FILED: NEW YORK COUNTY CLERK 08/19/2025 12:08 PM INDEX NO.

151136/2021
NYSCEF DOC. NO. 2478 RECEIVED NYSCEF: 08/19/2025

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
------------------------------------------------------------------------
)
SMARTMATIC USA CORP., SMARTMATIC )
INTERNATIONAL HOLDING B.V., and SGO )
CORPORATION LIMITED, )
) Index No. 151136/2021
Plaintiffs, )
) I.A.S. Part 58
-against- )
) David B. Cohen, J.S.C.
FOX CORPORATION, FOX NEWS NETWORK )
LLC, DEBI DOBBS AS ADMINISTRATOR OF THE ) Motion Seq. 65
ESTATE OF LOU DOBBS, DECEASED, MARIA )
BARTIROMO, and JEANINE PIRRO, ) Redacted Pursuant to
the Court's August 13,
)
2025 Order
Defendants. )
)
------------------------------------------------------------------------

SMARTMATIC’S MEMORANDUM OF LAW IN SUPPORT OF ITS

MOTION FOR SUMMARY JUDGMENT ON LIABILITY

J. Erik Connolly Edward C. Wipper

Nicole E. Wrigley Benesch, Friedlander,
Benesch, Friedlander, Coplan & Aronoff LLP
Coplan & Aronoff LLP 1155 Avenue of the Americas, 26th Floor
71 South Wacker Drive, Suite 1600 New York, New York 10036
Chicago, Illinois 60606 Telephone: 646.593.7050
Telephone: 312.212.4949 Email: [email protected]
Email: [email protected]
Email: [email protected]

Counsel for Plaintiffs Smartmatic USA Corp.,

Smartmatic International Holding B.V.,
and SGO Corporation Limited

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TABLE OF CONTENTS

Page
INTRODUCTION .......................................................................................................................... 1

OVERVIEW OF ARGUMENT ...................................................................................................... 3

FACTUAL BACKGROUND ......................................................................................................... 7

I. Fox faced an unprecedented backlash after its early call of Arizona. ................................. 7

II. Fox decided to “pivot” to embrace and amplify election fraud to win back its audience
and President Trump’s supporters. .................................................................................... 10

III. The Fox Defendants ran a prolonged Campaign about widespread voting fraud involving
voting machines. ............................................................................................................... 21

A. The main message of Fox’s Campaign was that Smartmatic participated in a

criminal conspiracy to rig the 2020 election. ........................................................ 22

B. The Fox Defendants published additional lies about Smartmatic to bolster the
criminal accusation that it rigged the election. ..................................................... 25

IV. The Fox Defendants knew, throughout the Campaign, that claims of widespread voter
fraud by machines were implausible and widely debunked. ............................................ 27

A. No one at Fox really believed widespread election fraud had taken place,
including claims about voting machines. .............................................................. 28

B. Fox possessed information debunking and contradicting the accusations from

multiple, credible sources. .................................................................................... 39

C. The Fox Defendants recognized Giuliani and Powell’s credibility issues before
and during the Campaign. ..................................................................................... 44

V. The Fox Defendants made a deliberate and calculated decision to do the wrong thing. 49

A. The “pivot” represented Fox News reverting to its tried-and-true playbook of

disinformation laced with xenophobia. ................................................................. 49

B. Fox decided it was acceptable to spread disinformation about the 2020 election
under the guise of “newsworthiness.” ................................................................... 52

C. The Fox Hosts promoted election disinformation to advance their own agendas. 53

VI. Fox only ended its Campaign after Smartmatic threatened to take legal action. ............ 57

LEGAL STANDARD ................................................................................................................... 59

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ARGUMENT ................................................................................................................................ 61

I. Smartmatic is entitled to summary judgment on falsity. ................................................. 61

A. Undisputed evidence establishes the truth about Smartmatic. .............................. 62

B. The Lies published by the Fox Defendants were far different than the undisputed
truths about Smartmatic. ....................................................................................... 69

C. None of the Publications involve non-actionable, pure opinions. ........................ 75

1. The Publications convey actionable facts about Smartmatic. ................... 75

2. The Publications would still be actionable as “mixed opinions.” ............. 79

II. Smartmatic is entitled to summary judgment on defamation per se. .............................. 81

III. Smartmatic is entitled to summary judgment on “of and concerning.” .......................... 83

A. The Publications named Smartmatic and their executives. .................................. 83

B. The Publications discussed Smartmatic’s machines and software. ...................... 86

C. Smartmatic is a small group of related companies. .............................................. 87

D. Individuals understood the Publications to be about Smartmatic. ........................ 88

IV. Smartmatic is entitled to summary judgment on publication. ......................................... 91

A. Fox News is responsible for the Publications. ...................................................... 92

B. The Fox Hosts are responsible for the Publications.............................................. 93

C. Fox Corporation is responsible for the Publications. ............................................ 99

1. Rupert and Lachlan exercise control and oversight over Fox News,
including over content............................................................................... 99

2. Rupert and Lachlan authorized the “pivot” that resulted in the Publications
and Campaign. ........................................................................................ 103

3. Fox Corp’s Board and executives had direct oversight responsibility for
preventing and addressing the Campaign’s defamatory content............. 105

4. Fox Corp is responsible for the Publications based on actions and

inactions of the Murdochs, other executives, and the Board. ................. 106

V. Smartmatic is entitled to summary judgment on actual malice......................................110

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A. Nearly everyone responsible acted with actual malice. ....................................... 111

1. Fox’s universal knowledge that the Lies had no support. ........................112

2. Fox decision-makers and show runners possessed contradictory

information and disregarded it. ................................................................117

3. Fox knowingly relied on sources it internally deemed to lack

credibility. ............................................................................................... 125

4. Fox’s own admissions show they did not believe the Lies about
Smartmatic. ............................................................................................. 130

5. Fox’s avoidance strategy as to Smartmatic shows deliberate intent to avoid

the truth. .................................................................................................. 132

B. The Fox Defendants cannot avoid this undisputed evidence of actual malice. .. 134

VI. Smartmatic is entitled to summary judgment on fair reporting privilege. .................... 136

A. No proceedings existed mentioning Smartmatic when many Publications aired

and were republished. ......................................................................................... 136

B. The Publications failed to attribute statements to any official proceeding. ........ 137

C. The Publications were not “substantially accurate” reports of any proceeding.. 139

CONCLUSION ........................................................................................................................... 140

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TABLE OF AUTHORITIES

Page(s)

Cases

Abakporo v. Sahara Reporters,

2011 WL 4460547 [EDNY Sept. 26, 2011] ..........................................................................138

Anderson v. Liberty Lobby, Inc.,

477 US 242 [1986] .................................................................................................................110

Anderson v. NY Telephone Co.,

35 NY2d 746 [1974] ................................................................................................................92

Bacon v. Nygard,
2019 WL 3254983 [Sup Ct NY County July 19, 2019] ....................................................93, 98

Biro v. Conde Nast,

883 FSupp2d 441 [SDNY 2012] .......................................................................................93, 94

Brach v. Congregation Yetev Lev D'Satmar, Inc.,

265 AD2d 360 [2d Dept 1999] ................................................................................................80

Brady v. Ottaway Newspapers, Inc.,

84 AD2d 226 [2d Dept 1981] ..................................................................................................87

Brentwood Pharmacy, Inc. v. Sheppard,

229 NYS2d 511 [Sup Ct 1962] ................................................................................................87

Brown v. Mack,
56 NYS2d 910 [Sup Ct 1945] ....................................................................................92, 94, 107

Bruno v. New York News, Inc.,

89 AD2d 260 [3d Dept 1982] ........................................................................................112, 117

Celle v. Filipino Rep. Enterprises Inc.,

209 F3d 163 [2d Cir. 2000]..............................................................................................82, 125

Chiaramonte v. Coyne,
2020 WL 434342 [Sup Ct, New York County 2020] ..............................................................60

Cholowsky v. Civiletti,
69 AD3d 110 [2d Dept 2009] ................................................................................................137

Collins v. Troy Publ’g Co. Inc.,

213 AD2d 879 [3d Dept 1995] ..............................................................................................112

iv

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Como v. Riley,
287 AD2d 416 [1st Dept 2001]................................................................................................81

Condit v. Dunne,
317 FSupp2d 344 [SDNY 2004] .............................................................................................94

Corp. Training Unlimited, Inc. v. National Broadcasting Co.,

868 F Supp 501 [EDNY 1994] ..............................................................................................138

Corrigan v. Bobbs-Merrill Coo,

228 NY 58 [1920] ....................................................................................................................83

Crane v. Bennett,
177 NY 106 [1900] ........................................................................................................107, 110

Crime Victims Ctr., Inc. v. Logue,

181 AD3d 556 [2d Dept 2020] ..............................................................................................112

Curtis Publishing Co. v. Butts,

388 U.S. 130 [1967] .......................................................................................................111, 129

Cuthbert v. Nat’l Org. for Women,

615 NYS2d 534 [3d Dept. 1994] .............................................................................................83

Dalbec v. Gentleman’s Companion, Inc.,

828 F2d 921 [2d Cir. 1987]........................................................................................83, 88, 117

Davis v. Boeheim,
24 NY3d 262 [2014] ................................................................................................................75

Davis v. Brown,
211 AD3d 524 [1st Dept 2022]................................................................................................80

Daytree at Cortland Square, Inc. v. Walsh,

332 FSupp3d 610 [EDNY 2018] .............................................................................................88

DeBlasio v. North Shore University Hosp.,

213 AD2d 584 [2d Dept 1995] ................................................................................................88

Delligatti v. U.S.,
145 S Ct 797 [2025] ...............................................................................................................109

Dershowitz v. Cable News Network, Inc.,

541 FSupp3d 1354 [SD Fla. 2021] ........................................................................................111

DiFolco v. MSNBC Cable L.L.C.,

622 F3d 104 [2d Cir. 2010]......................................................................................................81

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Dominion, Inc. v. Fox News Network, LLC,

2021 WL 5984265 [Del. Super. Dec. 16, 2021] .....77, 79, 82, 83, 93, 132, 133, 136, 137, 138,
139

Easton v. Pub. Citizens, Inc.,

1991 WL 280688 [SDNY Dec. 26, 1991] .............................................................................136

Elias v. Rolling Stone LLC,

872 F3d 97 [2d Cir. 2017]..................................................................................................87, 88

Firth v. State,
98 NY2d 365 [2002] ................................................................................................................93

Franklin v. Daily Holdings, Inc.,

135 AD3d 87 [1st Dept 2015]..........................................................................................61, 117

Gatz v. Otis Ford, Inc.,

262 AD2d 280 [2d Dept 1999] ................................................................................................83

Geisler v. Petrocelli,
616 F.2d 636 [2d Cir. 1980].....................................................................................................88

Gelenscer v. Orange Cnty. Pubs Div. of Ottaway Newspapers, Inc.,

116 AD2d 696 [2d Dept. 1986] .........................................................................................84, 85

Geraci v. Probst,
15 NY3d 336 [2010] ..........................................................................................................82, 94

Giuffre v. Dershowitz,
410 F Supp 3d 564 [SDNY 2019] ...........................................................................................98

Greenberg v. CBS, Inc.,

69 AD2d 693 [2d Dept 1979] ..................................................................................................98

Greenberg v. Spitzer,
155 AD3d 27 [2d Dept 2017] ................................................................................................139

Gross v. Cantor,
270 NY 93 [1936] ....................................................................................................................87

Gross v. New York Times Co.,

82 NY2d 146 [1993] ............................................................................75, 77, 79, 110, 112, 125

Guccione v. Flynt,
618 FSupp 164 [SDNY 1985]................................................................................................117

Harte-Hanks Commc'ns, Inc. v. Connaughton,

491 US 657 [1989] .................................................................................................111, 125, 133

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Harwood Pharmacal Co. v. Nat'l Broad. Co.,

9 NY2d 460 [1961] ......................................................................................................82, 86, 87

Herbert v. Lando,
441 US 153 [1979] .........................................................................................................111, 130

John Langenbacher Co. v. Tolksdorf,

199 AD2d 64 [1st Dept 1993]............................................................................................60, 83

Kaplan v. Central Conference of American Rabbis,

2019 WL 6269047 [Sup Ct, New York County 2019] ............................................................60

Karedes v. Ackerley Grp., Inc.,

423 F3d 107 [2d Cir. 2005]....................................................................................................139

Kasavana v. Vela,
172 A.D.3d 1042 [2d Dept 2019] ................................................................................61, 76, 82

Khalil v. Fox Corp.,

630 FSupp3d 568 [SDNY 2022] ...................................................................77, 78, 79, 93, 138

Lake Shore & M.S. Ry. Co. v. Prentice,

147 US 101 [1893] .................................................................................................................111

Larsen v. Brooklyn Daily Eagle,

165 AD 4 [2d Dept 1914] ........................................................................................................87

Levy v. Nissani,
179 AD3d 656 [2d Dept 2020] ..........................................................................................76, 78

Liberman v. Gelstein,
80 NY2d 429 [1992] ................................................................................................................83

Martin v. Daily News L.P.,

121 AD3d 90 [1st Dept 2014]................................................................................................139

May v. Syracuse Newspapers, Inc.,

250 AD 155 [3d Dept 1937] ..................................................................................................138

McNamee v. Clemens,
762 FSupp2d 584 [EDNY 2011] .......................................................................................77, 80

Miserendino v. Cai,
218 AD3d 1261 [4th Dept 2023] .............................................................................................79

Moraes v. White,
571 FSupp3d 77 [SDNY 2021]................................................................................................80

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Morelli v. Wey,
2016 WL 7386549 [Sup Ct NY County 2016] ........................................................................83

Moyle v. Franz,
46 N.Y.S.2d 667 [2d Dept 1944] .............................................................................................92

New Testament Missionary Fellowship v. E.P. Dutton & Co.,

112 AD2d 55 [1985] ......................................................................................................111, 129

New York Times Co. v. Sullivan,

376 US 254 [1964] .................................................................................................................111

Osorio v. Source Enterprises, Inc.,

2006 WL 2548425 [SDNY Sept. 5, 2006]...............................................................................91

Palin v. New York Times Co.,

940 F3d 804 [2d Cir. 2019]....................................................................................................117

Penn Warranty Corp. v. DiGiovanni,

10Misc3d 998 [Sup Ct 2005] ...................................................................................................91

Pisani v. Staten Island Univ. Hosp.,

440 FSupp2d 168 [EDNY 2006] .............................................................................................94

Poon v. Nisanov,
162 A.D.3d 804 [2d Dept 2018] ..............................................................................................60

Prince v. Fox Television Stations, Inc.,

2011 WL 5901926 [Sup Ct 2011]............................................................................................88

Prozeralik v. Cap. Cities Commc'ns, Inc.,

82NY2d 466 [1993] .................................................................................................93, 110, 125

Rinaldi v. Holt, Rinehart & Winston, Inc.,

42 NY2d 369 [1977] ................................................................................................................76

Rivera v. Greenberg,
243 AD2d 697 [2d Dept 1997] ..............................................................................................138

Robertson v. Doe,
2009 WL 10676484 [SDNY Dec. 17, 2009] ...........................................................................92

Ruder & Finn v. Seaboard Sur. Co.,

52 NY2d 663 [1983] ................................................................................................................60

Scacchetti v. Gannett Co., Inc.,

123 AD2d 497 [4th Dept 1986] .............................................................................................112

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Schaffran v. Press Publ. Co.,

258 NY 207 [1932] ................................................................................................................139

Schermerhorn v. Rosenberg,
73 AD2d 276 [2d Dept 1980] ..................................................................................................99

Schoepflin v. Coffey,
162 NY 12 [1900] ....................................................................................................................94

Sharon v. Time, Inc.,

599 FSupp 538 [SDNY 1984]................................................................................................111

Silsdorf v. Levine,
59 NY2d 8 [1983] ....................................................................................................................80

Smartmatic USA Corp., v. Fox Corp.,

2022 WL 685407 [Sup Ct New York County, Mar. 08, 2022] .........................................59, 60

St. Amant v. Thompson,

390 US 727 [1968] .................................................................................................................125

Steinhilber v. Alphonse,
68 NY2d 283 [1986] ................................................................................................................79

Sweeney v. Prisoners’ Legal Services of New York, Inc.,

84 NY2d 786 [1995] ..............................................................................................................132

Thome v. Alexander & Louisa Calder,

709 AD3d 88 [1st Dept 2009]..................................................................................................60

Torah v. Hodak,
147 AD3d 502 [1st Dept 2017]................................................................................................91

US Dominion, Inc. v. Fox News Network, LLC,

2023 WL 2730567 [Del. Super. Ct. Mar. 31, 2023] ......................................................133, 136

Van Arsdale v. Fitzgerald,

89 NYS2d 535 [Sup Ct 1949] ..................................................................................................92

WJLA-TV v. Levin,
264 VA 140 [2002] ..................................................................................................................85

Wood v. Raffensperger,
No. 20-cv-4651 (N.D. Ga.) ................................................................................................7, 137

Zervos v. Trump,
171 AD3d 110 [1st Dept 2019]................................................................................................78

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Zervos v. Trump,
59 Misc. 3d 790 [Sup Ct, New York County 2018] ................................................................83

Zuckerbrot v. Lande,
75Misc3d269 [Sup Ct 2022] ....................................................................................................98

Zuckerman v. City of New York,

49 NY2d 557 [1980] ..........................................................................................................60, 61

Other Authorities

CPLR 130-1.1 ..............................................................................................................61, 62, 70, 74

CPLR 3212.....................................................................................................................................60

Restatement (Second) of Torts §581..............................................................................................92

Rodney Smolla, 1 Law of Defamation § 3:42.50 [2d ed. 2024] ..................................................111

Rodney Smolla, 1 Law of Defamation § 4:40 [2d ed. 2024] .........................................................88

Rodney Smolla, 2 Law of Defamation §8:67.50 [2d ed. 2024] ...................................................137

Rodney Smolla, Law of Defamation, § 4:71 [2d ed. 2024] ...........................................................87

Seelman, E.P., The Law of Libel and Slander in the State of New York §141
[1941] .......................................................................................................................................92

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INTRODUCTION

Fox deliberately deceived its audience with utter contempt. Rupert and Lachlan Murdoch

knew President Trump lost the 2020 election. In private, they mocked President Trump and his

claims. They were not alone. Throughout Fox, from top to bottom, directors, executives, producers

and hosts knew with absolute certainty that Smartmatic voting machines were not used to rig the

2020 election, ridiculed the notion of widespread election fraud, and considered those suggesting

the 2020 election would be reversed to be “crazy” and “nuts.” That is what they knew, said, and

did behind closed doors. In public, Fox News told its audience the opposite. Under the guise of

“respecting the audience,” and cynical justification of “newsworthiness,” Fox News systematically

promoted the inflammatory and false narrative that Smartmatic—smeared as a dirty Venezuelan

company—had deployed software throughout the United States to steal votes from President

Trump. The Murdochs and their executives believed this was a story that President Trump’s

supporters wanted to hear, so that is what Fox News told them even though no one believed it to

be true.

Fox’s decision to embrace, endorse, and amplify baseless election fraud claims became

known as the “pivot.” Before the pivot, the Murdochs directed Fox News towards neutral ground

regarding the 2020 election, which included allowing the Decision Desk to be the first to call

Arizona for Joe Biden. But that call resulted in an unprecedented backlash against Fox News from

President Trump, his supporters, and its previously loyal audience. Facing that backlash, the

Murdochs and Fox News’ CEO decided to “pivot” and lean into election fraud claims they

personally believed were baseless. After the “pivot,” dissenters within Fox who wanted to tell the

audience the truth were punished, employees associated with the Arizona call were fired, and

advocates for election fraud claims were promoted and highlighted. After the pivot, for one month,

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Fox pushed the narrative that Smartmatic (a company that only operated in Los Angeles County)

had participated in a criminal conspiracy to rig the 2020 election.

Fox News’ “pivot” was designed to boost ratings, which it did. Good for Fox. It devastated

Smartmatic. After decades of successful elections worldwide, Smartmatic believed its

groundbreaking work with Los Angeles County would serve as a springboard for future success in

the United States and globally. That did not happen. Instead, Smartmatic and its employes received

chilling threats:

“You lot are in for a rude awakening.”

***

“You will be hunted.”

***

“The only way to resolve your interference with Western democracy is to

shoot dead your company executives.”

Beyond threats, Smartmatic’s prospects and reputation have been destroyed. Smartmatic’s

successful deployment of state-of-the-art technology in Los Angeles County was not the start of

something great; it marked the end. Smartmatic is now fighting to survive. Over 100 employees

have lost their jobs. Billions in value have forever been lost. None of this had to happen. And none

of it would have happened if those in charge of Fox cared about Fox News telling the truth or the

consequences of falsely accusing a company of committing one of the biggest crimes in history.

This betrayal of the truth came as no surprise to Fox’s leadership. Just days before the

“pivot,” Fox’s leadership was reminded (if they needed a reminding) that Fox News had abandoned

“fair and balanced” coverage in favor of pushing conspiracy theories and xenophobic content.

Rather than addressing these concerns, Fox doubled down. As Tucker Carlson himself candidly

assessed, what was being alleged about Smartmatic “would amount to the single greatest crime in

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American history.” Yet Fox promoted these claims anyway, driven by personal agendas: Fox

wanted to win back the audience, Dobbs wanted to help President Trump “retake the White

House,” Pirro sought a pardon for her ex-husband, and Bartiromo desired to be known as a

“fighter” for overturning the election.

Where does that leave us? Fox remains brazenly unapologetic, refusing to issue a single

retraction despite overwhelming contrary evidence. Rupert Murdoch even said he was “proud” of

the coverage. Other Fox executives and hosts said the same. Smartmatic is, therefore, left seeking

recourse with this case, this motion, and this trial. Smartmatic’s motion for summary judgment

aims to narrow the issues for the jury to a single, crucial question: How much should Rupert and

Lachlan’s media empire pay for promoting an intentional falsehood that destroyed a voting

technology company and eroded public trust in American democracy itself? The Fox Defendants

have no evidence to support, or legal authority to excuse, what they did. Money cannot buy facts

that do not exist. Delay does not change the law. The undisputed evidence, aligned with clear New

York precedent, demands summary judgment for Smartmatic on liability. The jury will need to

decide on damages. Justice demands accountability.

OVERVIEW OF ARGUMENT

The Court should grant Smartmatic summary judgment on the liability elements for a

defamation and disparagement claim against each Fox Defendant, including finding as a matter of

law that: (1) the statements at issue were false, (2) the statements were defamatory per se, (3) the

Publications were “of and concerning” Smartmatic and its products, (4) each of the Fox Defendants

is responsible for the Publications, and (5) the Fox Defendants acted with actual malice. The Court

should also grant summary judgment in Smartmatic’s favor on the fair reporting privilege.

Falsity. The lies about Smartmatic were not mere exaggerations, they were fabrications.

While Fox claimed Smartmatic rigged a national election, the truth is undeniable. Smartmatic and

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its software were not used to rig the 2020 election or switch votes away from President Trump.

Smartmatic’s role was limited to Los Angeles (“LA”) County. Smartmatic did not provide any

assistance, technology or software anywhere else. Its machines and software were not designed to

rig or fix elections, did not have a backdoor for vote monitoring, and never had a manual describing

how to switch votes. Nor were its machines connected to the Internet. Smartmatic’s machines

allowed voters to mark their ballots—that is all. The geographic and technological impossibility

of Fox’s claims is beyond dispute. These undisputed facts disprove all accusations the Fox

Defendants endorsed and amplified about Smartmatic.

