Voting technology company Smartmatic and Fox News Media parent company Fox Corp. earned separate wins as part of their legal battle in New York court this week.
New York Supreme Court Judge David B. Cohen ruled that Smartmatic may proceed with its $2.7 billion defamation lawsuit against Fox Corp. However, in a separate ruling, the judge denied Smartmatic’s motion to toss out Fox’s countersuit. We may have a trial on our hands next year.
In a defamation lawsuit filed in 2021 in New York State court, Smartmatic alleged that Fox News intentionally lied about the voting tech company while misleading the public into the false belief that the 2020 presidential election was stolen from former President Donald Trump. Smartmatic claims that its reputation has been “irreparably harmed” by on-air rhetoric from former Fox host Lou Dobbs, and current hosts Jeanine Pirro, and Maria Bartiromo, along with Trump’s personal attorneys, Rudy Giuliani and Sidney Powell when they falsely deemed the company responsible for rigging election results against President Trump. Smartmatic’s voting machines and software were only used in one U.S. district in 2020 — Los Angeles County.
In its counter claim, Fox argues that the voting tech company’s lawsuit is really just an attempt at chilling free speech, and that Fox News Media was just covering newsworthy events and individuals surrounding the 2020 presidential election, not defaming Smartmatic.
In a counterclaim, filed n March 2022, Fox stated: “This lawsuit strikes at the heart of the news media’s First Amendment mission and right to inform on matters of public interest. Not only is Smartmatic advancing novel defamation theories that lack any grounding in law, but Smartmatic’s staggering damages claim is divorced from reality and serves no apparent purpose other than to generate speech-chilling headlines.”
Fox News, citing figures from Daniel R. Fischel, an expert hired by the network, in the counterclaim continued saying, “Yet by Smartmatic’s telling, it stood to make nearly $2 billion in annual revenue in 2025—a figure more than four times its highest reported revenues within the past nine years and more than 16 times its reported revenues in 2020.”
In his latest response, Justice Cohen concluded that there has yet to be a verdict on whether Smartmatic’s claims, including the $2.7 billion in damages, have a substantial basis.
Fox’s “argument here is that plaintiffs’ alleged damages are so extenuated from their actual lost profits that they were pleaded and/or sought in order to chill defendant’s free speech rights. That argument has not yet been adjudicated in any court,” the judge wrote.
In April of last year, Fox Corp. paid $787.5 million to Dominion Voting Systems to settle similar but separate defamation claims, just minutes before the two sides were to go to trial in a Delaware court. The settlement between Dominion and Fox won’t influence the current lawsuit, the judge stated on Wednesday, because that case was settled by the two parties, not the court.
“Finally, even assuming that the Delaware Court’s decision on summary judgment in the Dominion case estops defendants here, there remained a triable issue of fact for trial in that action as to whether defendants acted with actual malice, which is an element that plaintiffs need to prove here as well,” Judge Cohen writes. “Thus, not all elements of plaintiffs’ defamation claims have been already determined against defendants, and thus, they do not show that defendants are collaterally estopped from contesting that plaintiffs’ claims have a substantial basis in fact.”
Basically, Dominion settling with Fox News out of court does not prove the network’s guilt or provide Smartmatic evidence of Fox News’ guilt, for which it can ask for a dismissal of a counterclaim. The only way to be proven is through trial; since one has yet to occur, Fox News can proceed with its counterclaim.