohen rejected Giuliani’s claim that Cohen cannot be held responsible for making such statements as he was representing Trump. Cohen states that Giuliani’s claim that Giuliani’s statements are covered by absolute litigation privilege is unfounded. Cohen says that even though Giuliani made the defamatory statements while representing Donald Trump in litigation related the election, they were broadcast on Fox News so were not “defamatory words” spoken in a court proceeding.
Giuliani is able to still respond to Smartmatic’s or Dominion’s claims of defamation by proving that what he stated was correct. He has made repeated statements that the scheme that he described is “easily proveable” as well that he had conclusive proof of “machines that have been crooked and fraudulent ballots.” Giuliani didn’t manage to provide that evidence during any Trump campaign post-election litigations. However, there is a compelling incentive for him to do so now.