Defamatory Per Se. This is textbook defamation per se. The Fox Defendants accused

Smartmatic of rigging the 2020 election with its machines and software. This is an accusation of a

crime—the greatest non-violent crime in U.S. history. An accusation that strikes at the heart of

Smartmatic’s business integrity. An accusation that tarnished Smartmatic’s reputation both

domestically and globally. As this Court has already held, the accusations made in the Publications

qualify as defamation per se, which means damage to Smartmatic’s reputation is presumed and

the jury should decide the damage amount.

“Of and Concerning” Smartmatic. The Publications did not merely mention

Smartmatic—they explicitly targeted Smartmatic so as to scare the audience into thinking that

“Venezuelans” were rigging the election. The Publications discussed Smartmatic’s software and

its alleged use by Dominion, and invented connections to Dominion. The Publications claimed

foreign influence on the U.S. election involving Smartmatic, displayed the name of Smartmatic’s

CEO when referring to foreign actors responsible for rigging the election, and attacked the

Chairman of both Smartmatic USA and SGO. These statements made the Publications “of and

concerning” Smartmatic. Smartmatic’s name, brand, business, and technology were repeatedly

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targeted by the Fox Defendants. They vilified Smartmatic as a foreign entity corrupting American

democracy. By name and implication, Fox made Smartmatic the central villain in their

manufactured conspiracy.

Publication. Responsibility flows through every level of Fox’s hierarchy. The Fox Hosts—

Lou Dobbs, Maria Bartiromo, and Jeanine Pirro—were not passive conduits but active participants

in co-creating lies about Smartmatic. They are responsible for the Publications. On each of their

shows, they made false statements, solicited false statements from their guests, and endorsed the

false narrative that Smartmatic rigged the 2020 election. And, after recording the shows, the Fox

Hosts further disseminated the Publications by having them posted to their social media accounts.

The Fox Hosts chose actions that led to the creation and dissemination of lies about Smartmatic.

Fox News is responsible for the Publications, which were broadcast on Fox News Channel

and Fox Business Network and further disseminated via its websites. Fox News executives and

producers enabled and directed this calculated campaign. They were directly involved in

overseeing the Publications and talent associated with them. Executives and producers throughout

Fox News could have prevented the creation and spread of the defamatory messages conveyed

during the Publications. They chose not to do so. Instead, they encouraged and oversaw a “pivot”

to embrace lies, including lies about Smartmatic.

Fox Corp is responsible for the Publications. The “buck stops” with Rupert and Lachlan

Murdoch when it comes to Fox News. Fox Corp has consistently informed its shareholders and

the public that the Murdochs maintain definitive control over Fox News. During November and

December 2020, facing an unprecedented backlash, the Murdochs exercised that control to

greenlight Fox News to promote election fraud claims, including those targeting Smartmatic. They

possessed both the power and obligation to prevent this situation, yet they failed to act. They

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approved the “pivot” and empowered those who spread and approved of the disinformation. It

would take astonishing revisionist history to conclude the Murdochs did not control Fox News.

Actual Malice. The Fox Defendants’ cupboard is bare. They had no evidence to support

their accusation that Smartmatic rigged the 2020 election. None can point to sources that spoke

with credibility in support of the accusation. To the contrary, throughout the ranks, everyone at

Fox considered Giuliani and Powell to be simply making it up. Despite having unlimited resources,

the Fox Defendants possessed nothing, literally nothing, to substantiate the message they spread

about Smartmatic for a month. That alone constitutes reckless disregard for the truth. And there is

more.

The Fox Defendants knew the truth. The Fox Defendants knew the truth from Smartmatic,

which responded to an email indicating its operations were limited to LA County. They knew the

truth from Dominion, which provided extensive “Setting the Record Straight” communications to

various hosts and executives. They knew the truth from state governments affirming the absence

of widespread voter fraud; from federal agencies reaching the same conclusion; from trusted

Republican sources; and from assessments provided by election security experts. They knew the

truth from the “Brainroom,” their own internal unit designed with the sole purpose of determining

fact from fiction. They possessed overwhelming contradictory information from credible sources.

This too shows the Fox Defendants’ reckless disregard for the truth. And there is even more.

The Fox Defendants have confessed. Hardly a person, if anyone, at Fox believed the claims

they were broadcasting. Executives, producers, and hosts did not believe that widespread voter

fraud had occurred. Their own fact-checking efforts disproved the accusation. They also believed

guests appearing on their shows to discuss the accusation were nuts, crazy, and unreliable. In

private, and in depositions, the Fox Defendants acknowledge that they never thought voting

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machines had rigged the 2020 election, but they promoted that message nonetheless during the

Publications to woo back their audience.

No Fair Reporting. Fox’s last-ditch defense of “fair reporting” collapses under scrutiny.

Smartmatic was first referenced in one exhibit filed in support of a motion in Wood v. Raffensperger

on November 17. None of the Publications were about that lawsuit. They did not mention the case;

they did not identify the case; and they did not indicate to the audience that they were summarizing

what took place in that case. More, none of the Publications fairly summarized what took place in

that case or accurately described the exhibit as what it was—an anonymous, unsigned piece of

paper. This was not “fair reporting”—it is a reverse engineered legal defense. And it is legally and

factually dishonest.

FACTUAL BACKGROUND1

“Seek truth and report it.” (¶1182.) A fundamental responsibility of news organizations is

their commitment to factual reporting. The public trusts them to do this. However, this sacred trust

was compromised when the Fox Defendants chose to embrace and amplify a false narrative about

Smartmatic rigging the 2020 election. In this critical moment, they betrayed their audience.

Confronted with the choice between maintaining viewership through truthful reporting versus

preserving ratings through deception, they opted for the latter—deliberately deceiving the very

audience they claim to respect so much.

I. Fox faced an unprecedented backlash after its early call of Arizona.

On election night, November 3, 2020, Fox News was the first major network to call the

razor close race in Arizona for Biden. (¶227.) President Trump’s displeasure with the early call

1
All citations in the form of (¶__.) or (¶__) refer to Smartmatic’s Statement of Undisputed Material
Facts submitted in support of its Motion for Summary Judgment. Emphasis has been added to the
quoted text throughout.

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was immediately made known. His son-in-law, Jared Kushner, called Rupert Murdoch to complain

about the “terrible” call with President Trump “shouting” in the background. (¶228.) President

Trump’s senior campaign advisor, Jason Miller, also texted Bill Sammon, the Fox News executive

responsible for the Decision Desk, saying it was “WAY too soon to be calling Arizona” and

expressed disbelief that the network was “so anxious to pull the trigger.” (¶229.) Shortly after

midnight, Lachlan Murdoch and Suzanne Scott, CEO of Fox News, were told: “Lots of

conservative criticism of the [Arizona] call.” (Id. ¶230.)

The conservative backlash against Fox News intensified to unprecedented levels. On

November 4, Viet Dinh, CLO of Fox Corp, and Raj Shah, SVP of Brand Protection at Fox Corp,

noticed “a sharp spike in conservative criticism of Fox.” (¶231.) That day, Fox News CFO Joseph

Dorrego alerted Lachlan and other Fox Corp executives to a concerning drop in the company’s

share price, noting: “Today’s downward pressure is principally being driven by the potential

election results and our exposure to the news.” (¶232.) Dorrego forwarded this message to CEO

Scott, who shared it with her direct reports at Fox News. (¶233.) The severity of audience backlash

was immediately apparent to Fox personnel, with host Jesse Watters observing: “There’s an

uprising vs. fox like I’ve never seen.” (¶235.)

On November 5, Jay Wallace, President and Executive Editor of Fox News, was told the

network was “taking major heat for [Arizona] call” and that “viewers are also chanting ‘Fox News

sucks.’” (¶236-237.) On November 6, Lachlan and Dinh were told that Fox News was seeing a

“high spike in negative conservative commentary” in response to “calls made by the [Decision

Desk]” that had never been seen before. (¶238.) On November 7, Irena Briganti, Senior Executive

President of Communications, forwarded Scott a viewer email with the subject line “Fuck Fox

News” stating: “FYI I have many of these and think it’s worth cataloguing everything…” (¶243.)

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GOn November 8, Shah was told that Fox News had been “blown out last night” in terms of ratings

and viewers. (¶245.) That same day, Rupert told Scott: “Getting creamed by CNN! Guess our

viewers don’t want to watch it.” (¶246.)

On November 9, Scott forwarded Lachlan an email from Tucker Carlson that perfectly

summarized the situation: “I’ve never seen a reaction like this, to any media company. Kills me

to watch it.” (¶249.) That same day, Carlson, Sean Hannity and Laura Ingraham texted about an

article related to the backlash: with Ingraham saying “we are screwed,” Hannity saying “[t]he

network is being rejected,” and Carlson saying “I’ve heard from angry viewers every hour of the

day all weekend, including at dinner tonight.” (¶250.) As the weeks passed, veteran Fox News

executives expressed deep concern about the network’s reputation crisis after the Arizona call—a

situation Senior Vice President of Communications Irena Briganti described as having “cost the

company massive, incalculable damage.” (¶260-262.)

Compounding the problem, Fox realized that its rival, Newsmax, was gaining support from

President Trump and his supporters. On November 10, Scott told the analytics department to

“[k]eep an eye and continue to report on Newsmax.” (¶253.) And that day, Wallace commented to

Scott that “Newsmax surge is a bit troubling – truly is an alternative universe when you watch, but

it can’t be ignored. (¶254.) Scott agreed. (Id.). She knew that Newsmax had a “very strong

showing” and was “whacking” Fox News. (¶252,370.) Wallace and Scott were not alone in their

observations about the Newsmax surge. (¶370-371,376.) It was the topic de jour within Fox.

(¶255.)

***

(Id. ¶256.)

***

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(Id.
¶257.)

***

“We are not concerned with losing market share to CNN or MSNBC right
now. Our concern is Newsmax and One America News Network.” (¶258.)

***

(¶259.)

***

“I feel in 2012, people were demoralized. Today, they feel betrayed. And
yes, there is competition.” (Id. ¶260.)

***

“They [Newsmax] definitely have a strategy across all shows to try and target
and steal our viewers.” (¶252(d).)

***

(¶253.)

Even Rupert noticed, telling Scott that “these people [Newsmax] should be watched, if

skeptically.” (¶264.) Given that the backlash against Fox News was “everywhere,” Shah advised:

“Short of bold public action, we’re going to bleed for a while.” (¶261.) But bold action was already

in the works to stop the bleeding.

II. Fox decided to “pivot” to embrace and amplify election fraud to win back its audience
and President Trump’s supporters.

Rupert, Lachlan, and other Fox executives were unwilling to let Fox News “bleed for a

while.” Fox News represented the crown jewel in Fox Corp’s media empire,

(¶5-6.)

(¶6-7.) Fox News was “among the most influential and recognized news brands in the

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world,” and “the strength of the Fox Corp’s brands,” including Fox News, was important to

maximizing Fox Corp’s value and share price. (¶8-9.) This was not a business that leadership could

afford to ignore.

Before the “pivot,” Rupert and Lachlan steered Fox News towards a moderate position

regarding President Trump’s chances to prevail in the 2020 election. On November 3, Rupert

rejected Jared Kushner’s overtures following the Arizona call because “the numbers are the

numbers.” (¶228.) On November 6, Rupert instructed Scott on how long to wait on calling

Pennsylvania and how to message the call in a neutral way. (¶239-240.) That same day, a “memo”

went out from Rupert to stop “casting doubt on the election.” (¶272-280.) Fox News talent was

informed that “in the days after the election [] Rupert Murdoch preferred that the Company not

hammer fraud so aggressively.” (¶272.) The talent was told: “If we call the race, you cannot, under

any circumstances, cast doubt on [the election]” because “the powers that be are not having any of

it.” (¶277.) On November 7, in explaining why he delayed calling the election, Rupert wrote, “We

should and could have gone first but at least being second saves us a Trump explosion!” (¶278.)

(Id.) Lachlan agreed: “I think good to be careful. Especially as we are still somewhat exposed on

Arizona.” (¶279.)

They had a reason for charting this moderate approach. They did not believe claims about

widespread election fraud. (¶681a,706-714.) On November 6, Rupert explained: “Half of what

Donald [President Trump] said was good. The other half bullshit and damaging . . . With several

states now disappointingly favoring Biden hard to claim foul everywhere.” (¶273.) That same day,

Rupert explained to Scott that President Trump had “to get some real evidence” to support his

election challenges. (¶240.) He also told Scott to be on the lookout if “Trump becomes a sore

loser.” (¶274.) On November 7, Rupert and Lachlan approved an article for The New York Post

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that concluded: “The president’s aides have shown no evidence that the election was ‘stolen.’ It

undermines faith in Democracy, faith in the nation, to push baseless conspiracies. Get Rudy

Giuliani off TV.” (¶280.)

But, shortly thereafter, Rupert and Lachlan understood that Fox News had to change

direction. (¶281-282,284-296.) On November 8, they had a “long talk” with Scott, CEO of Fox

News, about Fox News. (¶281.) They discussed “the decline in viewership for Fox News following

the November 3 election,” “the types of guests who would be booked on shows,” and what the

Murdochs “were expecting to be done at Fox News Media,” including “strategies for Fox News

Media to address the drop in ratings.” (¶281-282.) These were not unusual subjects of discussion.

Rupert and Lachlan frequently meet with Scott to discuss Fox News’ coverage and positioning.

(¶1205-1207,1211-1213.) They were both part of the “Fox News Executive Staff” with Scott.

(¶1184.)

This conversation between the Murdochs and Scott culminated in what became known as

the “pivot”—a strategic shift to position Fox News as supportive of election rigging claims. (¶284.)

The initiative started on November 9, when Scott circulated a New York Post article stating: “If

there’s fraud in the 2020 election, then we must find it.” (¶283.) Scott explained to her executives:

“Many in our loyal audience agree with her.” (Id.) (¶283.) Tom Lowell, EVP at Fox News,

responded: “Not only do they agree with her . . . but they think Democrats and mainstream media

outlets are suggesting their concerns are stupid, and they should go pound sand . . . Going to

address [at the editorial meeting].” (Id.) (¶283b.)

At that day’s editorial meeting, Lowell instructed everyone to follow this storyline: “the

way the finish of this race unfolded strengthened a deep seem of mistrust among a significant

portion of [President Trump’s] supporters. It does not matter whether that mistrust is well

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founded, it is how they feel, and it is real.” (¶283b-e.) Lowell clarified that the “mistrust”

referenced was “the audience’s mistrust in the election results.” (¶283f.) At this stage, while Fox

executives privately dismissed claims of widespread election fraud as baseless, they strategically

allowed these narratives to flourish on their platform. (¶283-298,306,312,318-323.) Behind closed

doors, they decided to put ratings and viewer retention over the truth, deliberately misleading their

audience.

Scott also confirmed with Rupert and Lachlan that she was implementing the pivot. That

same morning, November 9, she told Rupert: “Lots of good stories for us today. Time to pivot.”

(¶284.) She continued: “Pivot but keep the audience who loves and trusts us . . . we need to make

sure they know we [aren’t] abandoning them and still champions for them.” (Id. ¶284a.) Rupert

agreed, replying: “Thanks. All very true. Lots of sane Fox viewers still believe in Trump. Jack

Keane for instance.” (Id. ¶284b.) Earlier that morning, Keane had told Rupert: “[T]he Trump

lawyers are alleging that the Democrats developed a software computer program to switch and

also add votes which would help explain the reason for the vote stoppage.” (¶285a.) Rupert knew

Scott “planned on pivoting” Fox News’ coverage, that President Trump’s supporters were

“interested in coverage of [] serious election fraud allegations,” and no issue was “getting more

attention from President Trump’s supporters than the rigged election claims.” (Id. ¶286-289.)

Scott also discussed the “pivot” with Lachlan on November 9. Early in the day, she “spoke

to Lachlan” and, based on that conversation, wanted to make sure that Raj Shah (SVP of Brand

Protection at Fox Corp) was kept in the loop on “everything we are doing” to counter the backlash

and how Fox News was “changing based on our coverage this weekend.” (¶290.) That evening,

Scott told Lachlan:

It’s two days after Biden was declared President elect. Viewers going through
the 5 stages of grief. It’s a question of trust – the [Arizona] call was damaging

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but we will highlight our stars and plant flags letting the viewers know we
hear them and respect them.

(¶291.) Lachlan confirmed that he understood that the pivot meant embracing the election fraud

claims. He wrote: “Yes. But needs constant rebuilding without any missteps. Cavuto was bad

today I hear.” (¶292.) The “Cavuto” incident referenced by Lachlan involved Fox News host, Neil

Cavuto, cutting away from a White House press conference because the press secretary “claimed,

without evidence, that Democrats were inviting fraud and illegal voting.” (¶293.) Scott thought

describing election fraud claims as unfounded was “terrible” because it was “disrespecting the

audience.” (¶309.)

November 9th became known as “Day 1” of the “pivot” throughout Fox. On November 9,

in response to Lachlan’s comment about the Cavuto incident, Scott wrote: “Yes today is day one

and it’s a process.” (¶296.) Day 1 involved Fox News executives“[t]rying to get everyone to

comprehend we are on war footing.” (¶304.) Scott discussed a “multi prong war” and executives

being “more proactive with everyone.” (¶297.) According to Scott, “every decision need[ed] to be

made to bring in the strongest audience.” (¶320.) In communications with Rupert on November

10, Scott told him: “Yesterday was a full day of rallying the talent. All in a good head space overall.

Will also need to make some big changes in weeks and months ahead.” (¶305.)

The pivot, approved by the Murdochs and implemented by Scott, had four parts. First,

Fox News clamped down on reporting that could be perceived as skeptical of election fraud claims.

For example, Kristin Fisher was a “rising star” at Fox News before she expressed skepticism about

the election fraud claims. (¶334a.) During a broadcast, Fisher “called out to the audience that Mr.

Giuliani failed to provide hard evidence of voter fraud sufficient to overturn the election.” (¶337-

38.) Fisher immediately received a call from her boss, who reprimanded her and “said that he’d

spoken with higher-ups and that the consensus was that [she] needed to do a better job of respecting

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the audience.” (¶339.) Fisher knew she was “getting into trouble” for truthfully reporting on the

election fraud claims. (¶340-344.)

The “higher-ups” coming down on Fisher were Scott and Wallace. (¶335.) Scott explained

the reason for the reprimand:

I am getting major incoming on her editorializing at the top of Dana’s show

and her dismissive tone and indifference to the audience. We need to manage
this. . . I can’t keep defending these reporters who don’t understand our
viewers and how to handle stories. The audience feels like we crapped on
and we have damaged their trust and belief in us. We lost 25,000 subs from
Fox Nation. We can fix this but we cannot smirk at our viewers any longer.

(¶335.) Commenting on President Trump’s supporters, and her belief about what they wanted to

hear, Scott said: “[Y]ou can’t give the crazies an inch right now . . . they are looking for and

blowing up all appearances of disrespect to the audience.” (¶336.) Fisher was “unofficially

benched until inauguration day” as punishment. (¶341.)

Fisher was not the only one to suffer for not holding the party line in the post-pivot world.

Another host, Leland Vittert, had already drawn the ire of Lachlan and Scott. Vittert had conducted

an interview with a Trump campaign official and raised “the numerical reality” that President

Trump could not prevail. (¶330.) Lachlan did not like it. He told Scott:

“News guys have to be careful how they cover this rally. So far some of the
side comments are slightly anti, and they shouldn’t be. The narrative should
be this is a huge celebration of the president [President Trump].”

***

“Leland is not good. Smug and obnoxious.”

***

“Need to get him off.”

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(¶331.) Lachlan described Vittert’s coverage as “crazy.” Scott agreed, responding: “Yes we get

them all in line.” She got them in line by having Wallace contact Vittert for a dressing down and

Vittert’s boss for good measure. (¶332,333.)

Even some of Fox News’ best-known talent were taken to task by Scott after the pivot.

Eric Shawn is a good example. After the pivot, Shawn did a segment where he “fact-checked

claims of voter fraud pushed by President [] Trump and a guest who appeared on [Hannity] with

claims of driving ballots across state lines.” (¶345,349.) Scott was furious. She wrote:

This has to stop now. I’m going to address this with you [Meade Cooper] and
Jay [Wallace] and [Tom] Lowell tomorrow. This is bad business and clearly
a lack of understanding what is happening in these shows. The audience is
furious and we are just feeding them material. Bad for business.

(¶350.) Meade Cooper agreed. She responded: “Yep we don’t need to give them a reason to tune

us out.” (¶350a.) Cooper understood her marching orders after the pivot. (¶350a.) Post-pivot fact

checking was “bad for business.” (¶350.)

Second, Fox Corp terminated Fox News executives and talent that were seen as anti-

President Trump or skeptical of election fraud claims. For example, Bill Sammon and Chris

Stirewalt had a major role in the Arizona call. Up through election day, Fox advertised them and

the Decision Desk as “best in class.” (¶114-119,121-125a.) They were both purged from Fox News

as part of the pivot. As for Sammon, on November 9, Scott wrote:

Sammon not understanding the impact to the brand and the arrogance of
calling [Arizona] and how that played out by him is astonishing. Mishkon is
a scientist – but Bill is supposed to be a top executive whose job it also is to
protect the brand.

(¶389.) For Scott, after the pivot, “Sammon is no longer a good fit. He just doesn’t get it.” (¶391.)

Rupert agreed and pulled the trigger on the termination. On November 20, he told Scott that it may

be “best to let Bill [Sammon] go right away” and doing so would “be a big message with the Trump

people.” See also (¶393.) Rupert knew President Trump thought Sammon hated him. (¶390.) Scott

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dutifully followed order, responding: “Sammon was told the inevitable today. . . We agree a ‘big

shake-up’ message is good for us.” (¶393.)

On the same day, November 20, Rupert also decided that Chris Stirewalt needed to be fired.

(¶129,394.) In November 2020, Stirewalt had “publicly supported Fox News Media’s call of

Arizona for President Biden.” (¶126,392.) Like Sammon, Rupert told Scott to fire Stirewalt

because it was a “good message to send” to President Trump and his supporters. (¶394.) And,

again, Scott obeyed. To be clear, Stirewalt got fired for doing the right thing:

Dana Perino: Also between us…I’m on the phone with him now – [s]tirewalt
has been fired. . . . He’s embarrassed and worried about telling the boys [his
sons] but I explained to him – you were right, you didn’t cave, you got fired
after you did the right thing! So he’s coming around a bit.

(¶401.) The “right thing” that Stirewalt did was tell “the American public the truth about the 2020

election.” (¶402.) Telling the “truth about the 2020 election” was not Fox News’ direction post

pivot. “It’s remarkable how weak ratings make journalists do bad things.” (¶395a.)

Third, Fox News promoted talent known for being pro-President Trump and pro-election

fraud. Jeanine Pirro is a prime example of Fox’s behavior before and after the “pivot.” Before the

pivot, Fox executives sought to muzzle Pirro because she wanted to espouse conspiracy claims

about the election. (¶267-271.) On November 5, Pirro wanted to have a guest on to talk about

alleged election misconduct. (¶267.) Her producer, Jerry Andrews, told her he would “ask”

management if she could do the interview but that he “doubt[ed] it’s going to happen” because

“they are not giving much credence to voter fraud allegations as of right now.” (¶267a.) As

predicted, management said “no.” (¶267b.) They did not trust Pirro to be on air because she would

invite guests “to say the election is being stolen.” (¶268.) When Pirro “[went] off on her conspiracy

tangent on a show staff call,” Fox News executives canceled her upcoming show out of fear over

what she might say about the election. (Id. ¶269-270.)

