From today’s decision by the New York Intermediate Court of Appeals Smartmatic USA Corp. v. Fox Corp:
The causes of action for defamation were based on substantive allegations that defendant Giuliani (and defendant Powell, against whom the action is dismissed) made defamatory statements about plaintiffs’ involvement in the 2020 presidential election while knowing the statements to be false, or at least with reckless disregard for the truth.
Those causes of action also allege that defendants Fox News, Dobbs and Bartiromo did not merely report the newsworthy fact that the president’s campaign lawyers were making statements recklessly disseminating false information. Rather, the complaint alleges in detail that in their coverage and commentary, Fox News, Dobbs and Bartiromo effectively endorsed and participated in the statement with reckless disregard for, or serious doubt about, whether the claims or influence plaintiffs participated in the election. The fraud had no basis in fact or was supported by any reliable evidence.
In fact, according to the complaint, Fox News, Dobbs and Bartiromo stated that Smartmatic’s election technology and software were widely used to alter votes in the 2020 election and on Dominion machines, when they actually knew or could have easily known. Unless they are purposefully avoiding publicly available knowledge, that in 2020, Smartmatic technology was only used in Los Angeles County and that the vote change claim otherwise had no support. Based on the same rationale, the claims against Pirro, based on similar allegations of defamatory statements made with actual malice, must be reinstated.
However, the Supreme Court erred in dismissing defendant Giuliani’s third and fifth causes of action, and we reinstate those claims. As pleaded, those causes of action allege defamatory statements that constitute the basis for defamation per claim and do not require a plea of product disparagement or otherwise of special damages.
The court concluded that the suits against Fox Corp.—as opposed to Fox News—should have been dismissed (even though the plaintiffs could allege that “certain Fox Corp. employees played an affirmative role in publishing the challenged defamatory statements” or that “Fox Corp. completely dominated Fox News.” so as to be responsible for the acts of its subsidiary”).
and the court “rejected[d] to find that plaintiffs should be treated as limited-purpose public figures for alleging facts that, if true, would ‘clearly and convincingly’ show defamation with actual malice.”
Congratulations to Edward C. Wipper and Joel Erik Connoly (Benesch, Friedlander, Coplan & Aronoff, LLP), who represent Smartmatic.