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But Pirro was a golden child after the pivot. On November 9, Scott pushed for Fox News

to promote Pirro as much as possible. She wrote:

On the website – its 345p and I still [don’t] see our opinion folks being
promoted on .com – I’m seeing a ton of FOX nation – need that changed asap
for the next few weeks. Same for FOX News channel – not seeing nearly
enough promotion of primetime talent other than the little bug. And we
should get a Pirro promo in as well. This is something I called around about
first thing this morning. I’m traveling next four days and expect this to be
handled well.

(¶299.) Scott wanted the promos to hit “.com” immediately and to continue “for the next few

weeks.” Her motivation: “we need to let our audience know we are still loyal to them and have

everything they need to live their lives.” (¶298,300.)

Pirro did not disappoint. On November 13, Scott asked Cooper about Pirro’s upcoming

show and indicated, per an instruction from Lachlan, that it “[w]ould be good for her to clear up

the record” about her prior show being cancelled and “send support [to the] audience.” (¶313-315.)

Cooper confirmed that Pirro’s show the next day would feature Sidney Powell. (¶314b.) Scott told

Cooper not to “censor” Pirro. (¶314c.) Indeed, even after Fox News executives received a “Setting

the Record Straight” notice from Dominion debunking Powell’s claims, which Pirro dismissed out

of hand, she was not censored. (¶1003-1004,1342-1343.) Fox News executives privately called

Pirro a “[r]eckless maniac,” but that was vogue after the pivot. (¶1003d,1355.)

Fourth, Fox News embarked on a month-long campaign embracing, co-creating, and

amplifying the wild and improbable accusation that a dirty foreign company, Smartmatic, and its

machines and software were used to switch votes and steal the election from President Trump.

From November 12 to December 12, Fox disseminated more than 100 publications across its

various platforms spreading the message that Smartmatic rigged the 2020 election (the

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“Campaign”). See Appendix 2. 2 The Campaign included fourteen original broadcasts (the

“Original Broadcasts”) on Fox News Channel and Fox Business Network:

1. November 12, Lou Dobbs Tonight

2. November 14, Justice with Judge Jeanine

3. November 15, Sunday Morning Futures with Maria Bartiromo

4. November 16, Lou Dobbs Tonight

5. November 16, Mornings with Maria

6. November 17, Mornings with Maria

7. November 18, Lou Dobbs Tonight

8. November 19, Lou Dobbs Tonight

9. November 19, Hannity

10. November 21, Justice with Judge Jeanine

11. November 21, Watters’ World

12. November 22, Sunday Morning Futures with Maria Bartiromo

13. November 26, Lou Dobbs Tonight

14. December 10, Lou Dobbs Tonight

(Id. ¶497,498.)3 The Original Broadcasts included the Fox Hosts and/or guests discussing how

Smartmatic rigged the 2020 election. Infra at 22-24. Fox then rebroadcasted many of the Original

Broadcasts later that same day or next. (¶405,409,414,418,436,440,447,450,459,463,468,499.) In

total, Fox rebroadcasted the Original Broadcasts over forty-one times during the Campaign. (¶499.)

2
Appendix 2 identifies each of the Publications at issue, including rebroadcasts and republications.
All Appendices are attached to the contemporaneously filed attorney affirmation.
3
The “Original Broadcasts” are the segment or segments from each of the shows discussing
Smartmatic. Videos, transcripts, and screenshots of the Original Broadcasts are included at
Exhibits 1,6,11,24,28,32,37,40,44,47,48,53,59,60.

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Fox also made the Original Broadcasts available through mobile apps and Connected TV devices

like YouTube TV and Hulu Live. (¶505.)

The Campaign, however, was not limited to television and Internet-based television. Fox

posted the Original Broadcasts on its websites, FoxNews.com and FoxBusiness.com. (¶22.) These

postings included videos and transcripts of the Original Broadcasts.

(¶412,419,420,442,458,464,472,502.)4 And the Fox Defendants further republished the Original

Broadcasts on social media accounts, including Twitter, Facebook, Instagram, Parler, and Rumble.

(¶17,25,508.) They also added commentary to the posts to reinforce the message that Smartmatic

machines and software were used to rig the 2020 election. (¶508a.) 5 Through these various means,

the Campaign reached millions of people around the world. (¶501.)

***

Fox’s pivot to election fraud was no coincidence. In November and December 2020, Fox’s

Analytics Department “monitored the rating performances of guest appearances on shows” and

“analyze[d] every minute of a broadcast to evaluate the performance of each minute” in order “[t]o

evaluate audiences coming and going.” (¶496.) On a daily basis, the Department reported to

management on the “rating performance” of hosts, guests and reporters. (¶219.) At the same time

Fox decided to “pivot” its messaging, Fox management leaned more into the analytics to determine

“where the audience is and what folks need to turn it around.” (¶307.) The conclusion reached

based on performance analytics: give the audience more election fraud. (¶316,321,322.)

4
The website posts are included at Exhibits 7,12,13,14,33,45,49,50,54,58.
5
The social media posts included at Exhibits 2-5,8-10,15-23,25-27,29-31,34-36,38-39,41-43,46,
51-52,55-57,61-66.

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In November and December 2020, Ron Mitchell and Kyle Goodwin served as the conduit

of information from the Analytics Department to Fox News executives. (¶220-221.) During that

period, they reported to the executives that viewers wanted to hear “stories about election fraud

and election integrity.” (¶321.) “[A]llegations of election fraud and stories about election integrity

were strong topics of interest” to viewers. (¶321.) And, not just allegations of election fraud, but

“conspiratorial reporting” about election fraud:

Newsmax:

(¶322.) Komissaroff wrote to Wallace that “conspiratorial reporting” was the so-called red meat

that the Fox News audience wanted to hear. (¶311.)

III. The Fox Defendants ran a prolonged Campaign about widespread voting fraud
involving voting machines.

The Fox Defendants have acknowledged, at least internally, that they helped spread false

claims about the 2020 election being stolen. On January 21, 2021, two weeks after the Capitol riot,

Rupert asked Scott:

Is it “unarguable that high profile Fox voices fed the story that the election
was stolen and that January 6th an important chance to have the result
overturn[?]”

(¶327.) The answer: yes. In response to Rupert’s question, Fox News generated a 17-page dossier

of instances when its “high profile” voices embraced and amplified the message that the 2020

election had been stolen from President Trump. (¶328-329.) The dossier included most of the

Original Broadcasts, during which the Fox Hosts and their guests stated and implied that

Smartmatic rigged the election. (Id.)

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A. The main message of Fox’s Campaign was that Smartmatic participated in a

criminal conspiracy to rig the 2020 election.

The main message conveyed by the Campaign was that Smartmatic participated in a

criminal conspiracy to rig the 2020 election (the “Fraud Lie”). The Fox Defendants embraced and

amplified this message by telling their audience that Smartmatic machines and software were

widely used during the 2020 election, including by Dominion, and that Smartmatic’s software was

used to alter votes. In every Publication, the audience was told that Smartmatic was to blame for

President Trump not winning the election—it was Smartmatic’s corrupt software that allowed the

vote count to be manipulated.6

One way the Fox Defendants promoted the Fraud Lie was by falsely portraying Smartmatic

and its software as widely used during the 2020 election (the “Use Lie”). For example:

 Sidney Powell on Justice with Judge Jeanine (November 14): “I am working on the
massive aspect of system wide election fraud, definitely impacting the swing states and
likely going far beyond that. We’re talking about the alteration and changes in
millions of votes, some being dumped that were for President Trump, some being
flipped that were for President Trump. Computers being overwritten to ignore
signatures. All kinds of different means of manipulating the Dominion and Smartmatic
software, that of course we would not expect Dominion or Smartmatic to admit.” (¶411;
Ex.6.)

 Maria Bartiromo on Sunday Morning Futures (November 15): “Look, I want to show
this graphic of the swing states [] that were using Dominion and this software, this
Smartmatic software. I mean, you just said [] all this is Smartmatic, a Delaware entity
registered in Boca Raton, Florida, activities in Caracas, Venezuela, the voting machines
were used, Dominion voting machines were used in Arizona, Georgia, Michigan,
Nevada, Pennsylvania and Wisconsin. And I have a graphic showing the states where
they stopped counting, which I thought was also strange to stop counting in the middle
of Election Night.” (¶417; Ex.11.)

 Rudy Giuliani on Lou Dobbs Tonight (November 18): “Lou, I don’t know if people can
appreciate this but I think when they do, they’re going to be outraged. Our votes in 27
[or] 28 states that [are] counted by Dominion, and calculated and analyzed. They’re

6
Appendix 3 lists each of the false and misleading statements at issue as well as identify which
“Lie” was conveyed by the statement. Appendix 4 summarizes which “Lies” were conveyed
during Publication.

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sent outside the United States. And they’re not sent to Canada. They’re sent to Germany
and Spain. And the company counting, it is not Dominion, it’s Smartmatic, which is
a company that was founded in 2005 in Venezuela for the specific purpose of fixing
elections.” (¶446; Ex.37.)

Without this Lie, viewers would not have believed that their votes were manipulated to steal the

election from President Trump. If Fox had published the truth—that Smartmatic machines and

software were used only in LA County—viewers would know Smartmatic could not have rigged

the election. (¶589-590,598,608-609.) The Fraud Lie would not make sense.

Smartmatic also had to be linked to Dominion for the Fraud Lie to make sense because

Dominion machines were widely used during the 2020 election. For that reason, the Campaign

included various statements that Smartmatic owned Dominion and/or its software was used by

Dominion during the 2020 election (the “Dominion Lie”). For example:

 Rudy Giuliani on Lou Dobbs Tonight (November 12): “Smartmatic is a company that
was formed way back in about 2004, 2003, 2004. …That’s the company that owns
Dominion. Dominion is a Canadian company, but all of its software is Smartmatic
software. So the votes actually go to Barcelona, Spain. (¶404; Ex.1.)

 Sidney Powell on Sunday Morning Futures (November 15): “[T]his is a massive

election fraud. And I’m very concerned it involved not only Dominion and its
Smartmatic software, but that the software essentially was used by other election
machines also. It’s the software that was the problem. Even their own manual explains
how votes can be wiped away. They can put, it’s like drag-and-drop Trump votes to a
separate folder and then delete that folder. It’s absolutely brazen how people bought
this system and why they bought this system.” (¶417; Ex.11.)

 Sidney Powell on Lou Dobbs Tonight (November 19): “Oh they’re definitely linked. I
would call them inextricably intertwined. They have the same history from their
inception. I’m sure they’re trying to distance themselves from each other, but the fact
is that the Dominion machines run the Smartmatic software and or parts of the key code
of it.” (¶451; Ex.40.)

Just like the Use Lie, the Dominion Lie suggested to viewers that their votes had been altered to

affect the election outcome. To suggest Smartmatic’s involvement and support their accusation,

the Fox Defendants aimed to persuade their audience that Smartmatic and its software had

infiltrated the Dominion machines and was responsible for vote changes in those states.

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Finally, the most evident way of messaging the Fraud Lie was through false claims that

Smartmatic’s software altered votes to steal the election (the “Alteration Lie”). For example:

 Sidney Powell on Justice with Judge Jeanine (November 14): “I am working on the
massive aspect of system wide election fraud, definitely impacting swing states and
likely going beyond that. We’re talking about the alteration and changes in millions
of votes, some being dumped that were for President Trump, some being flipped that
were for President Trump.” (¶411; Ex.6.)

 Sidney Powell on Justice with Judge Jeanine (November 14): “It’s either Symantec or
Smartmatic or the two, there – one is a subsidiary of the other. It’s all inexplicably
intertwined. The money creating it came out of Venezuela and Cuba. It was created
for the express[] purpose of being able to alter votes and secure the reelection of
Hugo Chávez. And then Maduro.” (¶411; Ex.6.)

 Rudy Giuliani on Sunday Morning Futures (November 15): “[Smartmatic] was banned
by the United States [] about a decade ago. It’s come back now as a subcontractor to
other companies who sorta hides in the weeds. But Dominion sends everything to
Smartmatic. Can you believe it? Our votes are sent overseas. They are sent to
someplace else, some other country. Why do they leave our country? [] And this
company … has tried and true methods for fixing elections by calling the halt to the
voting when you’re running too far behind. They’ve done that in prior elections.”
(¶417; Ex.11.)

 Maria Bartiromo on Sunday Morning Futures (November 15): “Yeah, I mean, you
heard what Rudy Giuliani said earlier in the program, he and Sidney Powell are
investigating the Smartmatic software and the Dominion voting machines because they
do believe, and they say they have evidence, that there were back doors and the votes
were manipulated to turn Trump votes into Biden votes.” (¶417; Ex.11.)

 Rudy Giuliani on Lou Dobbs Tonight (November 18): “They’ve since taken it down.
But we have it. So we’ve got a very radical far-left company with [] some of their high-
level people supportive of Antifa. Can you believe that? And they’re using a
Venezuelan company as the vote counter, which is known for changing votes and
also known to have [] the most insecure computers in this business. I think you’d only
pick them [] because they [want to] cheat.” (¶446; Ex.37.)

 Lou Dobbs on Lou Dobbs Tonight (November 19): “But Sidney Powell argues that
algorithms in the Smartmatic software were used to change results in the presidential
election.” (¶451; Ex.40.)

 Jeanine Pirro on Justice with Judge Jeanine (November 21): “The President’s lawyers
alleging a company called Dominion, which they say started in Venezuela with Cuban
money and with the assistance of Smartmatic software, a backdoor is capable of
flipping votes.” (¶462; Ex.48.)

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The Alteration Lie lacked subtlety or nuance. The Fox Defendants convinced their audience that

Smartmatic participated in a conspiracy to rig the election by asserting that its software was used

to alter votes.

B. The Fox Defendants published additional lies about Smartmatic to bolster the
criminal accusation that it rigged the election.

The Fox Defendants also falsely claimed that Smartmatic’s machines and software were

designed to manipulate votes, sent votes overseas, and were backed by corrupt countries and

dictators. The Fox Defendants’ audience thus had even more reason to distrust Smartmatic,

suggesting that beyond allegedly influencing the election outcome, Smartmatic’s machines and

software posed an external threat to the nation.

One of these lies related to how Smartmatic designed its machines. Not only were

Smartmatic’s machines and software used to rig the 2020 election, but Smartmatic also

intentionally designed them that way (the “Design Lie”).

The Fox Defendants’ false claim about Smartmatic’s design origins strengthened their

election fraud narrative. Revealing the truth—that Smartmatic’s system was built to specifications

provided by LA County—would have undermined their portrayal of Smartmatic as a nefarious

actor whose technology was engineered to steal votes.

Another way that the Fox Defendants bolstered the main message was by describing how

some of the manipulation was carried out. Specifically, they propagated the false claim that

Smartmatic’s technology transmitted votes overseas for manipulation (the “Overseas Lie”). For

example:

 Lou Dobbs on Lou Dobbs Tonight (November 12): “And now we have to find out
whether they did. And with those servers whether they’re in Canada, whether they’re
in Barcelona or Spain, or Germany…. And by the way, the states, as you well know
now, they have no ability to audit meaningfully the votes that are cast because the
servers are somewhere else and are considered proprietary and they won’t touch them.

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It won’t permit them being touched. So it’s really, so how do you proceed now?”
(¶404; Ex.1.)

 Rudy Giuliani on Sunday Morning Futures, (November 15): But Dominion sends
everything to Smartmatic. Can you believe it? Our votes are sent overseas. They are
sent to someplace else, some other country. Why do they leave our country? [] And this
company … has tried and true methods for fixing elections by calling the halt to the
voting when you’re running too far behind. They’ve done that in prior elections.”
(¶417; Ex.11.)

 Rudy Giuliani on Lou Dobbs Tonight (November 18): “Lou, I don’t know if people can
appreciate this but I think when they do they’re going to be outraged. [There are] votes
in 27 [or] 28 states that [are] counted by Dominion, and calculated and analyzed.
They’re sent outside the United States. And they’re not sent to Canada, they’re sent
to Germany and Spain. And the company counting, it is not Dominion. It’s
Smartmatic, which is a company that was founded in 2005 in Venezuela for the specific
purpose of fixing elections.” (¶446; Ex.37.)

The Overseas Lie served two purposes. One, it provided a convenient explanation for why the

alleged manipulation went undetected—the tampering supposedly occurred beyond U.S. borders.

Two, it exploited xenophobic fears about foreign interference, serving to inflame viewers’ outrage

by suggesting America’s democratic process had been compromised by outside forces.

Finally, going all in on an anti-foreigner message, the Fox Defendants weaponized

xenophobia by falsely claiming Smartmatic maintained close ties to foreign dictators and countries

(the “Dictator Lie”). This fabrication provoked audience outrage by suggesting American

democracy had been subverted by malign foreign influences. For example:

 Rudy Giuliani on Lou Dobbs Tonight (November 12): “Smartmatic is a company that
was formed way back in about 2004, 2003, 2004. You’re gonna be astonished when I
tell you how it was formed. It was formed really by three Venezuelans, who were very
close to … the dictator, Chávez, of Venezuela. And it was formed in order to fix
elections. That’s the, that’s the company that owns Dominion. Dominion is a Canadian
company, but all of its software is Smartmatic software. So the votes actually go to
Barcelona, Spain. So we’re using a foreign company that is owned by Venezuelans
who are close to … Chávez, are now close to Maduro, have a history, they were
founded as a company to fix elections.” (¶404; Ex.1.)

 Sidney Powell on Justice With JJ (November 14): “Lord Malloch-Brown’s name has
been taken off the website for the company that he runs through the U.K. and Canada
- that has a role in this. It’s either Symantec or Smartmatic or the two, there - one is a

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subsidiary of the other. It’s all inexplicably intertwined. The money creating it came
out of Venezuela and Cuba. It was created for the express purpose of being able to
alter votes and secure the reelection of Hugo Chávez. And then Maduro.” (¶411;
Ex.6.)

 Rudy Giuliani on Lou Dobbs Tonight (November 18): “We shouldn’t be using this
company that was founded by Chávez to call votes in America because their specialty
in Venezuela is cheating. Well, apparently the governor signed them up and never
bothered to do any due diligence of any kind.” (¶446; Ex.37.)

The Dictator Lie demonized Smartmatic by falsely claiming it was founded by a notorious dictator

and maintained close ties with another. This fabrication made the Fraud Lie more credible—after

all, a company with dictatorial origins would logically make technology designed to rig elections.

IV. The Fox Defendants knew, throughout the Campaign, that claims of widespread voter
fraud by machines were implausible and widely debunked.

“You keep telling our viewers that millions of votes were changed by the
software. I hope you will prove that very soon. You’ve convinced them that
Trump will win. If you don’t have conclusive evidence of fraud at that scale,
it’s a cruel and reckless thing to keep saying.”

Tucker Carlson, November 17 (¶1130a.)

Tucker Carlson was addressing Sidney Powell on November 17, but he might have well

been talking to his colleagues at Fox. During the Campaign, the Fox Defendants repeatedly

promoted the narrative that Smartmatic criminally conspired to rig the 2020 election by switching

votes from President Trump. This was a deliberate deception. They had seen no evidence to

support the accusation, knew that the accusation had been widely debunked, and knew their own

fact checking had determined the accusations were not true. (¶689-693,706-810,811-985.) Many

of them straight out did not believe what was being said about Smartmatic. (¶716,722-24,72,807.)

The Fox Defendants’ actions were no different than those of Powell—“cruel and reckless.”

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A. No one at Fox really believed widespread election fraud had taken place,
including claims about voting machines.

The aptly named “Brainroom” at Fox News shows the recklessness of the Fox Defendants’

embracing and amplifying the election fraud claims involving Smartmatic. The Brainroom is the

“centralized research department for Fox News.” (¶222.) According to Fox News executives, “[i]f

the Brainroom had concluded that the charges were, in fact, false, they never should have aired.”

(¶225.) But that is precisely what happened.

 On November 12, they compiled a list of the voting machines used in the Swing States
and Smartmatic was not among those listed. (¶970-971.)

 On November 13, they concluded that “[t]here’s no evidence of widespread fraud in

the 2020 election.” (¶974.)

 On November 14, they concluded that many of the election fraud claims, including
those that were published by Fox, were “INORRECT.” (¶975.)

 On November 21, they concluded that “Smartmatic only provided technology and
software to Los Angeles County for the 2020 Presidential election” and “Smartmatic
software is not on Dominion machines.” (Id. ¶981.)

The stark truth is devastating: Fox News’ own “centralized research department” had determined

Smartmatic could not possibly have participated in rigging a national election. This critical finding

was suppressed while the network promoted the exact opposite.

No one involved with the Publications—from top to bottom—believed Smartmatic voting

machines were used to perpetrate widespread fraud during the 2020 election. 7 Fox Corp

Executives. Rupert Murdoch, Chairman, did not believe that the 2020 election had been stolen

from President Trump from the start. (¶706.) He thought claims about a stolen election were

“bullshit and damaging.” (¶707.) He thought President Trump sounded “really crazy” when he

talked about the election being stolen. (¶708.) The election fraud claims were “baseless

7
Appendix 1 provides an organizational chart showing the various individuals within Fox involved
with the Publications.

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conspiracies.” (¶709.) And the claims about voting machines switching votes were

“unsubstantiated.” (¶811.) Rupert believed the 2020 election results were “genuine” and President

Trump got some “bad advice” that made him appear as a “bad loser.” (¶710.)

Lachlan Murdoch, CEO, knew on November 7 that President Trump had lost the election.

(¶712-714.) He agreed with a New York Post article, published that day, which indicated that there

was “no evidence that the election was stolen,” the claims were “baseless,” and pushing the claims

undermined faith “in democracy” and “the nation.” (¶280.) Indeed, even before November 7,

Lachlan believed that President Trump was going to blame everyone for losing the election.

(¶714.) Lachlan never saw any evidence to support election fraud claims involving voting

machines. (¶815.) Nor did he ever see any evidence to support the Fraud Lie, the Alteration Lie,

the Design Lie, or the Dictator Lie. (¶816-819.) And no one at Fox ever told Lachlan that they

believed any of the claims being made about the 2020 election being stolen. (¶820.)

Viet Dinh, Chief Legal & Policy Officer, never believed the claims Fox News published

about Smartmatic. (¶716.) Dinh did not believe the Fraud Lie, Dominion Lie, the Alteration Lie,

the Overseas Lie, the Design Lie, or the Dictator Lie. (¶715,717-720.) He never believed them.

(¶715,717-720.) And, of course, he never saw any evidence to support the Lies. (¶821-825.) Nor

has he ever seen any evidence of widespread voter fraud in the 2020 election, with or without

voting machines being involved. (¶1570.)

Raj Shah, SVP of Brand Protection, never believed the 2020 election had been stolen from

President Trump. (¶722.) He does not believe Smartmatic software was used to rig the election or

switch votes. (¶723.) Nor has he ever seen any evidence to support the Fraud Lie or Alteration Lie.

(¶826.) He considered Powell’s claims about voting machines, including Smartmatic machines,

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being used to rig the election to be “so fucking insane,” “fucking crazy,” “totally nuts,” “so nuts,”

and “just MIND BLOWINGLY NUTS.” (¶1069b.)

Fox Corp Board Members. Paul Ryan, Outside Board Member, never believed that the

“2020 election was stolen.” (¶726.) Nor did he ever believe there was “massive electoral fraud.”

(¶725.) Ryan never thought millions of votes were altered or “algorithms” were used to stop the

vote on election night. (¶727.) The idea that a secret algorithm controlled the votes in the 2020

election was preposterous. (¶728.) Yet Ryan waited over a month to encourage the Murdochs to

do the right thing.

I see this as a key inflection point for Fox, where the right thing and the smart
business thing to do line up nicely. A solid pushback (including editorial) of
[Trump’s] baseless calls for overturning elections, et cetera, will undoubtedly
accrue pushback and possibly a momentary ratings dip, but will clearly
redound to our benefit in terms of credibility.

(¶1217,1576.) Even though he “felt empowered to weigh in on business decisions” and “made

content suggestions to Fox’s senior management,” Ryan did not reach out to the Murdochs to

“push back” against “baseless calls for overrunning the election” until December 6. (¶1574-76.)

Anne Dias, Outside Board Member, never believed the 2020 election had been stolen from

President Trump. (¶731.) She never believed that there was “massive electoral fraud in the 2020

election.” (¶732.) She never saw any credible evidence to suggest there was “massive electoral

fraud” in the 2020 election, involving voting machines or otherwise. (¶827.) And she understood

that the “claims of a fraudulent election were untrue.” (¶733,1581.) Yet she waited over two

months to do the right thing.

It would have been unthinkable just a few days ago that Fox News would be
called upon to explain what represents abuse of power and what is
unacceptable in a democracy. Yet, considering how important Fox News has
been as a megaphone for Donald Trump, directly or indirectly, I believe the
time has come for Fox News, or you Lachlan to take a stance. It is an
existential moment for the nation . . . and for Fox News as a brand. I do not
believe that the company can stay silent on this matter.

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(¶1546-48,1583.) Even though she “serve[d] as the primary oversight” for Fox’s “management

team” and had responsibility for overseeing defamation liability risks, Dias did not reach out to

the Murdochs until January 11 to stop spreading disinformation. (¶1546-48,1579.)

Fox News Media Executives. Suzanne Scott, CEO of Fox News, does not believe any of

the claims that the Fox Hosts, Giuliani, or Powell made about Smartmatic. (¶737-744.) She has

never seen any credible evidence to support any of the claims made about Smartmatic. (¶829.)

From November 7 forward, Scott understood that the alleged election fraud was not going to

“change the outcome of the election.” (¶734.) As of November 14, she had not “seen any evidence

[that] voting machines were involve[d] in changing votes across multiple states.” (¶828.) Scott

agreed with Rupert that the allegations of election fraud voiced by Giuliani and Powell were

“terrible stuff” and “damaging.” (¶736.) She also agreed with Rupert when he told her that it was

hard for President Trump “to cry foul everywhere.” (¶735.)

Jay Wallace, President of Fox News, does not believe Smartmatic rigged the 2020 election

or that voting machines were used to rig the 2020 election. (¶745.) He also knew that Giuliani and

Powell never provided any credible evidence of voting machines being used to rig the 2020

election. (¶830.) As early as November 5 and 6, Wallace knew that two of the Fox Hosts were

spreading “false claims” about election fraud (Bartiromo) and “fraud conspiracy theories”

(Dobbs). (¶1073,1074.) By November 12, he had the CISA Statement. (¶994.) By November 16,

he was informed that Fox News was airing “completely and verifiably wrong information” about

voting machines and that Giuliani and Powell’s claims could be easily determined to be untrue.

(¶1016,1418.) And, on November 21, he knew from the Brainroom that “Smartmatic only provided

technology and software to Los Angeles County” for the 2020 election and its software “is not on

Dominion machines.” (¶983,1424.)

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Irena Briganti, EVP for Corporate Communications, does not believe Smartmatic rigged

the 2020 election. (¶747.) She does not believe the Fraud Lie, the Alteration Lie, the Dominion

Lie, or the Overseas Lie. (¶748-51.) Nor does she believe there was ever any evidence from any

source that voting machines were used to rig the 2020 election. (¶831.) She does not believe

Giuliani and Powell ever “unearthed” credible evidence to support their claims. (¶832.) And she

thought Powell’s claims were “[t]ons of crazy.” (¶1075,1434.) Briganti also received, during the

Campaign, communications from other news organizations asking her to comment on the fact that

Fox News had Giuliani and Powell on its shows to spread “debunked” claims.

(¶1053,1055,1435b.)

Other Fox News Executives. Meade Cooper, EVP of Primetime Programming, never

believed that voting machines or Smartmatic machines and software changed votes during the

2020 election. (¶752.) She never saw any credible evidence to support the claims. (¶833.) She also

knew, by way of example, that one of the Fox Hosts (Pirro) was littering her coverage of

Smartmatic and voting machines with “conspiracy theories and bs.” (¶1087.) Before Pirro’s

November 14 show, Cooper knew she would have to watch Pirro closely. (¶1083.) But Pirro had

a demand for that show, which was granted by Scott: she was not to be “censored” or “overruled

by Cooper.” (¶1083a.) Like others, Cooper received confirmation from the Brainroom that

“Smartmatic only provided technology and software to Los Angeles County” for the 2020 election

and its software “is not on Dominion machines.” (¶981-983.)

David Clark, SVP for Weekend News and Programming, did not believe the 2020 election

had been stolen from President Trump. (¶753.) Starting on November 6, Clark understood that

there were claims of the election being stolen in circulation. (¶1080.) And, on that day, he referred

to claims about election fraud being discussed by Pirro as a “conspiracy tangent” that merited

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taking her off the air as “the wisest course of action.” (¶1080a-c.) He also received, on a regular

basis, accurate information from Dominion, debunking the election fraud claims, which he had

“tattooed on [his] body.” (¶988a.) By November 13, he knew the voting machine accusations were

being denied. (¶996-997.) By November 14, he knew Biden had won the election, did not believe

it was stolen, and had not seen any evidence of voting machine fraud. (¶754-755.)

Tom Lowell, VP and Managing Director of News, never saw any evidence that Smartmatic

voting machines were used to switch or change votes. (¶836.) Nor did he ever see any evidence of

“voting machine fraud on a scale that would have changed the election.” (¶837.) Instead, Lowell

learned the truth from a series of communications from Dominion. (¶998.) From these

communications, starting on November 13, Lowell was informed that claims of “[v]ote

deleting/switching are completely false,” “[a]ssertions of voter fraud conspiracies are 100% false,”

“[a]ll U.S. voting systems must provide assurance that they work accurate and reliably,” and

Dominion “has never been owned by Smartmatic.” (¶998a-b.) Lowell recognized Giuliani’s claims

about election fraud “was a whole lot of wild stuff” but deliberately decided “you don’t have to

buy into his conspiracy theories” to put them on air. (¶1086.)

Fox Business Executives. Lauren Petterson, President of Fox Business Network, does not

believe voting machines rigged the 2020 election. (¶759-760.) Nor has she ever seen any credible

evidence to support those claims. (¶839.) On November 7, Petterson circulated the New York Post

article describing the election fraud claims as “baseless” and damaging. (¶1050.) On November

13, she received a fact sheet from Dominion that debunked the idea of voting machines switching

votes and provided links to supporting material. (¶1002.) On November 16, she responded with

“oh boy” when told the election fraud claims published on Lou Dobbs Tonight were “[m]ore

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fucking out lies.” (¶1018a-b.) When informed on November 24 that the claims were “bullshit” and

publishing them was “reckless,” she offered no defense. (¶1024a-c.)

Gary Schreier, SVP of Programming, never had any basis to believe that Smartmatic or

any voting machines rigged the 2020 election. (¶840.) Nor did he ever have any basis to believe

that Smartmatic was part of a conspiracy to steal the 2020 election or that the 2020 election

represented a “cyber Pearl Harbor.” (¶841-842.) Schreier described the election fraud claims being

pushed by Bartiromo as “crazy wrong shit” and warned that Bartiromo needed to “follow the facts”

instead of promoting false election fraud claims. (¶1090a-b.) He received and/or circulated articles

describing the election fraud claims promoted on Fox as “debunked” (AP email) and “debunked

conspiracy theories” (Mediate article). (¶1089a-b.)

Fox Hosts. Lou Dobbs, host of Lou Dobbs Tonight, knew in “November and December

2020” that Smartmatic operated exclusively in Los Angeles during the 2020 election—a

devastating fact that completely invalidated his show’s central fraud narrative. (¶762.) Dobbs

never possessed or saw any evidence to support the claims made about Smartmatic during his

shows. (¶843-919.) He never saw any evidence to support the Fraud Lie, the Dominion Lie, the

Alteration Lie, the Overseas Lie, or the Dictator Lie. (¶843-915.) Giuliani and Powell never

showed him any evidence to support anything said about Smartmatic on his shows. (¶843,845,913-

915.) By November 22, Dobbs confessed that he “honestly [doesn’t] know what [Powell’s]

thinking or doing” or “why” she was doing it. (¶1096a.) Shortly thereafter, his producer told him

Powell’s lawsuits were “complete bs.” (Id. ¶1097a-b.)

Maria Bartiromo, host of Sunday Morning Futures and Mornings with Maria, never saw

any credible evidence that voting machines, including Smartmatic machines, were used to rig the

2020 election. (¶936.) She saw no evidence to support the Fraud Lie, the Use Lie, the Dominion

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Lie, the Alteration Lie, or the Overseas Lie. (¶937-941.) Before her first show, she recognized that

the only evidence Powell had sent to her was “kooky,” “wacky,” and “inherently unreliable.”

(¶1101a-b.) The “evidence” was an email from a woman who claimed to be “internally

decapitated” and received information “from the wind.” (¶1101.) Bartiromo also knew that

President Trump’s advisors were “excluding [Powell] from meetings” and did not want to hear her

“conspiracy theories.” (¶1102a.)

Bartiromo also knew that fact checking of her first show confirmed that “everything”

Giuliani had said about the election “was a lie” (¶1044a); a Dominion spokesperson described

Giuliani’s claims as “verifiably false” and Powell’s allegations as “tinfoil hat conspiracy staff”

(¶1019); and a Republican operative described Powell as being “full of shit” (¶1041). Bartiromo

was also told on November 15 that Giuliani and Powell were repeating “outrageous lies” and their

claims had been fact-checked by others and refuted. (¶1010.) And, before she even started with

her Publications, Kevin McCarthy told Bartiromo that there was no evidence of massive fraud,

involving voting machines or otherwise. (¶1037-38.)

Jeanine Pirro, host of Justice with Judge Jeanine, does not believe that Smartmatic rigged

the 2020 election or conspired with Dominion to rig the 2020 election. (¶769.) She does not believe

the Fraud Lie, the Dominion Lie, the Alteration Lie, or the Overseas Lie. (¶771-73.) Even now,

years after her publications, Pirro admitted: “I believe that there’s been no showing that

Smartmatic engaged in any problems.” (¶774.) She also admitted to receiving before her shows

information from Dominion debunking the election fraud claims; from CISA confirming the

absence of any widespread vote manipulation; and from the Brainroom confirming that the election

fraud claims were false. (¶1003-1005, 974-980.) And she admitted to doing nothing to verify the

claims made by Giuliani and Powell about Smartmatic. (¶1142, 1150, 1154.) Notwithstanding

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what she and others said on her show, Pirro believes the 2020 election was “fair and free.” (¶775,

974-76.)

Sean Hannity, host of Hannity, “did not believe [claims of widespread election fraud] for

one second.” (¶1383.) He never saw any evidence to support the claims of voting machines being

used to rig the 2020 election. (¶950.) He was not aware of any evidence to support the allegations

made about Smartmatic during his show. (¶958.) And has “not seen one thing that would back up

what [Giuliani] said” about Smartmatic and the 2020 election on his show. (¶959.) Indeed, before

having Giuliani on his show, Hannity considered him to be “going nuts” and “insane.” (¶1107.)

Likewise, before his show, he did not trust Powell. The “vetting” performed by Hannity’s team

“did not match their allegations.” (¶1108.)

Laura Ingraham, host of The Ingraham Angle, understood there “absolutely” was “some

fiction” to the election fraud claims. (¶798.) She never had any basis to believe that Smartmatic

voting machines or software changed votes, inflated votes for President Biden, or deflated votes

for President Trump. (¶963.) Nor did she ever have a basis to believe that voting machines flipped

votes or rigged the 2020 election. (¶964.) She considered Powell “a bit nuts” and a “complete nut.”

(¶1125.) She considered Giuliani to be “such an idiot.” (¶1129.) She did not consider the claims

about Smartmatic to be credible. (¶799-803, 966.) When she posted on her social media a video

of election fraud claims about Smartmatic from Sunday Morning Futures, she admittedly had

never seen any evidence to support the claims. (¶965.) She posted it because she thought it was

“funny.” (Id. ¶804.)

Jesse Watters, host of Watters’ World, knew Smartmatic did not steal the 2020 election

and its machines/software did not change any votes. (¶785.) He never “bought into” the notion that

“software and voting machines” shifted votes. (¶786.) He believed that such a claim was “pretty

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out there.” (¶787.) He conceded the Dominion Lie and Other Lies were “easily verifiable.”

(¶1045.) His team then determined they were “UNVERIFIED.” (¶1046.)

Producers. Producers for Lou Dobbs Tonight (Jeff Field, Alex Hooper, and John Fawcett)

never saw any evidence to support the claims made about Smartmatic on the show. (¶920-935.)

They admitted Giuliani and Powell never provided the show with any evidence to support their

claims. (¶926-932, 1099.) They also received information debunking the election fraud claims

from Dominion, which indicated that there was no evidence of any manipulation by voting

machines. (¶991, 1000.) On November 16, one of the producers (Hooper) received confirmation

from Smartmatic that it was only in LA County. (¶986-87.) By that day, another producer

(Fawcett) considered Powell “very . . . wacky” and suggested she must do “LSD and cocaine and

heroin and shrooms.” (¶1092a-c.) A few days later, Fawcett confirmed for Dobbs that President

Trump was “calling bullshit” on Powell and her claims. (¶1095.) The same was true of Giuliani,

with Fawcett eventually telling Dobbs: “Giuliani is so full of shit” because neither of them

“produced anything tangible or verifiable” to support their claims. (¶1099.)

Producers for Sunday Morning Futures and Mornings with Maria (Abby Grossberg and

Patrick Ignozzi, respectively) never saw any evidence to support the claims made about

Smartmatic on the shows. (¶942-45.) One of the producers (Ignozzi) did not believe Dominion

was using Smartmatic software or that Smartmatic software had been used to change votes. (¶767-

68, 946.) He also knew that Bartiromo had been flagged for spreading misinformation about the

election even before the Publications. (Id. ¶761a-e). The other producer (Grossberg) had “a lot of

doubts” about the election fraud claims before the show. (¶764.) “[A]s far as the machine fraud

went, [she] was pretty sure it didn’t exist.” (¶765.) She started doubting the election fraud narrative

as early as November 7 when Kevin McCarthy told Bartiromo he had not seen any evidence of

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widespread fraud. (¶766.) By November 15, Grossberg did not believe the election fraud narrative

about voting machines. (¶765.)

The producer for Justice with Judge Jeanine (Jerry Andrews) considered Pirro a “reckless

maniac” when it came to the election fraud claims. (¶1003a-d.) Andrews does not believe there is

any credible evidence that Smartmatic “flipped votes” or engaged in a “criminal conspiracy.”

(¶776-78.) He does not believe Dominion used Smartmatic software to manipulate vote counts in

the 2020 election or that Smartmatic was part of any conspiracy to do so. (¶777, 780.) Indeed,

Andrews received information debunking the election fraud claims, including claims about voting

machines, from the Brainroom as well as Dominion, before Pirro’s shows. (¶975-76, 978-85.) He

acknowledged that Pirro’s first show included accusations that the Brainroom had concluded were

“INCORRECT.” (¶975-76.) And, before it aired, he described Pirro’s second show as “rife [with]

conspiracy theories and bs and is yet another example of why this woman should never be on live

television.” (¶979.)

Producers for Hannity (Tiffany Fazio and Ron Mitchell) believed that Giuliani and Powell

were spreading “ridiculous conspiracy theories.” (¶789.) Ron Mitchell described their November

19 press conference as “an instant circus,” “comic book stuff,” and “bananas.” (¶791-92, 1389.)

He thought Giuliani’s claims were “more than fantastical . . . [they were] insane.” (¶1390.) Fazio

agreed. They were “worried about claiming all this election fraud” because the “allegations are so

slim.” (¶793.) On the press conference, she observed that Giuliani “basically gave no evidence.”

(¶961.) In contrast, Fazio received communications from Dominion before the Hannity show

where Giuliani appeared, which specifically debunked the claim he made during the show. (¶991,

1009.) Indeed, not long before the Hannity show at issue, Fazio had stopped the team from booking

Giuliani because the “[c]oncern is he says something bat s[hit] crazy.” (Id. ¶1114-15.)

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B. Fox possessed information debunking and contradicting the accusations from

multiple, credible sources.

The Fox Defendants’ disbelief in their own Publications is easily explained: before and

during the Campaign, not only were the allegations improbable and nonsensical, but the Fox

Defendants also possessed evidence from multiple sources debunking the Lies they were

promoting.

First, Fox was inundated with verified and sourced information from Dominion.

Dominion sent the Fox Defendants over 3,600 emails. (¶988.) So many that one Fox News

executive joked that he had the Dominion “Setting the Record Straight” communications “tattooed

on [his] body.” (¶988a.) These exhaustive communications conclusively refuted the Fraud Lie,

Dominion Lie, and Alteration Lie. From this flood of communications, the Fox Defendants knew

that:

“No credible reports or evidence of any software issues exist.”

***

“State and local election authorities have publicly confirmed the integrity of
the [election] process.”

***

Claims of “[v]ote deleting/switching are completely false.”

***

“Assertions of voter fraud conspiracies are 100% false.”

***

“All U.S. voting systems must provide assurance that they work accurately
and reliably.”

***

Dominion “is not and has never been owned by Smartmatic.”

***

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“There were no Dominion software glitches and ballots were accurately

tabulated.”

***

“Dominion and Smartmatic do not collaborate in any way and have no

affiliate relationships or financial ties.”

(¶990a-h.) The Fox Defendants were presented with these facts on November 12, November 13,

November 14, November 16, November 17, November 18, November 19, November 20,

November 23, November 24, November 25, November 26, November 29, November 30,

December 3, December 5, December 14, December 17 and December 18. (¶991.)

Second, the Fox Defendants received direct refutations from Dominion’s spokesman, Tony

Fratto, who maintained regular contact with Jay Wallace and others at Fox. On November 16,

Fratto explicitly warned Wallace that “[a]n enormous amount of misinformation – actually,

completely and verifiably wrong information – is finding its way on air.” (¶1016.) That same day,

Fratto confirmed Giuliani’s and Powell’s claims could be easily disproven and later characterized

the Lou Dobbs Tonight coverage as “[m]ore fucking out and lies” and a “heaping steaming pile of

lies.” (¶1017.)

Fratto’s direct outreach also targeted Maria Bartiromo. Immediately following her

defamatory Sunday Morning Futures show on November 15, Fratto called her personally to warn

that her guests Sidney Powell and Rudy Giuliani were spreading “outrageous lies.” (¶1010.) He

followed up with written evidence from Smartmatic, confirming it “does not own Dominion

Voting Systems and have never provided Dominion with any technology.” (¶1012a-c.) And

despite providing Bartiromo with contact information for Smartmatic the next day, November 16,

she never used it to verify the claims. (¶1014a-e.)

This outreach by Dominion to Fox News continued. On November 17, Dominion

representative Michael Steel contacted a correspondent to alert them that “Sidney Powell, again,

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falsely linked Dominion voting and Smartmatic conspiracy theories on Lou Dobbs show last night”

and that the claims “are categorically false and have been debunked…Dominion does not

collaborate in any way with Smartmatic. In fact, the companies are fierce competitors. It’s absurd.”

(¶1026.) This communication was then forwarded to Lou Dobbs’ producers. (¶1020a.) Steel’s

efforts extended to Fox leadership. On November 24, he texted Director Paul Ryan offering to

provide accurate information “related to the baseless attacks on [Dominion] specifically.” (¶1025.)

Ryan’s sardonic response revealed his awareness of the absurdity: “Oh, so you’re a part of the

Brian Kemp/Hugo/Chavez/CIA/Dominion conspiracy I see. Looks like the swamp got to you!”

(¶1025d.) Steel replied, “That’s what Lou Dobbs says! Tonight Dobbs went after you, then me,

then had Sidney Powell on to be bonkers for a while. Good times.” (¶1025b.)

Third, Fox was aware of government refutations of widespread election fraud claims. By

November 4, Fox knew CISA Director Christoper Krebs had determined “there were not claims

of verifiable election fraud.” (¶1027.) Fox also knew, on November 4, that the National

Association of State Elections Directors and National Association of Secretaries of State

concluded no evidence existed of election fraud sufficient to change the result. (¶1028.) On

November 12, Fox learned that CISA officially stated: “[t]here is no evidence that any voting

systems deleted or lost votes, changed votes or was in any way compromised.” (¶1029.) Fox later

learned of Krebs’ November 29 statement on 60 Minutes confirming no evidence of election

system compromise, and Attorney General Bill Barr’s December 1 rejection of widespread voter

fraud allegations. (¶1032-1033.)

The fraud allegations about Smartmatic were also systematically debunked by prominent

republicans and conservatives. On November 5, Fox circulated Congressman Adam Kinzinger’s

tweet: “[I]f you have legit concerns about fraud present EVIDENCE and take it to court. STOP

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spreading debunked misinformation.” (¶1035.) House Minority Leader Kevin McCarthy told

Bartiromo directly on November 7 that he had “not seen proof of the ballot fraud.” (¶1037-1038.)

By November 12, Fox circulated Republican strategist Karl Rove’s assessment that “There is no

evidence thus far” of the systematic fraud Trump needed to prove. (¶1353.) Former AUSA Andrew

McCarthy’s National Review piece, describing Giuliani and Powell’s election fraud claims as

“loopy” and “crazy,” was also sent to several hosts and producers. (¶1040.)

Fourth, Fox executives knew major news outlets had refuted the widespread election fraud

claims, as shown by their own Murdoch-controlled media. On November 7—before the Campaign

even began—Rupert and Lachlan personally reviewed and approved of The New York Post article

stating:

The president’s aides have shown no evidence that the election was “stolen.”
. . . It undermines faith in democracy, and faith in the nation to push baseless
conspiracies. Get Rudy off TV.

(¶1049.) Rupert called the article “good,” Lachlan deemed it “great,” and they instructed CEO

Scott to distribute it throughout Fox News—which she did. Id.

The November 7 article was just one of the many instances where Murdoch-controlled

publications directly contradicted Fox broadcasts. On November 5, The New York post wrote:

“President Trump repeated his unfounded claim that political foes were trying to steal the

election.” (¶1048.) On November 11, The Wall Street Journal wrote: “There is no evidence of

[systematic fraud] so far.” (¶1051.) On November 13, The Wall Street Journal wrote: “[T]here

was no evidence that voting systems were tampered with during the presidential election.”

(¶1052.) On November 19, The Wall Street Journal wrote: “No evidence of widespread fraud has

emerged in the presidential election.” (¶1054.) On December 6, The Wall Street Journal wrote:

“There is no evidence of widespread election fraud in Georgia or other states.” (¶1056.)

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Fifth, Fox ignored Smartmatic’s factual corrections on the rare occasions (two) contact

was made. Throughout the Campaign, the Fox Defendants failed to contact Smartmatic for

comment or to offer them airtime to respond to the false accusations. (¶1056.) When a Lou Dobbs

Tonight producer finally reached out on November 16 and 17, Smartmatic immediately provided

clarifying information:

During the 2020 U.S. Presidential Election, we provided technology and

software only to Los Angeles County ballot marking devices. We had no
involvement, direct or indirect, in any other county or state in the United
States.

***

We do not provide any software to tabulate, tally or count votes in any county
or state.

(¶1143-1145.) Smartmatic’s response disproved the core accusations Fox News published.

Smartmatic could not have manipulated a national election when its technology and software was

deployed only in LA County. Smartmatic’s software also could not possibly switch votes since it

was used exclusively in ballot marking devices that did not “tabulate, tally, or count votes.”

Despite Fox’s failure to seek comment, Smartmatic proactively published corrective

information accessible to Fox personnel. (¶1157-1163.) Starting on November 14, Smartmatic

posted a comprehensive “Fact Check” sheet to its website (www.smartmatic.com) that refuted the

Lies published by the Fox Defendants. It stated:

 Smartmatic voting machines were “used exclusively in Los Angeles County [and]
[t]hey were not used in any other state or any other jurisdiction in California or
anywhere else in the US.” (¶1159.)

 “Smartmatic’s software is not licensed or otherwise used by other companies” and none
of the Swing States “used Smartmatic technology.” (¶1159.)

 “Smartmatic’s software was developed by our own engineers to do three things:

accurately process votes, keep them secure and facilitate audits.” (¶1159.)

 “Smartmatic has no ties to governments or political parties.” (¶1159.)

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 “There are no ties between Dominion Voting Systems and Smartmatic – plain and
simple.” (¶1159.)

The truth was readily accessible to Fox personnel with minimal effort. A simple google search

would have sufficed. As Fox News executive David Clark admitted: “it’s pretty easy to … go to a

company’s website,” and “[i]t would be a pretty basic step to go to a company’s website to look

up information about that company.” (¶1161.)

C. The Fox Defendants recognized Giuliani and Powell’s credibility issues before
and during the Campaign.

The Fox Defendants showcased Giuliani and Powell as star guests during their broadcasts,

introducing them with glowing credentials to give them the appearance of credibility and expertise.

However, privately, Fox executives, producers, and hosts harbored serious doubts.

Fox Corp Executives. Fox Corp executives never received any evidence from Giuliani or

Powell supporting their claims about voting machines or Smartmatic. (¶811-27,1570.) Even before

the Campaign began, Murdoch leadership questioned Giuliani’s reliability. On November 7,

Rupert and Lachlan approved a New York Post article explicitly warning:

[T]he President’s aides have shown no evidence that the election was ‘stolen’
. . . It undermines faith in democracy, and faith in the nation to push baseless
conspiracies. Get Rudy Giuliani off TV.

(¶1049.) Both Rupert and Lachlan agreed with the article. In fact, Rupert encouraged the addition

of the last sentence so “Donald [President Trump] might see [it].” (¶1057a.) Rupert wanted the

addition because Giuliani was “ranting” and was a “terrible influence on Donald [President

Trump].” (¶1057b.)

Rupert consistently dismissed both Giuliani and Powell as unreliable. He characterized

Giuliani and Powell’s claims as “crazy” and “bonkers.” (¶1058.) He thought Giuliani’s judgment

was “bad” (¶1059) and Giuliani advising President Trump was “really bad.” (¶1060.) Rupert told

Scott that “Giuliani [should be] taken with a large grain of salt.” (¶373.) And Rupert believed that

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Giuliani and Powell’s press conference was “[s]tupid and damaging.” (¶1061.) Rupert felt the same

way about Powell. He thought she was making wild assertions about election fraud for which she

had no basis. (¶1062.) He called Powell a “would be lawyer.” (¶1063.)

Other Fox Corp executives shared this assessment. In November, Shah informed Lachlan

that the Trump campaign had disavowed Powell because she could not provide any evidence

supporting her claims. (¶1065.) Shah described Giuliani and Powell’s press conference on election

fraud as “fucking crazy.” (¶1067.) She and her claims were “totally nuts,” “so nuts,” and “just

MIND BLOWINGLY NUTS.” (¶1069a-b.) Shah was highly skeptical of Powell and her claims.

(¶722-24.)

Fox News Media Executives. Fox News Media executives received no evidence from

Giuliani and Powell, and privately acknowledged their lack of credibility. CEO Scott admitted

before the election she had “no confidence in anything Rudy [Giuliani] is saying.” (¶1071.) On

November 16, Fratto explicitly warned Scott they were airing “a[n] enormous amount of

misinformation.” (¶1601.) He also told Wallace. (¶1418-1419.) Following the November 19 press

conference, Rupert told Scott: “Terrible stuff damaging everybody, I fear. Probably hurting us too.

Seems chaotic.” (¶1064.) Scott agreed and confirmed that even Fox Hosts Hannity and Pirro

agreed. (¶1064.)

Briganti recognized Powell lacking credibility. On November 8, Briganti described as

“[t]ons of crazy” an interview that Powell gave talking about voting machines being used to rig

the election. (¶1075.) During her deposition, Briganti confirmed that she thought Powell was

“crazy” at that time. (¶1439.) Later, on November 21, Briganti called another Powell interview

“insane.” (¶1075.) Briganti even coordinated with Shah about how to “knock down” Powell—

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because Powell had taken shots at Tucker Carlson—“without having it blow back in our face if we

have Powell on as a guest on other FBN or FNC programs.” (¶1130b.)

Fox News Media executives also received numerous warnings about Giuliani and Powell’s

lack of credibility.

 On November 16, Fratto called Wallace about the appearances of Giuliani and Powell
on Fox News shows, telling him that “Fox could easily verify that Giuliani’s and
Powell’s claims about Dominion were false.” (¶1016a.)

 On November 16, Fratto emailed Wallace about Lou Dobbs Tonight show in which
Powell appeared, stating: “More fucking out and lies.” (¶1419, 1017.)

 On November 17, Wallace and Briganti received an AP fact check stating that “[c]laims
that Dominion Voting Systems and Smartmatic are linked through an ownership
agreement have been debunked, but both Rudy Giuliani and Sidney Powell have
appeared on the Lou Dobbs show … amplifying these false claims.” (¶1422.)

 On November 24, Fratto emailed Wallace about another Lou Dobbs Tonight show in
which Powell appeared, stating: “You guys know this is all bullshit. Everyone knows
it. . . at least Powell will not be on credible TV anymore. This is reckless.” (Id. ¶1024.)

Dominion and the AP merely confirmed what Fox’s executives already knew—there was no

evidence supporting Giuliani and Powell’s claims. (¶988-1025, 811-847.)

Fox News Executives. Fox News executives received no evidence from Giuliani and

Powell supporting their claims. (¶811-842.) And they knew their claims were bunk. On November

17, Briganti forwarded Clark an AP email stating: “Claims that Dominion Voting Systems and

Smartmatic are linked through an ownership agreement have been debunked. But both Rudy

Giuliani and Sidney Powell have appeared on the Lou Dobbs and Maria Bartiromo shows in the

last week amplifying these false claims.” (¶1455a.) Clark acknowledged receipt with “Copy.” On

November 21, Cooper received a note about Pirro’s open going to the Brainroom and being “rife

with conspiracy theories.” (¶1363.) She also got research from the Brainroom confirming. (¶983.)

Fox Business Executives. The Fox Business executives received no evidence supporting

Giuliani and Powell’s claims. (¶839-842.) They also expressed skepticism when talking to each

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other in private. For example, when the White House disavowed Powell on November 22, Schreier

texted Petterson that Powell “sounds downright sane next to Rudy.” (¶1492.) And on November

24, Petterson received a message from Fratto about Powell’s Lou Dobbs Tonight appearances:

“You guys know this is all bullshit. Everyone know it. . . at least Powell won’t be on credible TV

anymore.” (¶1024a-c.)

External media also alerted Fox Business executives to these credibility issues. On

November 17, Schreier received an AP fact-check email stating: “Claims that Dominion Voting

Systems and Smartmatic are linked though an ownership agreement have been debunked, but both

Rudy Giuliani and Sidney Powell have appeared on the Lou Dobbs show and Maria Bartiromo's

show in the last week amplifying those false claims.” (¶1490.) By December 1, the Washington

Post was questioning Briganti about Fox’s decision to host Powell and what fact-checking efforts

they had undertaken—the answer to which was “none” (or none that supported their claims)

(¶1055.)

Lou Dobbs Tonight. Lou Dobbs Tonight staff received no evidence from Giuliani or

Powell for their Smartmatic claims. (¶843-935.) Hooper mocked that Giuliani’s tweet claiming

“evidence of voter fraud nationwide” would “def[initely]” need a “fact check label.” (¶1284c.)

Fawcett told Dobbs that “Giuliani is so full of shit” for failing to produce evidence. (¶1099.) The

team openly ridiculed Powell, with Fawcett describing her as “very…wacky” and suggesting that

she uses “LSD and cocaine and heroin and shrooms.” (¶1092ac.) After President Trump distanced

himself from Powell, Fawcett informed Dobbs that “they [were] calling bullshit” on her and she

“could be losing her mind.” (¶1095.) When Powell finally filed her lawsuit, Fawcett told Dobbs

the claims were “complete bs.” (¶1096a-c.)

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Sunday Morning Futures & Mornings with Maria: Neither Maria Bartiromo nor her

producers received any credible evidence from Giuliani or Powell regarding Smartmatic. (¶936-

46.) Bartiromo also knew Powell had no real support. (¶1037-1038.) On November 8, Powell sent

Bartiromo an email from her “source” for election fraud claims. (¶1101.) Powell’s source said she

got her information from the “wind” and claimed to be “internally decapitated” in 1992. (¶1101.)

Bartiromo herself acknowledged this source was “kooky” and “wacky,” and admitted Powell never

provided “anything of value” as evidence. (¶1101b.)

Bartiromo also received multiple explicit warnings about her sources. On November 15,

Fratto called her to warn that Giuliani and Powell “were repeating outrageous lies” and “there has

been a lot of misinformation [with] a lot of it coming from Rudy [Giuliani].” (¶1013.) On

November 16, Fratto emailed her: “What Rudy is saying is verifiably false, and the same for Sidney

Powell – it’s tinfoil hat conspiracy stuff . . . Rudy is literally making things up as he goes.” (¶1019.)

Justice with Judge Jeanine. On November 13, Andrews received a Brainroom fact check

that there’s no evidence of widespread fraud. (¶974.) In response to its conclusion certain Pirro

claims were incorrect, Andrews warned Pirro that she “should be VERY careful w this” given

contradicting public information. (¶977a.) After Carlson called out Powell for failing to provide

evidence, Andrews cautioned Pirro: “You should be very careful with this stuff and protect

yourself given the ongoing calls for evidence that has not materialized from either of them.”

(¶1361.)

Hannity. The Hannity team privately dismissed Giuliani and Powell. Hannity described

Giuliani as “going nuts” and “insane.” (¶1107, 1367.) He thought Giuliani was “acting like an

insane person.” (¶1368.) Hannity also did not trust Powell and her allegations. (¶788, 1371-73,

1383.) Mitchell characterized their claims as “ridiculous conspiracy theories.” (¶789.) He

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described their press conference as “comic book stuff,” an “instant circus,” and “bananas.” (¶791,

792.) Mitchell confirmed he found neither of them to be credible. (¶90, 1391; see also 789-90,

1386-87.) Fazio agreed. She did not want to book Giuliani over concerns he would say “something

bat s crazy.” (¶1114-1115.)

Ingraham Angle. Laura Ingraham privately dismissed both sources. (¶800-805.) She

called Giuliani “such an idiot.” (¶1129.) She told Carlson that “Sidney Powell is a bit nuts” and

later called Powell a “complete nut.” (¶1125.) Ingraham recognized Powell was making “wild

allegations with very little factual basis.” (¶803.) When Ingraham asked Carlson about Powell’s

promised evidence of “hundreds of thousands of votes,” Carlson bluntly replied: “She lied.”

(¶1127.) An attorney herself, Ingraham observed that “[n]o one w[ould] work with her [Powell]”

and “[d]itto with Rudy.” (¶1128.)

V. The Fox Defendants made a deliberate and calculated decision to do the wrong thing.

“We are very proud of our coverage.”

Rupert Murdoch, January 11 (¶1667.)

Just days after the January 6 riot, Rupert expressed to a reporter that he was “proud” of Fox

News’ post-election coverage. (Id.) This pride was unsurprising. The strategic “pivot”

orchestrated by him, Lachlan, and Scott followed a familiar Fox News playbook that successfully

recaptured the lost audience. The playbook was disinformation.

A. The “pivot” represented Fox News reverting to its tried-and-true playbook of

disinformation laced with xenophobia.

Fox’s executives were fully aware of their programming content and brand. In August and

September 2020, Fox News conducted a “workplace culture” survey, the results of which were

presented to the Board on November 10 as “part of the audit committee’s oversight function.”

(¶1229-1230, 1241.) The findings were later shared with Scott in the middle of the Campaign.

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(¶1240.)

(¶1235, 1237, 1239, 1240.) When faced with an unprecedented audience backlash, the “pivot”

strategy returned Fox News to its core programming content and brand.

First, the Board and executives at Fox Corp and Fox News understood that Fox News had

pushed a pro-President Trump agenda rather than providing “fair and “balanced” coverage before

the 2020 election.

The Campaign represented a pro-President Trump agenda. The main narrative promoted in the

Publications—the Fraud Lie—claimed that President Trump would have won the 2020 election if

not for voting machines rigging the results. Supra at 22-25.

Second, the Board and executives at Fox Corp and Fox News understood that Fox News

had pushed conspiracy theories rather than adhering to “facts” and “truth” before the 2020 election.

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The Campaign championed conspiracy theories. The Fox Defendants pushed a conspiracy theory

suggesting a national election had been rigged by a company whose machines were only used in

LA County. Supra at 21-27.

Third, the Board and executives at Fox Corp and Fox News understood that Fox News had

pushed racist and xenophobic content before the 2020 election.

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The Campaign included xenophobia towards Smartmatic. One of the narratives pushed by the Fox

Defendants in the Publications was that “foreigners” from Venezuela with corrupt connections to

both living and dead dictators had engineered machines to rig elections. Supra at 25-27.

B. Fox decided it was acceptable to spread disinformation about the 2020 election
under the guise of “newsworthiness.”

Everyone at Fox must commit to follow its Standards of Business Conduct, which forms

part of Fox Corp’s compliance program. (¶1172-74, 1176.) These standards “outline[] [Fox’s]

principles regarding fair, ethical, and honest business dealings, full and fair disclosure, and

compliance with applicable laws, and confirm[] the expected standard of behavior governing all

Fox employees and businesses.” (¶1175.) The standards also “confirm [Fox’s] position and

expectations regarding editorial independence and broadcast standards.” (¶1177.) Fox identifies

the “accuracy of information” as one of its “core values.” (¶1178.) As one of “the most influential

and recognized media companies in the world,” Fox recognized its power to shape public opinion:

it is “where [the American people] turn for breaking news” and “the place they trust for

information.” (¶1179, 1171.)

Fox failed to uphold these principles. As part of the “pivot,” Fox Corp and Fox News

executives permitted Fox Hosts and guests to push the Fraud Lie and Other Lies under the

justification of “newsworthiness.” (¶1532-1541.) For example, Rupert confirmed he knew in

November and December 2020 that Fox News hosts featured guests discussing stolen election

claims. (¶1532.) He decided it was “correct” for them do so because it was “newsworthy.”

(¶1534a.) It did not matter to him whether the claims were true.

Counsel: Mr. Murdoch, did you – did you think the president’s allegations

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were worthy of coverage regardless of whether they were ultimately proven

true? Rupert: Yes.

***

Counsel: And even if those efforts were long shots or likely to be

unsuccessful, did you believe those efforts were newsworthy? Rupert: Yes.

(¶1534b.) Lachlan was, likewise, aware in November and December 2020 that “Fox News Media

was covering claims about voting machines being used to steal the 2020 election.” (¶1535.) And

he was OK with it because he felt it was “newsworthy.” (¶1536.)

Fox News executives likewise justified the Campaign as reporting “newsworthy”

allegations. Wallace testified that he “believed [he] had an obligation to let viewers at least know

that the President was making the allegation.” (¶1541.) He explained: “We believed [the

allegations] newsworthy since they were coming from then the current President, we covered them.

We moved on.” (¶1541a.) Scott testified the same. She “believed as a news organization we had a

duty to report the newsworthy allegations being made by the President. . .” (¶1540.) Truth did not

matter. She explained: “I believed Biden won fairly, but I also believed Trump was making these

allegations and we would let that play out.” (¶1540a.)

C. The Fox Hosts promoted election disinformation to advance their own

agendas.

While Fox executives greenlighted the “pivot” and the Campaign to counter audience

backlash and falling ratings, the Fox Hosts amplified disinformation for their own personal

reasons.

Lou Dobbs. Dobbs wanted to help President Trump retake the White House. (¶546-551.)

Having supported Trump since his first presidential run, Dobbs continued his advocacy after the

2020 election. (Id.) On November 7, after the 2020 election had been called for Biden, Dobbs

texted Powell if there was time to overturn the results:

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Powell: Yes if I can get unleashed. Totally blocked from getting to [President
Trump] tonight despite him directing me to be there.

Dobbs: It’s up to us – we few!

(¶549-550.) Dobbs promised to help Powell gain access to President Trump and revealed his true

motivation, telling her that he was “going to do what [he] could to stop President Trump from

being forced out of the White House” and “going to do what [he] can—to help stop what is now a

coup d’etat in final days.” (¶551.) To fulfill his pledge, Dobbs hosted multiple broadcasts to spread

the Fraud and Other Lies.

Jeanine Pirro. Pirro leveraged her platform to secure a presidential pardon for her ex-

husband. (¶566-568.) Pirro maintained a long and “very close” relationship with President Trump

that began when her then-husband, Albert Pirro, did legal work for the Trump organization. (¶535-

540.) This relationship continued throughout his presidency. (¶540-542.) Pirro openly boasted

about her efforts for President Trump, texting RNC Chair Ronna McDaniel:

I work so hard for the party across the country. I’m the Number 1 watched
show on all news cable all weekend. I work so hard for the President and
party.

(¶541.) Pirro’s hard work for the President after the 2020 election, including on air, had a not-so-

secret agenda: getting her ex-husband a pardon.

Pirro’s ex-husband was convicted of conspiracy to commit tax evasion and tax fraud.

(¶566.) During President Trump’s first term, her ex-husband sought a pardon. (Id.) Pirro worked

behind the scenes to help his efforts. (Id.) She contacted Giuliani and others in President Trump’s

circle about the pardon. (Id.) When her ex-husband initially was not included on the pardon list,

Pirro exploded: “DO NOT CALL ME,” “FUCK HIM,” “I DON’T CARE [about] ANYONE

ELSE.” (¶567.) Her outburst stemmed from expectation that President Trump would pardon her

husband. (Id.) Eventually, President Trump did. (¶568.) Pirro had earned it.

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Pirro not only pushed election fraud claims on her show, but also worked behind the scenes

with Powell to bolster her conspiracy theories. (¶561-65.) On November 10, she texted Powell:

“It’s Jeanine P. Got a former CIA chief of station who knows [about] development of dominion.

Keep fighting.” (¶561.) The next day, Pirro sent a document titled “Smartmatic Fact Sheet” to

Powell’s co-counsel, Lin Wood, claiming it “came from my CIA source.” (¶562.) By November

19, Pirro was bragging to friends that she was the secret source behind Giuliani and Powell’s

election fraud claims, revealing her direct involvement in developing and spreading these claims.

(¶563-565.)

[Pirro’s Friend]: Wow wow wow Jeanine. I am listening to Rudy’s press

conference and it is blowing me away. God bless him and Sidney Powell if
they can manage to expose this fraudulent election. Whatever happens Joe
Biden is an illegitimate president. Thinking of you all the time sending you
big hugs.

Pirro: I brought them info on dominion that Sidney talking [about] . . . Cia. .
. . Rudy was brilliant.

(¶565.) Of course, Pirro later admitted that she never saw any evidence supporting the fraud claims

about Smartmatic notwithstanding the “Smartmatic Fact Sheet” she supplied to Wood and Powell.

(¶947.) Supra at 35-36, infra 113.

Pirro also never told her audience that she was Bartiromo’s so-called source. On November

11, the same day she sent the “Smartmatic Fact Sheet” to Wood, Pirro texted Powell and Giuliani:

“Hi guys [sic] came to eric thru me. Sidney call me.” (¶563.) was the individual

Pirro referred to as her “CIA” contact. (¶564.) The next day, Giuliani’s assistant forwarded the

“Smartmatic Fact Sheet” to Abby Grossberg, Bartiromo’s producer, who then passed it to

Bartiromo. (¶557.) Two days later, November 15, Bartiromo made statements on air that matched

up perfectly with this document provided by Pirro.

The key point to understand is that the Smartmatic system has a “backdoor”
that allows it to be…or allows the votes to be “mirrored and monitored”

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allowing an intervening party a real-time understanding of how many votes

will be needed to gain an electoral advantage.

(¶557c; Ex.11.) Bartiromo’s claims about Smartmatic were pure fiction – there was no such

backdoor. Infra at 65-66. On air, she attributed her false statements to a “Senior U.S. Intelligence

Official,” lending them an air of credibility. (¶557d.) However, Bartiromo has now confessed she

is clueless regarding the actual source. (¶557e.)

Bartiromo. Bartiromo used her shows to help “fight” for President Trump and overturn the

election results. On November 17, she texted Powell: “Sidney we must keep you out there. Dobbs

is considered very opinionated. I am news.” (¶558.) She concluded: “I am very worried. Please

please overturn this.” (Id.) She then wrote General Michel Flynn: “I’m so worried. I will get these

people on. I’m not sure I can do any more [than] I am doing. I am fighting hard.” (¶559.) She

continued: “I will keep fighting. Sidney Thursday. Rudy on again.” (¶559.) Bartiromo’s secret

agenda was to use her shows to “fight” for President Trump and overturn the election.

In this mission, Bartiromo was not the naive fool her colleagues thought. (¶1089-1090.)

One of her bosses, Schreier, wrote: “The problem is, she has GOP conspiracy theorists in her ear

and they use her for their messages sometimes. I wish she had that awareness.” (¶1091.) She did,

but she was not being led anywhere she did not want to go. On November 10, she texted Steve

Bannon about wanting to see massive fraud exposed—Bannon responded with “THE PLAN”:

This process is to destroy his [Joe Biden] presidency before it starts; IF it

even starts.

***

You are our fighter . . . We need u.

***

1. We either close on Trumps victory or delegitimize Biden[.] 2. Win both

seats in Georgia[.] 3. Win back house in 2022[.] 4. Elect u to the senate[.] 5.

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IF we don’t close on Trump victory now have [T]rump declare for 2024 the
day after taking back House and your win in Nov[ember] 2022[.]

(¶555.) Bartiromo embraced her role as a “fighter” for the election fraud narrative. After her

conversation with Bannon, she invited Giuliani to appear on her show, encouraging him to spread

disinformation. Her message to him: “OK let me know what’s most important. I want you to

overturn this.” (¶556.) She did her best to help, by co-creating the Lies about Smartmatic.

VI. Fox only ended its Campaign after Smartmatic threatened to take legal action.

Smartmatic was surprised by the Campaign’s duration, given how blatantly false the claims

were. (¶1611.) During the 2020 election, Smartmatic only provided ballot marking devices for LA

County. (¶589-591, 598, 1245.) Its machines were designed to specifications provided by LA

County. (¶596.) Throughout its 20 plus year history, not a single post-election audit had ever

identified vote manipulation involving Smartmatic’s machines. (¶655.) The accusation that

Smartmatic’s machines rigged the 2020 election by switching votes, as they were designed to do,

was so obviously false that the company believed such claims would not gain traction. (¶1610-11.)

Smartmatic was wrong. As a result of the Campaign, Smartmatic soon found itself subject

to attacks online, protests outside its office, and hate mail. (¶1612.) Smartmatic and its employees

started to receive messages like these:

 November 14, 2020: “You lot are in for a rude awakening. Nice try though. Start
adjusting your diets to those prison meals.”

 November 14, 2020: “You fucking frauds and Treasonous, Seditious Bastards need to
start talking because if this Election is Certified based on your active Fraud
Orchestration….you all will be hunted.”

 November 14, 2020: “Time to get affairs in order… Surveillance goes both ways[.] WE
HAVE IT ALL.”

 November 15, 2020: “You are a cheating socialist PIG. God sees what you are doing
and in the end you will have to answer for your sins.”

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 November 16, 2020: “Location acquired…Can you feel us closing in? WE LOVE THE
SMELL OF NAPALM IN THE MORNING!”

 November 21: “The only way to resolve your interference in Western [democracy] is
to shoot dead your company executives.”

(¶1613.) Even family members were not spared. (¶1612b.)The son of one of Smartmatic’s founders

received a threating phone call after the Campaign started. (¶1612c.)

The business impact—although not fully understood at first—proved devastating and

insurmountable. Smartmatic was poised to earn billions after the 2020 election because of its

global footprint, its successful deployment of state-of-the-art technology in LA County, and an

upcoming election buy-cycle. (¶1620.) But instead of the 2020 election marking the start of a

period of expansion and growth for Smartmatic, it marked the beginning of the end. (¶1621.)

Smartmatic’s business stands in ruin today, and it has been forced to lay off over 100 loyal

employees as its value has collapsed. (¶1624, 1626.)

In hopes of stopping the Campaign and mitigating its impact, Smartmatic’s counsel sent

Fox a detailed letter on December 10 highlighting factual inaccuracies, demanding both cessation

and retraction. (¶1616.) Fox neither retracted nor apologized. (¶1628-1635.) Instead, the Fox

Defendants manipulated an election security expert into recording a video confirming what they

had always known was true: Smartmatic operated only in Los Angeles County and played no role

in rigging the 2020 election. (¶1637-47.) The election security expert, Eddie Perez, felt “somewhat

taken advantage of.” (¶1646.)

After receiving Smartmatic’s letter, a Fox booker contacted Perez about being interviewed

but did not share any information about the purpose. (¶1640, 1643.) When he logged on for the

interview, a producer asked Perez questions about Smartmatic that had been drafted by Fox’s legal

department. (¶1641, 1647.) In response, Perez stated:

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 “[H]e ha[d] not seen any evidence that Smartmatic software was used to delete, change,
alter anything related to vote tabulation;”

 It was his “understanding” that Smartmatic’s “software was never used outside of LA
County in 2020;”

 Smartmatic and Dominion “are independent companies, they are not related to each
other;”

 “[He is] not aware of any direct connection between George Soros and Smartmatic;”

 “[He is] not aware of any evidence that Smartmatic is sending U.S. votes to be tabulated
in foreign countries;” and

 “[He is] not aware of any instances in which Smartmatic’s technology was banned in
the U.S.”

(¶1641.) At the direction of Fox’s legal department, Perez’s interview aired on Lou Dobbs Tonight,

Sunday Morning Futures, and Justice with Judge Jeanine. (¶1644.) Perez characterized the

interview as “a bad faith exercise … because so many of these claims and allegations were being

disseminated on Fox News in the absence of any evidence, and they were claims that were not

supported by facts.” (¶1647.)

LEGAL STANDARD8

“Defamation is the making of a false statement that tends to expose the plaintiff to public

contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-

thinking persons, and to deprive him of their friendly intercourse in society.” Smartmatic USA

Corp., v. Fox Corp., No. 151136/2021, 2022 WL 685407, at *17 [Sup Ct New York County, Mar.

08, 2022] (Cohen, D.) (“Smartmatic I”). To prevail on a claim for defamation, a plaintiff must

establish: “(1) a false statement that is (2) published to a third party without privilege or

authorization (3) constituting fault as judged by, at a minimum, a negligence standard and that (4)

causes special harm, unless the statement constitutes defamation per se, in which case damages

8
Internal citations and quotations omitted from, and emphasis added to, all legal citations.

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are presumed.” Id. “Among the categories of statements constituting per se defamation for which

a showing of harm is presumed are those which may arguably impugn plaintiff’s reputation in its

trade, business or profession.” Chiaramonte v. Coyne, 2020 WL 434342, at *8 [Sup Ct, New York

County 2020] (Cohen, D.). “The contested statement[s] also must be ‘of and concerning’ the

plaintiff.” Kaplan v. Central Conference of American Rabbis, 2019 WL 6269047 at *3 [Sup Ct,

New York County 2019] (Cohen, D.). 9

Smartmatic moves for summary judgment on all elements, including a finding by the Court

that the contested statements constitute defamation per se so damages are presumed. A motion for

summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of

action or defense shall be established sufficiently to warrant the court as a matter of law in directing

judgment in favor of any party.” CPLR 3212(b). When a plaintiff moves for summary judgment

on a defamation claim, they must establish, “prima facie, all of the essential elements of the cause

of action.” Poon v. Nisanov, 162 A.D.3d 804, 806 [2d Dept 2018]. Here, each element is supported

by clear and convincing documentary evidence that leaves no room for reasonable dispute.

Once a movant establishes entitlement to summary judgment, the opposing party must

“demonstrate by admissible evidence the existence of a factual issue requiring a trial.” Zuckerman

v. City of New York, 49 NY2d 557, 560 [1980]. This burden cannot be satisfied by “mere

9
The elements for product disparagement are similar. “Product disparagement is an action to
recover for words or conduct which tend to disparage or negatively reflect upon the condition,
value, or quality of a product or property, and … the elements which must be proven are: (1) falsity
of the statement; (2) publication to a third person; (3) malice (express or implied); and (4) special
damages. Thome v. Alexander & Louisa Calder, 709 AD3d 88, [1st Dept 2009]; Ruder & Finn v.
Seaboard Sur. Co., 52 NY2d 663, 670 [1983] (defamation and disparagement in the commercial
context are allied in that the gravamen of both are falsehoods published to third parties);
Langenbacher Co., Inc. v. Tolksdorf, 199 AD2d 64, 65 [1st Dept 1993] (injury presumed as
disparagement impugned the basic integrity and competence of business).

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conclusions, expressions of hope or unsubstantiated allegations or assertions.” Id. at 562. New

York courts have not hesitated to grant summary judgment to defamation plaintiffs when the

evidence warrants it. See, e.g., Kasavana v. Vela, 172 A.D.3d 1042, 1048 [2d Dept 2019] (directing

summary judgment for plaintiff “on the issue of liability” on her defamation claim because

“defendant failed to raise a triable issue of fact”). The Fox Defendants cannot avoid summary

judgment through hypothetical or speculative assertions. They must either produce actual evidence

or accept responsibility for spreading disinformation about Smartmatic rigging the 2020 election.

ARGUMENT

No triable fact issue exists as to any element of Smartmatic’s defamation claims. Any

attempt by the Fox Defendants to dispute summary judgment would not only fall short but would

constitute a quintessential example of frivolous opposition. Under CPLR 130-1.1, conduct is

frivolous if “(1) it is completely without merit in law and cannot be supported by a reasonable

argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily

to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3)

it asserts material factual statements that are false.” If they are to comply with CPLR 130-1.1, the

Fox Defendants have no legitimate pathway to oppose summary judgment because the facts and

law are one-sided in Smartmatic’s favor.

I. Smartmatic is entitled to summary judgment on falsity.

Smartmatic satisfies its burden of proving falsity by showing that the statements published

by the Fox Defendants are “substantially false.” Franklin v. Daily Holdings, Inc., 135 AD3d 87,

94 [1st Dept 2015]. “Courts typically compare the complained of language with the alleged truth

to determine whether the truth would have a different effect on the mind of the average reader.”

Id. at 94. Here, the undisputed evidence establishes that the TRUTH would have had a far different

effect on the mind of the average reader, listener, and watcher than the Lies published by the Fox

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Defendants. The Fox Defendants cannot, consistent with CPLR 130-1.1, identify any factual or

legal grounds to oppose summary judgment on falsity.

A. Undisputed evidence establishes the truth about Smartmatic.

The undisputed evidence establishes seven truths that undermine each Lie spread by the

Fox Defendants about Smartmatic: (1) Smartmatic only provided machines and software to LA

County during the 2020 election, (2) Smartmatic only manufactured ballot marking devices

(“BMDs”) for LA County during the 2020 election, (3) Smartmatic had no corporate relationship

with Dominion, (4) Smartmatic did not commit election fraud by altering votes or otherwise

rigging the 2020 election, (5) Smartmatic was not started by foreign dictators, (6) Smartmatic did

not design its machines and software to rig elections, and (7) voting machines did not alter votes

or otherwise rig the 2020 election.

Truth No. 1: Smartmatic only provided machines and software for LA County.

Smartmatic played no role in the 2020 election outside of LA County. (¶589.) Smartmatic did not

provide election technology or services to any other state or county in the U.S. (¶590.) Smartmatic

manufactured BMDs and provided support services for LA County during the 2020 election.

(¶591-593.) It had no other role. (¶589-592.) Its machines and software were not used in any state

or county other than LA County. (¶608.) And no other voting machines company, including

Dominion, used Smartmatic’s machines or software during the 2020 election. (Id. ¶609, 624.)

Truth No. 2: Smartmatic only manufactured BMDs for LA County. Smartmatic only

manufactured BMDs for LA County. (¶591-592.) The BMDs consisted of a touchscreen machine

and secure box for the depositing of paper ballots. (¶594.) The process was straight-forward: (1)

voters selected their candidate(s), (2) the BMD machine printed a ballot to record the selections,

(3) voters had the opportunity to review the paper ballot and approve their selections, and (4) the

paper ballot was then deposited into the secure box attached to the machine. (¶595.) The BMDs

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were designed and manufactured based on specifications provided by LA County. (¶596.) The

BMDs for LA County had never been manufactured or deployed before by Smartmatic or anyone

else. (¶597.)

The BMDs had a limited, but important, function. These BMDs did not count or tabulate

votes. (¶598.) Vote counting and tabulation was done by LA County personnel, using a vote tally

system from another company. (¶599.) The BMDs have never had any functionality to switch,

alter, or change votes cast by voters. (¶602.) The BMDs did not maintain an electronic record of

the votes. (¶601.) They only generated a paper ballot. (¶601.) The BMDs were not connected to

the Internet. The Ethernet port was sealed shut before being deployed for use. (¶603.) The BMDs

did not have an algorithm to monitor, count, or switch votes. Nor would such an algorithm make

any sense given the limited purpose of BMDs. (¶604.) The manual for the BMDs does not describe

how an operator can monitor, count, or switch votes. (¶605.) And the BMDs did not and cannot

send votes overseas. (¶606.) The votes were recorded on the paper ballots in the secured box. (Id.

¶607.)

Truth No. 3: Smartmatic had no corporate relationship with Dominion. Smartmatic has

never owned Dominion in full or in part. (¶610.) Dominion has never owned Smartmatic in full or

in part. (¶611.) Smartmatic has never been a subsidiary of Dominion. (¶612.) Dominion has never

been a subsidiary of Smartmatic. (¶613.) Smartmatic and Dominion have never shared offices or

corporate officers. (¶614.) Smartmatic and Dominion were competitors in 2020—as they were

before 2020. (¶615.) They did not have a corporate relationship or even a cooperative business

relationship. (Id. ¶616.)

Truth No. 4: Smartmatic did not alter votes or otherwise rig the 2020 election.

Smartmatic’s BMDs did not alter, switch or manipulate any votes during the 2020 election. (¶620-

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621.) Nor could they have done so based on their design and function. (¶622.) As for rigging the

2020 election, nationally or even in just California, that was mathematically impossible. (¶623.)

On November 3, approximately 913,000 people used Smartmatic’s BMDs to record their vote.

(¶623a.) That represented 5% of the people who voted in the California race, a state that Joe Biden

won by over 5 million votes. (¶623b.) Smartmatic could have theoretically manipulated every vote

it touched, which it obviously did not do, and it would still not have made a difference in the

outcome of the election in California or the nation.

This self-evident truth—that neither Smartmatic nor its BMDs switched votes or rigged a

national election—was confirmed before and after the 2020 election. Before the election,

California conducted certification tests on the BMDs. (¶629.) California’s certification testing did

not identify any function that would allow for the alteration, switching, or manipulation of votes.

(¶629b.) California would not have certified the BMDs if they had such functionality. (¶629c.)

Moreover, the paper ballots generated from the BMDs protect against election rigging because a

paper ballot cannot be electronically manipulated. (¶630.)

After the 2020 election, Smartmatic did not receive any notice or comments by anyone

with LA County that a voter claimed or commented that his or her vote had been switched, altered,

or changed by a BMD. (¶632.) Post-election audits in California and in LA County found no

instances of election fraud, vote switching, alteration, or manipulation. (¶633.) The post-election

audit confirmed the accuracy and integrity of the voting in California. (¶634.) Notably, no state or

federal investigation has concluded that the 2020 election was rigged or that votes were

manipulated by voting machines, including Smartmatic’s BMDs used in LA County. Infra at 66-

69 (Truth No. 7).

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Truth No. 5: Smartmatic was not started by foreign dictators. Smartmatic was founded in

2000 in Boca Raton, Florida and incorporated in Delaware. (¶569.) Antonio Mugica and Roger

Pinate, Jr. formed Smartmatic. (¶570.) Ownership of Smartmatic was split among the founders and

a small group of angel investors. The Mugica family owned 71.5%, the Pinate family owned 5%,

and angel investors owned 20.5%. (¶571.) At no point have Hugo Chavez, Nicolas Maduro, or any

member of their family owned or been angel investors of the company. (¶572.) The company

originally founded in 2020 is now known as Smartmatic USA. (Id. ¶569.)

In 2020 and today, Smartmatic Int’l is a wholly owned subsidiary of Smartmatic

International Holding B.V. (“Smartmatic Int’l”). (¶573.) Smartmatic Int’l was acquired by Mr.

Mugica and Mr. Pinate in April 2005. (¶575.) It is headquartered and incorporated in The

Netherlands. (¶574.) Smartmatic Int’l has more than 20 subsidiaries around the world that operate

under the brand name Smartmatic, including subsidiaries in North America, South America,

Europe, Asia, and Africa. (¶576.) Smartmatic USA is one of the subsidiaries that operate under the

Smartmatic brand. (Id. ¶577.)

In 2020 and today, Smartmatic Int’l is a wholly owned subsidiary of SGO Corporation

(“SGO”). (¶579.) SGO was formed by Mugica and Pinate in December 2010. (¶580.) It is

headquartered and incorporated in the United Kingdom. (¶578.) As of 2020, ownership of SGO

was divided among the Mugica family (66.3%), the Pinate family (17.74%), and angel

investors/employees (15.96%). (¶583.) At no point have Chavez, Maduro, or their families ever

owned any portion of SGO. (¶584.) SGO operates under the Smartmatic brand. (¶586.)

Truth No. 6: Smartmatic never designed a machine to switch votes or rig elections. Prior

to the 2020 election, Smartmatic processed more than 5 billion votes in more than 25 countries on

five continents, all without any election security breach. (¶639.) While Smartmatic’s technology

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varies by jurisdiction and election, all of its voting machines included an auditable paper record of

the vote cast by the voter or employs other processes that can be used for auditing results. (¶640.)

Every post-election audit conducted of the votes processed using Smartmatic machines has

confirmed the accuracy of the vote count. (¶641.) No audit anywhere, anytime has found an

instance of Smartmatic equipment switching or inflating votes. (¶642.)

Smartmatic has never designed its machines to switch votes or rig elections. (¶643.) Nor

has Smartmatic ever programmed software to switch votes or rig elections, or with a backdoor to

do so. (¶644.) To the contrary, all Smartmatic technology used for recording or processing votes

creates or keeps a paper record (e.g., a paper ballot) that memorializes the voter’s vote, or employs

other processes that can be used for auditing results. (¶640.) That has been a hallmark of

Smartmatic from its first election to today. (¶645.) The paper record serves as a critical component

of vote integrity because it allows for post-election audits. (¶646.)

The integrity of Smartmatic’s machines has also been confirmed by election officials and

independent third parties around the world. For example, in 2005, The Carter Center and the

European Union identified Smartmatic’s election technology as one of the most secure, reliable,

and auditable election technologies in the world. (¶650.) In 2012, former President Jimmy Carter

called Smartmatic’s solution “the best voting system in the world.” (¶651.) Prior to the 2020

election, Smartmatic machines had undergone pre-election certification testing with more than 50

elections worldwide. (¶653.) None of the pre-election certification tests determined that

Smartmatic’s machines had a feature or design to switch votes, an algorithm to switch votes, a

backdoor to switch votes, or a manual with instructions on how to switch votes. (¶648.)

Truth No. 7: Voting machines did not alter votes or otherwise rig the 2020 election. Four

years after the 2020 election, the facts remain unambiguous: not a single credible piece of evidence

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has emerged showing widespread voting machine fraud. First, federal investigations and agencies

have repeatedly affirmed the absence of widespread fraud involving voting machines. For

example, in December 2022, the Select Committee to Investigate the January 6th Attack on the

United States completed an 18-month investigation, which included nine public hearings and

testimony from seventy witnesses. (¶661.) The Select Committee concluded: “Not a single

witness—nor any combination of witnesses—provided the Select Committee with evidence

demonstrating that fraud occurred on a scale even remotely close to changing the outcome in any

State.” (¶661.)

The Select Committee, of course, was just one of the many investigations undertaken

regarding the 2020 election—all with the same conclusion. Multiple federal agencies evaluated

the claims of widespread fraud, including through voting machines, and universally rejected the

claims.

 Elections Infrastructure Government Coordinating Counsel and Coordinating

Executive Committees: On November 12, in a Joint Statement from Elections
Infrastructure Government Coordinating Council and Election Infrastructure Sector
Coordinating Executive Committees, those agencies announced that: “The November
3rd election was the most secure in American history … There is no evidence that any
voting system deleted or lost votes, changed votes or was in any way compromised.”
(¶662a.)

 U.S. Election Assistance Commission: On November 13, Benjamin Hovland,

Commissioner for the U.S. Election Assistance Commission, announced that there was
“no widespread fraud or malfunction that would change the result of the election.”
(¶662b.)

 Cybersecurity and Infrastructure Security Agency (“CISA”): On November 29, Chris

Krebs, Director of CISA, stated that “there was no indication or evidence of hacking or
compromise of election systems on, before, or after November 3.” (¶662c.)

 Department of Justice: On December 1, William Barr, U.S. Attorney General,

announced that the Department of Justice had investigated claims of election fraud and
concluded that “to date, we have not seen fraud on a scale that could have effected a
different outcome in the election.” Attorney General Barr continued: “There’s been one
assertion that would be systematic fraud and that would be the claim that machines
were programmed essentially to skew the election results. And the DHS and DOJ have

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looked into that, and so far, we haven’t seen anything to substantiate that.” (¶662d.)
Barr later testified before the January 6th Committee that he found no evidence of fraud
that would have affect the outcome of the election and saw zero basis for the voting
machine allegations. (¶662d.)

 National Intelligence Council: On March 10, the National Intelligence Council released
a declassified report on its investigation of the 2020 election. The National Intelligence
Council concluded: “We have no indications that any foreign actor attempted to
interfere in the 2020 US elections by altering any technical aspect of the voting process,
including voter registration, ballot casting, vote tabulation, or reporting results.”
(¶662e.)

No federal agency has identified (1) widespread fraud impacting the 2020 election, (2) instances

of voting machines being used to switch or alter votes during the 2020 election, or (3)

vulnerabilities in voting machines being used to switch or alter votes during the 2020 election.

Second, post-election audits and recounts confirmed the absence of widespread fraud

involving voting machines. In 2020, approximately 90% of voters voted on paper ballots and most

states (44 of 50) performed post-election tabulation audits. (¶664.) Widespread fraud would have

been detected in the post-election tabulation audits. (¶665.) If a machine were to “flip” or “switch”

a vote during the tabulation process, the manipulation would be evident by examining the actual

paper ballot. (¶666.) None of the post-election tabulation audits identified widespread fraud

involving voting machines flipping or switching votes. (Id. ¶667.)

Third, the 2020 election’s voting machines underwent exhaustive certification testing.

Every voting machine met or exceeded required federal or state certification standards that

included: line-by-line examination of millions of software code lines, comprehensive security

vulnerability assessments, multiple layers of technical evaluation by independent experts, and

public documentation of testing methodology and results. (¶671.) This certification process, which

is rigorous, transparent and required by law—created an extreme barrier to potential manipulation.

(¶672.) The mathematical probability of the voting machines harboring undetected vulnerabilities,

across different states, is essentially zero. (¶674.)

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Fourth, election security experts debunked the claim of widespread voter fraud as they

were being made. (¶662, 663.) For example, on November 16, fifty-nine election security and

computer science experts issued a joint announcement, concluding: “We are aware of alarming

assertions being made that the 2020 election was ‘rigged’ by exploiting technical vulnerabilities.

However, in every case of which we are aware, these claims either have been unsubstantiated or

are technically incoherent. To our collective knowledge, no credible evidence has been put forth

that supports a conclusion that the 2020 election outcome in any state has been altered through

technical compromise.” (¶663.)

Fifth, the election security experts from both sides of this litigation deliver a devastating

blow to any voting machine fraud claims. This rare consensus between opposing experts creates a

barrier for the Fox Defendants. Smartmatic’s expert, Dr. Alan Sherman concluded:

On a national level, any outcome-determinative fraud would likewise have

been detected with overwhelming probability with the many checks and
observations in place to monitor and safeguard the [2020 election]. . .
[D]espite all of these audits and reviews, only a small number of isolated
cases of possible ballot fraud have been reported in the U.S. . . Had there
been widespread fraud perpetrated by the voting machines as published by
Fox, that fraud would likewise have been quickly detected and reported. It
was not.

(¶676.) Even more, the Fox Defendants’ own expert, Robert Dezmelyk, is unable to contradict

these findings. He failed to present a single instance of outcome-determinative irregularities or

machine-altered votes. (¶677.)

B. The Lies published by the Fox Defendants were far different than the
undisputed truths about Smartmatic.

The Lies about Smartmatic published by the Fox Defendants stand in irreconcilable

contradiction to the undisputed facts about Smartmatic. Appendix 3 systematically demonstrates

that each statement fails multiple tests of truthfulness—though failing even one test would be

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legally sufficient to establish substantial falsity. 10 And every Lie about Smartmatic was

deliberately woven into the overarching narrative that Smartmatic participated in a conspiracy to

rig the 2020 election—the Fraud Lie. Each Lie, whether about Smartmatic’s software, history,

connections, or capabilities, served this singular narrative. And each Lie collapses when measured

against the TRUTH.

Fraud Lie. The overall message conveyed by the Fox Defendants was the Fraud Lie—

namely, Smartmatic participated in a criminal conspiracy to rig the 2020 election. The Fraud Lie

was substantially false because (1) Smartmatic only provided machines and software to LA County

during the 2020 election, (2) Smartmatic manufactured BMDs for LA County only during the 2020

election, (3) Smartmatic did not alter votes or otherwise rig the 2020 election, (4) Smartmatic did

not design its machines and software to rig elections, and (5) voting machines did not alter votes

or otherwise rig the 2020 election. Smartmatic’s actual 2020 election role—providing BMDs for

LA County—made election rigging impossible. Smartmatic could not have manipulated the

election results. One cannot rig votes one never touches.

The Fox Defendants cannot, consistent with CPLR 130-1.1, contend there is a disputed

issue of fact regarding whether Smartmatic participated in a criminal conspiracy to rig the 2020

election. The Fox Defendants have not produced any evidence to validate or support the Fraud Lie.

They repeatedly recognized in contemporaneous communications that there was no evidence of

widespread voter fraud. Infra at 112-16, 130-32. They admitted during depositions that they were

unaware of any evidence of widespread voter fraud. Id. And numerous executives of Fox Corp and

10
Appendix 3 shows that every statement at issue is false and misleading based on one or more
of the seven truths set forth above.

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Fox News admitted they believed Biden was legitimately elected President and never believed the

claims of widespread voter fraud. Id.

Use Lie. The Fox Defendants strategically deployed the Use Lie, which told its audience

that Smartmatic’s machines and software were widely deployed during the 2020 election, to

reinforce the Fraud Lie. Without the Use Lie, the election fraud allegations would have

immediately collapsed under the most basic scrutiny—as Smartmatic’s limited role would make

manipulation impossible. The Use Lie was substantially false because Smartmatic only provided

machines and software to LA County during the 2020 election. Supra at 61 (Truth No. 1). Its

machines and software were not used anywhere else. Id. This fact was readily ascertainable by

visiting websites maintained by States and counties across the country, which identified the voting

technology used during the 2020 election. (¶1166); by visiting websites like Verified Voter which

listed—in one easy location—the technology used in each State and county (¶1167); or by visiting

the websites of various election companies that actually provided machines to States and counties

across the country (¶1168).

Dominion Lie. The Fox Defendants also strategically deployed the Dominion Lie to

reinforce the Fraud Lie. The Dominion Lie included telling people that the two companies were

related and Dominion’s machines used Smartmatic’s software to switch votes. The Dominion Lie

was substantially false because (1) Smartmatic only provided machines and software to LA County

during the 2020 election, (2) Smartmatic only manufactured BMDs for LA County during the 2020

election, and (3) Smartmatic had no corporate relationship with Dominion. The two companies

are competitors, not one in the same or otherwise aligned. (¶610-617.) Dominion did not use

Smartmatic’s machines or software during the 2020 election. (¶609.)

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Alteration Lie. The Alteration Lie—that Smartmatic’s software switched and manipulated

votes—was another key component to the Fraud Lie. The Alteration Lie is how Smartmatic

executed the alleged criminal conspiracy. The Alteration Lie was substantially false because (1)

Smartmatic only manufactured BMDs for LA County during the 2020 election, (2) Smartmatic

did not alter votes or otherwise rig the 2020 election, (3) Smartmatic did not design its machines

and software to rig elections, and (4) voting machines did not alter votes or otherwise rig the 2020

election. Smartmatic machines could not have switched or altered votes as the Fox Defendants

claimed because BMDs merely generated a paper ballot of the voter’s vote. (¶595, 601.) The

BMDs lacked the technical capability to alter vote totals. (¶595, 601-604.)

As with many of the Lies, the Fox Defendants have admitted that the Alteration Lie was

not true. Infra at 112-16, 130-32. The Fox Defendants admitted they had no evidence that

Smartmatic’s machines or software switched or altered votes during the 2020 election. (Id. ¶689-

693.) Many never believed that Smartmatic’s machines or software switched or altered votes

during the 2020 election. (Id. ¶689-693.). These admissions are an implicit acknowledgement as

to falsity. Four-plus years into this litigation and the Fox Defendants cannot (of course) identify

even a single vote manipulated by Smartmatic.

Overseas Lie. The Fox Defendants deployed the Overseas Lie—claiming that Smartmatic

sent votes overseas for counting and manipulation—to both bolster the Fraud Lie and exploit

xenophobic fears. The Overseas Lie was substantially false because (1) Smartmatic only

manufactured BMDs for LA County during the 2020 election, (2) Smartmatic did not alter votes

or otherwise rig the 2020 election, (3) Smartmatic did not design its machines and software to rig

elections, and (4) voting machines did not alter votes or otherwise rig the 2020 election. This Lie

was not merely false but technologically impossible. Smartmatic’s BMDs did not count or tabulate

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votes and were not connected to the Internet. (¶603.) The BMDs could not, even theoretically,

send votes overseas.

Design Lie. The Fox Defendants deployed the Design Lie—that Smartmatic designed its

machines to rig elections—to, once again, bolster the Fraud Lie and exploit xenophobic fears. In

the alternative universe created by the Fox Defendants, Smartmatic machines and software were

just doing what they were designed to do when they flipped votes. The Design Lie was

substantially false because (1) Smartmatic manufactured BMDs for LA County per its

specifications, (2) Smartmatic did not alter votes or otherwise rig the 2020 election, (3) voting

machines did not alter votes or otherwise rig the 2020 election, and (4) Smartmatic did not design

its machines and software to rig elections. Given that the only technology that Smartmatic provided

during the 2020 election was designed per specifications provided by LA County, and designed to

generate an auditable paper ballot, the Design Lie is facially absurd.

The Design Lie is further undermined by the fact that Smartmatic has never: designed

machines or software to switch votes or rig elections; created manuals discussing vote

manipulation techniques; inserted algorithms into its software allowing votes to be switched or

monitored; or produced technology that permits election rigging. (¶639-648.) Pre-certification

testing of Smartmatic’s technology worldwide has never identified design features allowing vote

manipulation. (¶653-655.) And two decades of post-election audits have confirmed the accuracy

and integrity of votes cast using Smartmatic’s technology. (¶653-655.) Thus, even though the

Campaign focused on the Smartmatic technology used during the 2020 election, i.e. BMDs, the

Design Lie does not withstand scrutiny even when expanded to the technology that Smartmatic

has provide for elections around the world.

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For the Fox Defendants to now pretend a factual dispute exists over the Design Lie would

be hypocritical and reckless. Fox witnesses have already admitted: they possessed no evidence

supporting the Design Lie and many never believed the Lie. Infra at 112-116, 130-32. During

discovery, the Fox Defendants produced zero evidence to support the Design Lie and did not

identify one vote manipulated by Smartmatic anywhere in any election. To pretend a factual

dispute exists over the Design Lie means the Fox Defendants will need to tell this Court that a

reasonable jury could decide that an election conducted and certified in another country was rigged

by Smartmatic’s machines. It is hard to imagine that anyone, even the Fox Defendants, would be

so irresponsible and reckless as to make that suggestion . . . again.

Dictator Lie. The Fox Defendants deployed the Dictator Lie—namely, that Smartmatic

was founded by Hugo Chavez, the former dictator of Venezuela, and Smartmatic’s founders had

close relationships with Chavez—to bolster the Fraud Lie and further exploit xenophobic fears.

The Dictator Lie was substantially false because Smartmatic was not started by foreign dictators.

Smartmatic was started in Florida by a group of entrepreneurs. Supra at 65 (Truth No. 5). It evolved

into a multi-national corporation headquartered in The Netherlands and United Kingdom. Id.

(¶569-580.) Chavez being named as the founder of Smartmatic was pure fiction.

Moreover, at no point was any foreign dictator (Chavez or otherwise) involved in founding

or funding Smartmatic. (¶572.) The actual founders of Smartmatic—Antonio Mugica and Roger

Piñate—had no personal or professional relationship with Chavez. (¶656.) Far from being aligned

with the Venezuela regime, Smartmatic’s business relationship with Venezuela ended in 2017

when the company was expelled from the country after exposing government lies about voter

turnout. (¶659-660.) Ironically, Smartmatic was punished by the Venezuelan government for its

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commitment to election integrity—the exact opposite of Fox’s portrayal. (¶660.) The company

lost assets in Venezuela specifically because it refused to remain silent about the regime. (¶660.)

C. None of the Publications involve non-actionable, pure opinions.

Statements that convey facts or “mixed opinions” are actionable whereas “pure opinion[s]”

are not in defamation actions. Davis v. Boeheim, 24 NY3d 262, 269 [2014]. To determine whether

a statement contains an actionable fact, courts consider: “(1) whether the specific language in issue

has a precise meaning which is readily understood; (2) whether the statements are capable of being

proven true or false; and (3) whether either the full context of the communication in which the

statement appears or the broader social context and surrounding circumstances are such as to signal

to readers or listeners that what is being read or heard is likely to be opinion, not fact.” Gross v.

New York Times Co., 82 NY2d 146, 153 [1993]. Multiple courts, including this Court and the First

Department, have already concluded that the Publications conveyed actionable facts and/or mixed

opinions. That conclusion remains valid today because the language and context being evaluated

have not changed.

1. The Publications convey actionable facts about Smartmatic.

The Fox Defendants’ Lies satisfy all three factors to be actionable under New York law.

See Appendix 5.11 First, the language used throughout the Publications had a clear and readily

understood meaning that leaves no room for ambiguity. The Publications straightforwardly

accused Smartmatic of participating in a criminal conspiracy to rig the 2020 election—the central

Fraud Lie. This overarching false narrative was methodically constructed through supporting

falsehoods: the Use Lie, Dominion Lie, Alteration Lie, Overseas Lie, Design Lie, and Dictator Lie.

Far from being subtle, vague, or open to interpretation, these accusations were presented as explicit

11
Appendix 5 identifies on a Publication-by-Publication basis why each Publication contains
actionable false statement and/or mixed opinions.

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factual claims about Smartmatic’s actions, capabilities, and role in the election. The Fox

Defendants and their guests made direct, unequivocal statements alleging Smartmatic’s

involvement in election fraud.

The clear and unambiguous nature of the statements made during the Publications, and the

obvious implication drawn from those statements about Smartmatic’s role in rigging the 2020

election, means the first factor favors finding that the Publications conveyed facts. See, e.g.,

Rinaldi v. Holt, Rinehart & Winston, Inc., 42 NY2d 369, 381-82 [1977] (finding statements that

plaintiff was “probably corrupt’” and engaged in “suspicious” activity with “strong undertones of

conspiracy and illegality” were actionable as they conveyed “that plaintiff had committed illegal

and unethical actions”); Levy v. Nissani, 179 AD3d 656, 659 [2d Dept 2020] (holding that

characterizations of counter-plaintiffs as “scammers,” “con artists,” and “thieves” were actionable

as they would lead a “reasonable listener [to] understand those statements imply that the [counter-

plaintiffs] swindled the plaintiff out of money”); Kasavana v. Vela, 172 AD3d 1042, 1046 [2d Dept

2019] (affirming that statement accusing plaintiff of filing a fraudulent tax return has a “premise

meaning” that was actionable defamation).

Second, the accusations made by the Fox Defendants and their guests are precisely the type

of statements capable of being proven true or false. As Appendix 3 demonstrates, every statement

at issue is demonstrably false based on multiple undisputed truths about Smartmatic. These are not

matters of opinion or subjective interpretation but facts with clear answers. Smartmatic did not rig

the 2020 election. Its technology was used exclusively in LA County. It did not switch votes or

send votes overseas. Its software does not have an algorithm to switch votes or backdoor to monitor

votes for switching. It did not design its machines to rig elections and has not rigged elections in

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the past. It was not founded by Hugo Chavez or any foreign dictator. None of these are subjective.

These are demonstrable and verifiable facts.

The fact that each of the Lies is reasonably capable of being proven true or false (and have

been conclusively proven to be false through documented evidence and sworn testimony) means

the second factor is satisfied. See, e.g., Gross, 82 NY2d at 154 (reversing dismissal because the

publications “contain[ed] many assertions of objective fact that, if proven false, could form the

predicate for a maintainable libel action”); Khalil v. Fox Corp., 630 FSupp3d 568, 582 [SDNY

2022] (statements like “[plaintiff] is a liaison with [criminal]” are capable of being proven true or

false); McNamee v. Clemens, 762 FSupp2d 584, 601 [EDNY 2011] (distinguishing general denials

from specific statements that an accuser “will be proven a liar and has lied in front of members of

Congress” and holding the latter actionable because they can be verified as true or false).

Third, the context of the accusations signaled to readers and viewers that the Fox

Defendants were conveying facts, not opinions. As recognized in the Dominion case, it is

fundamentally “oxymoronic” for the Fox Defendants to simultaneous characterize these

statements as both “newsworthy” and “pure opinion.” Dominion, 293 A3d at 1062. Fox’s own

characterization of these accusations as “newsworthy” reveals their true nature as purported factual

reporting. The newsworthiness defense inherently acknowledges these were presented as factual

matters of public concern—not as mere commentary or opinion. The Delaware court properly

identified this contradiction, noting Fox cannot logically claim statements are simultaneously

important factual news and mere protected opinions.

Moreover, as shown in Appendix 5, the Publications included language that deliberately

signaled to viewers that they were conveying factual information about election integrity and

corporate misconduct. The Fox Hosts and guests made fact-based accusations that could be proven

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true or false. They used unambiguous language when making their accusations—not pulling

punches. They referred to investigations, evidence, proof, and sources for their accusations. And

the Fox Hosts introduced their guests (Giuliani and Powell) with platitudes that conveyed they

were credible sources with respect to the accusations. The programs were framed as pursuing the

“truth” about election integrity and were calls to action based on the “truth” that was being

disclosed during the Publications.

Equally telling was Fox’s avoidance of opinion markers. No broadcasts displayed

“opinion” banners or graphics; no allegations were prefaced with qualifiers like “in my view” or

“I believe”; no disclaimers indicated statements represented personal perspectives; no

acknowledgements were made that claims were unverified. There was nothing to signal that the

Fox Hosts and their guests were just spouting off on a fictional world that did not exist. Instead,

the Publications were presented in manner to make the audience take the accusations seriously as

facts that should not be ignored.

The context surrounding the accusations, which consistently reinforced that viewers were

receiving important factual information satisfies the third factor. See, e.g., Zervos v. Trump, 171

AD3d 110, 129 [1st Dept 2019] (holding that even in a political context, “defendant's flat-out

denial of a provable, specific allegation against him” would not be understood as pure opinion);

Khalil, 630 FSupp3d at 582-83 (finding that host’s “continued discussion of evidence and

affirmative statements” would indicate to viewers that the host was “reporting facts” rather than

expressing opinion); Levy, 179 AD3d at 659 (finding that the tone and context of calling counter-

plaintiffs “thieves” in front of the congregation, the Rabbi, and the synagogue’s president “signaled

to the average listener that the plaintiff was conveying facts about the [counter-plaintiffs]”).

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That all three factors support finding the Publications to convey facts is nothing new. That

has been the conclusion reached by multiple courts from the start. At every stage of this litigation,

the Fox Defendant’s characterization of the statements has been uniformly dismissed. At the

motion to dismiss, they pressed the argument. Smartmatic I at *24. It was rejected. On appeal to

the First Department, they pressed the argument. Smartmatic 213 AD3d at 512-13. It was rejected.

In Dominion, which involves many of the same Publications, the Delaware court twice rejected

the argument. Dominion, 2021 WL 5984265, at *27 (at motion to dismiss, finding “a reasonable

listener could conclude [the publications] are false statements of fact”); Dominion, 293 A3d at

1062 (at summary judgment, ruling the accusations are “either fact or mixed opinion”). And, in

federal court, Judge Rakoff similarly rejected this argument when examining the December 10 Lou

Dobbs Tonight broadcast. Khalil, 630 FSupp3d at 582-83 [SDNY 2022]. Fox’s persistence

demonstrates a refusal to acknowledge the clear legal consensus across multiple courts.

2. The Publications would still be actionable as “mixed opinions.”

Even if the Court were to characterize the statements as opinions, which they are not, they

would still be actionable under New York law as “mixed opinions” rather than protected as “pure

opinions.” New York courts have established an important distinction between the two. The

difference hinges on whether the statement “implies a basis in facts which are not disclosed to the

reader or listener” versus a statement that “is accompanied by a recitation of the facts on which it

is based.” Gross, 82 NY 2d at 153. The actionable element of a mixed opinion is not the opinion

itself, but rather “the implication that the speaker knows certain facts, unknown to his audience,

which support his opinion and are detrimental to the person about whom he is speaking.”

Steinhilber v. Alphonse, 68 NY2d 283, 290 [1986]; see also Miserendino v. Cai, 218 AD3d 1261,

1263-264 [4th Dept 2023] (reversing lower court’s grant of defendant’s motion for summary

judgment because a person “could reasonably infer” that the mixed statements of opinion and fact

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were “based upon certain facts known to [defendant] that are undisclosed…and detrimental to

[plaintiff]”); Davis v. Brown, 211 AD3d 524, 525-26 [1st Dept 2022] (finding mixed opinion where

defendant’s letter omitted facts about plaintiff’s role in the event to create potentially defamatory

implications about plaintiff); McNamee v. Clemens, 762 FSupp2d 584, 601 [EDNY 2011]

(statements branding plaintiff as a liar contain the “actionable implication that [defendant] knows

certain facts unknown to his audience, which support his opinion”) (citing Brach v. Congregation

Yetev Lev D'Satmar, Inc., 265 AD2d 360, 361 [2d Dept 1999]).

As shown in Appendix 5, even under an opinion analysis, the statements at issue are

actionable as mixed opinions because neither the Fox Hosts nor their guests provided a “full

recitation of the facts” necessary to transform their statements into pure opinions. Instead, they

repeatedly suggested that damaging “evidence” about Smartmatic existed without actually

presenting it. They referenced “evidence” of fraud without displaying it. They cited “sources”

without naming them. They never showed the “algorithm” used to switch votes, “backdoor” to

monitor votes, or “manual” with instructions on rigging the elections. The Fox Defendants created

precisely the scenario that defines actionable mixed opinions. In each Publication, Fox Hosts and

their guests made the ultimate accusation—the Fraud and Other Lies—while withholding the

underlying factual basis that would allow the audience to evaluate the validity.

Moreover, under New York law, opinions based on asserted “facts” that are false are also

actionable as mixed opinion. See Silsdorf v. Levine, 59 NY2d 8, 15 [1983] (reinstating defamation

claim based on a letter accusing a former mayor of corruption because the “facts” presented to

support the conclusion were false); see also Moraes v. White, 571 FSupp3d 77, 96-98 [SDNY

2021] (“where the predicate facts are disclosed but are false, such that the disparity between the

stated facts and the truth would cause a reader to question the opinion’s validity, the opinion may

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be an actionable defamatory opinion”); DiFolco v. MSNBC Cable L.L.C., 622 F3d 104, 114 [2d

Cir. 2010] (reversing dismissal of a defamation claim where the plaintiff properly alleged that

defendants knew the falsity of the underlying facts supporting their opinion); Como v. Riley, 287

AD2d 416 [1st Dept 2001] (reinstating a defamation claim when opinions about “racism” were

premised on false facts alleged in the same communication).

As shown in Appendices 3 and 5, every Publication included one or more factual

inaccuracies and every statement at issue was factually inaccurate for one or more reasons. The

Publications were littered with factual inaccuracies such as Smartmatic software being used

outside of LA County, being used by Dominion, switching or altering votes, sending votes

overseas, and being designed to rig an election. They were also littered with factually inaccurate

statements like Smartmatic being owned by Dominion (and vice versa), being a subsidiary of

Dominion (and vice versa), being founded and funded by foreign dictators, and having a track

record of vote manipulation. These are the “facts” disclosed during the Publications to support any

so-called “opinions” expressed during the Publications; and, all the disclosed “facts” are

inaccurate. The pervasive falsity of the Fox Defendants’ coverage of Smartmatic renders any

“opinions” actionable mixed opinions.

II. Smartmatic is entitled to summary judgment on defamation per se.

“For more than a week, Powell has been all over conservative media with
the following story: This election was stolen by a collection of international
leftists who manipulated vote tabulating software in order to flip millions of
votes from Donald Trump to Joe Biden. . . What Powell was describing would
amount to the single greatest crime in American history. Millions of votes
stolen in a day, democracy destroyed, the end of our centuries-old system of
self-government. Not a small thing.”

Tucker Carlson, November 19 (¶1130.)

Under New York law, a statement is defamatory per se if it “(1) charges the plaintiff with

a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or profession.”

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Kasavana v. Vela, 172 AD3d at 1044 [2d Dept 2019]. For example, accusing a company of “fraud,

deception, or other misconduct” injures the company in its trade and business and so qualifies as

defamatory per se. Harwood Pharmacal Co. v. Nat'l Broad. Co., 9 NY2d 460, 463 [1961]. When

defamation per se is established, a plaintiff need not prove damages to establish liability, as injury

is presumed. Celle v. Filipino Rep. Enterprises Inc., 209 F3d 163, 179 [2d Cir. 2000]; Kasavana,

172 AD3d at 1046 (“[i]n cases involving defamation per se, the law presumes that damages will

result, and special damages need not be alleged or proven”); Geraci v. Probst, 15 NY3d 336, 344

[2010] (damages are presumed for accusations “[of] a serious crime or that would tend to cause

injury to a person's profession or business”).

Tucker Carlson’s characterization of Powell’s accusations, which were made and echoed

during each of the Publications, was right. This Court, the First Department, and the Delaware

Superior Court have all concluded that the Publications were defamatory per se, so damage is

presumed. This Court previously held the Fox Defendants “defamed plaintiffs [the Smartmatic

entities] in their profession and/or trade and accused them of committing a serious crime.”

Smartmatic I, at *20. The First Department affirmed. Smartmatic, 213 AD3d at 512-14 (also

reinstating claims against Giuliani because they were defamatory per se). Similarly, in Dominion,

involving many of the Publications, the Delaware Court held the statements were defamatory per

se because they attacked the “basic integrity” of Dominion’s business. Id. There is no reason for

the Court to change its previous finding or that of the Delaware Court.

The Publications’ main message—the Fraud Lie—accused Smartmatic of criminal activity

as its software switched votes to rig an election. Since even misdemeanor accusations constitute

defamation per se, alleging participation in the “greatest crime in American history” clearly fits

the bill. See, e.g., Geraci, 15 NY3d at 344 (an accusation of a misdemeanor could constitute

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defamation per se); Liberman v. Gelstein, 80 NY2d 429, 435 [1992] (accusing plaintiff of bribery

constituted defamation per se because it was a serious crime); Morelli v. Wey, 2016 WL 7386549,

at *9-*10 [Sup Ct NY County 2016] (accusations of bank fraud and other crimes were defamatory

per se). Further, accusing an election technology company of switching votes, sending votes

overseas, designing software to rig elections, and having origins tied to a foreign dictator to ensure

election wins inherently damages its business reputation. See, e.g., Gatz v. Otis Ford, Inc., 262

AD2d 280, 281 [2d Dept 1999] (per se because “they accused the defendant of, and imputed to its

business, fraud, dishonesty, misconduct, and unfitness”); John Langenbacher Co. v. Tolksdorf, 199

AD2d 64, 65 [1st Dept 1993] (same, because “the disparagement impugned the basic integrity,

creditworthiness and competence of the business”).

III. Smartmatic is entitled to summary judgment on “of and concerning.”

The “of and concerning” requirement is satisfied where the plaintiff proves the defamatory

statement “was communicated to third persons who reasonably would have understood the

statement to refer to the plaintiff.” PJI 3:25. A plaintiff need not be named in the publication.

Cuthbert v. Nat’l Org. for Women, 615 NYS2d 534, 536 [3d Dept. 1994]. “The test is whether the

[publication] designates the plaintiff in such a way as to let those who knew [plaintiff] understand

that [it] was the person meant.” Dalbec v. Gentleman’s Companion, Inc., 828 F2d 921, 925 [2d Cir.

1987]. “The question is not so much who was aimed at, as who was hit” by the publication.

Corrigan v. Bobbs-Merrill Coo, 228 NY 58, 63-64 [1920]. Appendix 6 identifies how each of the

Publications were “of and concerning” Smartmatic.

A. The Publications named Smartmatic and their executives.

The Publications undeniably meet the “of and concerning” requirement since each

identifies Smartmatic by name. See Dominion, 293 A3d at 1039 (requirement satisfied because “at

some point [each publication] refer[red] to Dominion by name); Zervos v. Trump, 59 Misc. 3d 790,

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799 n. 3 [Sup Ct, New York County 2018] (same, because defendant “mentioned plaintiff” by

name). As shown in Appendix 6, the Fox Defendants and their guests refer to “Smartmatic” in

every Publication. The use of “Smartmatic,” the short form of their business name, inherently

designates both Smartmatic USA and Smartmatic Int’l. This fact alone compels a finding of

summary judgment in their favor on the “of and concerning” requirement.

The Fox Defendants also established an “identifying link” connecting the Publications to

SGO. For example:

 Publication Nos. 28, 29, and 30 identified SGO as the owner of Smartmatic. (¶435-
438.)

 Publication Nos. 60, 62B, and 63B identified Antonio Mugica as the “CEO of
Smartmatic” and displayed a graphic labeling him as “Smartmatic CEO.” (¶481, 483.)
At the time, Mugica served as CEO of SGO, the parent company operating through
dozens of “Smartmatic” subsidiaries. (¶581, 585.)

 Publication Nos. 28, 29, and 30 stated the “majority of [Smartmatic’s] shares are owned
by SGO.” (¶435-438.)

 Publication No. 47 identified Smartmatic as foreign-owned with the controlling interest

held by Antonio Mugica. (¶461.) Mugica was the majority owner of SGO. (¶583.)

 Publication Nos. 28, 29, and 30 referenced Lord Malloch Brown’s connection to
Smartmatic, including his service as “Chairman of SGO.” (¶435-438.) Lord Brown
held the position of Chairman of SGO during the period of the Publications. (¶582.)

By mentioning SGO and its executives, the Fox Defendants linked SGO to the “Smartmatic” name.

This satisfies the “of and concerning” requirement for SGO. See Gelenscer v. Orange Cnty. Pubs

Div. of Ottaway Newspapers, Inc., 116 AD2d 696 [2d Dept. 1986].

The Gelenscer case illustrates how these references render all the Publications “of and

concerning” SGO. As summarized in the “Comment” to PJI 3:25:

In Gelenscer, the defendant published two articles about alleged child abuse
in which the persons involved were referred to by fictional names but then
published a third article which referred to the prior articles and disclosed the
actual name of the child’s mother. It was held that, while the first two articles

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contained nothing “of and concerning” plaintiff, who was the child’s father,
the third publication could be used to establish the necessary identification.

PJI 3:25 (Comment); see also Gelenscer, 116 AD2d at 696. The key takeaway from Gelenscer is

a “subsequent publication by the same defendant may be used to establish an identifying link tying

prior publications to the plaintiff.” Id; see also WJLA-TV v. Levin, 264 VA 140, 153-54 [2002]

(holding that multiple publications by the same defendant concerning a specific subject over a

short period may be considered together to establish the plaintiff was the person “of and

concerning” whom the statements were made, even if the publication explicitly identifying the

plaintiff was made after others that did not). The Fox Defendants’ specific linking of SGO to

Smartmatic in certain Publications created the “identifying link” that connected all Publications

about Smartmatic to SGO.

The Fox Defendants further reinforced the link to SGO and Smartmatic Int’l by frequently

discussing alleged “foreign” interference and involvement of “foreign” companies in the 2020

election. Mentions to “foreign” interference appeared in 19 of the Publications. See Appendix 6.

Smartmatic USA is a domestic company, incorporated in Delaware with headquarters in Florida,

and therefore not “foreign.” (¶569, 619.) In contrast, both SGO and Smartmatic Int’l are “foreign”

companies. (¶574, 578.) Thus, when the Fox Defendants simultaneously brought up “Smartmatic”

and “foreign” interference and “foreign” companies, their statements are inherently “of and

concerning” SGO and Smartmatic Int’l, the specific Smartmatic entities that fit the “foreign”

description.

Finally, the Fox Defendants made the Publications “of and concerning” Smartmatic by

explicitly linking it to Dominion. (¶404-495.) In 16 of the Publications, they asserted various

ownership connections, claiming either that Smartmatic owned Dominion, Dominion owned

Smartmatic, or one was the subsidiary of the other. See Appendix 6. Further, in 36 of the

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Publications, they stated Dominion’s voting machines use Smartmatic software. See Appendix 6.

Through these statements, the Fox Defendants ensured that references to Dominion, which was

named in most of the Publications, would also be understood as being about Smartmatic.

B. The Publications discussed Smartmatic’s machines and software.

Another obvious way the Publications were “of and concerning” Smartmatic is through

their focus on Smartmatic’s machines and software. In 59 of the Publications, the Fox Hosts and

their guests specifically discussed Smartmatic machines and/or software, frequently including the

claim that Dominion machines use Smartmatic software. See Appendix 6. SGO, Smartmatic Int’l,

and Smartmatic USA are all closely affiliated with these products, as they manufacture, sell,

market, and deploy Smartmatic machines and software. (¶586, 587.) All three entities operate with

the Smartmatic brand and are known to customers, vendors, and business associates by the name.

(¶588.) The Publications are “of and concerning” Smartmatic because they name the products

(machines and software) central to their businesses and attack the brand associated with those

products.

The case Harwood Pharmacal Co. v. Nat’l Broad. Co., 9 NY2d 460 [1961] is dispositive

on this point. In Harwood, the plaintiff manufactured and sold a product called “Snooze.” Id. at

462. The defendant broadcasted a report claiming Snooze contained “habit-forming drugs,”

without identifying the plaintiff company. Id. Despite the omission of the company’s name, the

Court of Appeals concluded the report was still “of and concerning” Harwood Pharmacal. Id. at

463. The Court relied on the common law rule that “words defamatory of property are libelous per

se as to its owner when they impute to him dishonesty, fraud, deception or other misconduct in his

trade of business in connection with the property.” Id. Applying this rule, the Court found “the

telecast language could readily be understood by the television audience as charging the

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manufacturer of ‘Snooze’ with fraud and deceit in putting on the market an unwholesome and

dangerous product.” Id.

The principle directly applies here where the Publications asserted the machines and

software manufactured, sold and deployed by Smartmatic (SGO, Smartmatic Int’l and Smartmatic

USA) were implicated in switching votes (the Alteration Lie), sending votes overseas (the

Overseas Lie), being designed to rig elections (the Design Lie), and rigging the 2020 election (the

Fraud Lie). The Publications are unequivocally “of and concerning” Smartmatic because they

centered on attacks against Smartmatic’s core products—its machines and software. See also

Brentwood Pharmacy, Inc. v. Sheppard, 229 NYS2d 511, 513 [Sup Ct 1962] (statement alleging a

store “committed a crime” was deemed defamatory to the corporate owner because the charge

reflected on the owner); Larsen v. Brooklyn Daily Eagle, 165 AD 4, 6 [2d Dept 1914] (article about

toxic ice cream was defamatory not just of the product, but also reflected negatively on “the

honesty and integrity of the manufacturer”).

C. Smartmatic is a small group of related companies.

Under the principle of small group defamation, statements that defame all members of a

small group are considered “of and concerning” each individual member. “[W]here a statement

defames all members of a small group, the reference to the individual plaintiff reasonably follows

from the statement.” Elias v. Rolling Stone LLC, 872 F3d 97, 108 [2d Cir. 2017]. Indeed, “even a

general derogatory reference to a group may affect the reputation of every member.”

Rodney Smolla, Law of Defamation, § 4:71 [2d ed. 2024]. While successful claims often involve

groups of twenty-five or fewer, New York courts have allowed small group defamation claims

where the group size was at least 53.” Brady v. Ottaway Newspapers, Inc., 84 AD2d 226, 228-29

[2d Dept 1981]; see also Gross v. Cantor, 270 NY 93 [1936].

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Here, the relevant small group consists of three companies: SGO, Smartmatic Int’l, and

Smartmatic USA. All three operate using the “Smartmatic” corporate name and product brand.

(¶576-77, 585-88.) Since every Publication referred to “Smartmatic” and/or “Smartmatic”

products (machines and software), the Publications inherently pertain to the small group of

companies operating under and affiliated with that name and brand. This satisfies “of and

concerning.” See Prince v. Fox Television Stations, Inc., 2011 WL 5901926, at *6–*8 [Sup Ct

2011] (“of and concerning” satisfied where plaintiff “share[d] a common name” with the company

generally named in the defamatory statements); DeBlasio v. North Shore University Hosp., 213

AD2d 584-85 [2d Dept 1995] (same, where statements about unnamed hospital personnel could

be understood to refer plaintiff who belonged to the small group who performed the described

function being discussed but left hospital before publication); Daytree at Cortland Square, Inc. v.

Walsh, 332 FSupp3d 610, 633 [EDNY 2018] (same, where statements referring to a closely held

company could also refer to its principals due to their limited number and “intertwined”

reputations).

D. Individuals understood the Publications to be about Smartmatic.

Finally, the Publications were “of and concerning” because individuals understood them to

be about SGO, Smartmatic Int’l, and Smartmatic USA. The requirement is met when people like

“family, friends, acquaintances, coworkers, and reporters easily identified Plaintiff.” Elias, 872

F3d at 105; see also Dalbec, 828 F2d at 926 (same, where “several residents” associated plaintiff

with name used); Daytree at Cortland Square, 332 FSupp3d at 632–33 (same, where the “public

response” demonstrated identification of plaintiffs as the subject). Crucially, “[i]t is enough that at

least one recipient would make the connection” of the publication to the plaintiff. Smolla, 1 Law

of Defamation § 4:40 [2d ed 2024]. Extrinsic evidence confirms this connection. Geisler v.

Petrocelli, 616 F.2d 636, 640 [2d Cir. 1980].

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First, Smartmatic officers and employees received inquiries about the Campaign and

Publications from people globally (¶1622-24.). Antonio Mugica, CEO of SGO, has had to deal

with the Fraud Lie while engaging in sales activities for Smartmatic products and services

worldwide. (¶1622-23.) Likewise, Pedro Mugica, who handles global sales for Smartmatic USA

and Int’l subsidiaries, has had to address the Fraud Lie when interacting with customers and

potential customers around the world. (¶1624.) This demonstrates that individuals familiar with

the various Smartmatic entities clearly understood the Publications and Campaign were “of and

concerning” each of these entities.

Second, threats of violence and death directed at Smartmatic and its employees following

the Campaign provide further evidence that individuals understood the Publications concerned the

Smartmatic entities. (¶1612-13, 1625.) Antonio Mugica, SGO’s CEO, personally received dozens

of these threats. (¶1612a.) Smartmatic received threats via its corporate email accounts and through

customer and corporate phone lines. (¶1613.) This included:

 November 14: “You fucking fruads [sic] and Treasonous, Seditious Bastards need to
start talking because if this Election is Certified based on your active Fraud
Orchestration .... you all will be hunted.” (¶1613b.)

 November 15: “YOUR COMPANY SHOULD BE ASHAMED OF YOURSELF: you

are a cheating socialist PIG. God sees what you are doing and in the end you will have
to answer for your sins.” (¶1613e.)

 November 21: “The only way to resolve your interference in Western democracy is to
shoot dead your company executives.” (¶1613h.)

The fact that individuals motivated by the Campaign and Publications knew precisely who to target

with their outrage—Smartmatic and its executives—demonstrates they clearly identified the

Smartmatic entities as the subject of the Publications.

Third, Fox’s own audience understood the Publications were “of and concerning”

Smartmatic. (¶1614.) In 2020, Fox allowed viewers to submit “comments and feedback related to

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broadcasts through [its] Zendesk platform.” (¶1614a.) Examples of viewer comments posted in

connection with the specific Publications include:

 November 13: [Comments] “Smartmatic created the Dominion software. Smartmatic

is run by Lord Mark Malloch Brown who works for George Soros.” (¶1614b.)

 November 18: [Comments] “Sydney Powell. Linn Wood. Attorneys of impeccable

reputation are stating with absolute certainty that the SmartMatic software used on the
voting machines of all the swing states had been developed in Venezuela for that
country’s dictators to win elections. They claim with equal certainty that hundreds of
thousands of TRUMP votes were SWITCHED by this software, to create invalid votes
for Biden. Bartiromo and Dobbs, Hannity and Carlson are unafraid to carry this
story…” (¶1614c.)

These comments demonstrate that Fox viewers understood the Publications concerned Smartmatic

and reiterated the Fraud Lie and Other Lies they encountered during the Publications.

Fourth, individuals who posted and commented on the Publications on social media

understood the Fox Defendants had targeted Smartmatic and that they were about Smartmatic.

(¶1615.) Examples of social media posts that referenced and/or republished portions of the

Publications include:

 November 12: Commenting on segment from Lou Dobbs Tonight, poster wrote:
“Smartmatic was formed to fix elections. . . Smartmatic was formed by 3 Venezuelans
with strong ties with Chavez, now Maduro. . . Smartmatic owns Dominion. . . ”
(¶1615b.)

 November 12: Commenting on a segment from Lou Dobbs Tonight, poster wrote:
“Dominion is a Smartmatic company.” (¶1615c.)

 November 12: Commenting on a segment from Lou Dobbs Tonight, poster wrote:
“[W]ell! [T]his is VERY revealing. [D]ominion voting machines are the machines
used in MANY states to count our votes—and either delete them in some place or give
them to [B]iden. [D]ominion is owned by [S]martmatic. [S]martmatic is owned by
VENEZUELA.” (¶1615d.)

 November 13: Commenting on segment from Lou Dobbs Tonight, poster wrote: “Last
night on Lou Dobbs, Giuliani said the Venezuelan firm Smartmatic owns Dominion.”
(¶1615a.)

 November 15: Commenting on a segment from Sunday Morning Futures with Maria
Bartiromo, poster wrote: “[I] can’t wait until the [S]ydney [P]owell interview on fox is

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available to post. [S]he just sid one of the big wigs behind [D]ominion/[S]martmatic
voting machines . . . is now on [B]iden’s transition team.” (¶1615e.)

 November 15: Commenting on a segment from Sunday Morning Futures with Maria
Bartiromo, poster wrote: “BREAKING; Sidney Powell on Maria Bartiromo: [-]
Massive criminal election fraud with Dominion & Smartmatic. [-] This will overturn
the entire election. [-] Trump won not by 100’s of 1000’s of votes but my many
millions of votes[.] [-] We have so much evidence it’s coming in by firehouse.”
(¶1615f.)

 November 18: Commenting on a segment from Lou Dobbs Tonight, poster wrote: “Let
this segment slowly seep in! Foreign Election Involvement: @RudyGiuliani says votes
in 28 states were sent to Germany and Spain to be counted by Smartamtic
#MAGA#AmericaFirst#Dobbs.” (¶1615g.)

The identification of Smartmatic as a subject of the Publications by its customers, potential

customers, and average viewers and readers reinforces that the Publications were “of and

concerning” Smartmatic.

IV. Smartmatic is entitled to summary judgment on publication.

Smartmatic bears the burden of proving, and has proven, publication of the false and

defamatory statements. NY PLI 3:26. Publication is a “term of art [] signifying communication of

the defamatory statement to any third party.” Osorio v. Source Enterprises, Inc., 2006 WL

2548425, at *6 [SDNY Sept. 5, 2006]. “Publication to even one person other than the defamed is

sufficient.” Torah v. Hodak, 147 AD3d 502, 504 [1st Dept 2017]; see also Penn Warranty Corp. v.

DiGiovanni, 10Misc3d 998, 1004 [Sup Ct 2005] (single posting on website sufficient to prove

publication). Here, it is undisputed that the Publications were disseminated widely: broadcast on

Fox News Channel and Fox Business Network, posted on their websites, and shared on the Fox

Defendants’ social media platforms, reaching millions globally. (¶497-508.) Smartmatic is entitled,

therefore, to summary judgment on the publication element.

Smartmatic is also entitled to summary judgment on the responsibility of each Fox

Defendant for the Publications. New York law holds that everyone involved in creating and

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disseminating a defamatory statement is equally responsible for the publication. Brown v. Mack,

56 NYS2d 910, 916 [Sup Ct 1945] (“all who take part in the procurement, composition and

publication of a libel are responsible in law and equally so.”). This includes not just the original

author, but “anyone who participates in its publication, as demonstrated by the many defamation

cases brought against reporters, editors and publishers of a defamatory newspaper.” Robertson v.

Doe, 2009 WL 10676484 at *13 [SDNY Dec. 17, 2009]; Anderson v. NY Telephone Co., 35 NY2d

746, 750 [1974] [Gabrielli, J., concurring] (“He who furnishes the means of convenient circulation,

knowing, or having reasonable cause to believe, that it is to be used for that purpose, if it is in fact

so used, is guilty of aiding in the publication and becomes the instrument of the libeler.”). Anyone

who concurs with, or approves, the unlawful act is considered guilty. Seelman, E.P., The Law of

Libel and Slander in the State of New York §141 [1941]. Actions like authorization, approval,

acquiescence, and ratification of a defamatory statement constitute participation in its publication.

See, e.g., Van Arsdale v. Fitzgerald, 89 NYS2d 535, 536 [Sup Ct 1949] (“there is a definite

allegation that the libel was authorized, acquiesced in and ratified by defendant”); Moyle v. Franz,

46 N.Y.S.2d 667, 669 [2d Dept 1944] (“most of the defendants had acquiesced in defamation of

the plaintiff”).

A. Fox News is responsible for the Publications.

Fox News is responsible because it broadcasted and rebroadcasted the Publications on its

networks—Fox News Channel and Fox Business Network. (¶497-501.) Modern defamation law

recognizes: “One who broadcasts defamatory matter by means of radio or television is subject to

the same liability as an original publisher.” Restatement (Second) of Torts §581(2). The rationale

for holding broadcasters accountable is that they, “[f]or their own business purposes,” “initiate,

select and put upon the air their own programs….” Id., comment g. New York law specifically

recognizes this principle, holding broadcasters such as Fox News responsible for the publication

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of defamatory broadcasts. See, e.g., Prozeralik v. Cap. Cities Commc’ns, Inc., 82NY2d 466, 478

[1993].

Fox News is also responsible for the republication of the Original Broadcasts on Fox News’

websites in both video and transcript form. (¶502.) Under New York law, “online republication can

be actionable where it ‘is intended to and actually reaches a new audience.’” Bacon v. Nygard,

2019 WL 3254983, at *6 [Sup Ct NY County July 19, 2019], citing Firth v. State, 98 NY2d 365,

371 [2002]. Fox News’ online republications of the Original Broadcasts were accessible to

millions around the world. (¶503.) They are still accessible today. (¶504.) Notably, Fox News did

not contest this issue, and the Dominion court found as a matter of law that Fox News was

responsible for the broadcast, rebroadcasts and Internet posting of the Original Broadcasts.

Dominion, 293 A.2d at 1040.

B. The Fox Hosts are responsible for the Publications.

The Fox Hosts are responsible for their Publications for the same reason an author is

responsible for an article that appears in the newspaper. During each of the Original Broadcasts,

the Fox Hosts made false and defamatory statements about Smartmatic. See Appendix 3. These

false and defamatory statements would not have existed but for them being uttered by the Fox

Hosts themselves. The Fox Hosts are responsible for what they said during their shows, just as an

author is responsible for the article published under her byline, including when they publish

something someone else said. See, e.g., Hogan v. Herald Co., 84AD2d 470, 477-78 [1982]

(denying reporter’s and newspaper’s motion for summary judgment for publishing defamatory

article which reported police department’s statement that plaintiff had been arrested); Biro v. Conde

Nast, 883 FSupp2d 441, 462-63 [SDNY 2012] (denying motion to dismiss defamation claim

against journalist David Graham and publisher Conde Nast for article quoting former business

associate of plaintiff who called plaintiff a “classic con man” and a “phony.”); Khalil, 630 FSupp

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at 581-82 (denying motion to dismiss defamation claim against Fox and Lou Dobbs for the “Cyber

Pearl Harbor” broadcast); Condit v. Dunne, 317 FSupp2d 344, 364-65 [SDNY 2004] (denying

motion to dismiss defamation claim against reporter Dominick Dunne for repeating allegations

from “sources” implicating defendant in murder).

It is legally irrelevant that the Fox Hosts may have been repeating statements they heard

from others. New York law has long recognized that defendants are responsible for publishing or

republishing defamatory statements made by others. Geraci, 15 NY3d at 342. (“Our republication

liability standard has been consistent for more than one hundred years”). “[E]very person who

repeats a slander is responsible for the damage caused by such repetition.” Id. citing Schoepflin v.

Coffey, 162 NY 12, 18 [1900]. Therefore, “it is well settled that Defendants cannot escape liability

simply because they are conveying someone else’s defamatory statements without adopting those

viewpoints as their own.” Biro, 962 FSupp2d at 276.

Likewise, the Fox Hosts bear responsibility for defamatory statements made by guests

during the Original Broadcasts. This responsibility stems from their participation in bringing these

defamatory statements into existence, i.e., creating and enabling the dissemination of defamatory

content. Under New York law, “all who take part in the procurement, composition and publication

of a libel are responsible in law and equally so.” Brown, 56 NYS2d at 916. Anyone who

“participate[s]” in the “creation and/or publication” are responsible. See Pisani v. Staten Island

Univ. Hosp., 440 FSupp2d 168, 179 [EDNY 2006] (“the plaintiff has adequately pled that the

[defendants] participated in the creation and/or publication of the...statement containing the

alleged defamatory statement”). Here, the Fox Hosts actively participated in the creation and

procurement of the defamatory statements made by guests during their Original Broadcasts. Their

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role in facilitating, encouraging, and amplifying these statements makes them legally responsible

for the content broadcast during their programs.

Maria Bartiromo. Bartiromo took deliberate steps to create the circumstances for

defamatory content to be aired about Smartmatic on her shows. For example, for the November

15 show, she invited both Giuliani and Powell to appear as guests. (¶1300.) Both interviews were

pre-recorded before the show aired, rather than conducted live. (¶1302.) Prior to these pre-

recordings, Bartiromo spoke with her guests and she had a clear understanding of what they

intended to say during their appearances. (¶1303.) She knew, for example, that Powell was going

to discuss the Smartmatic allegations. (¶1303.) With this foreknowledge, Bartiromo drafted her

opening remarks to align with her awareness that Giuliani and Powell were going to claim the

election was stolen through voting machines. (¶1304-07.) During her interviews, Bartiromo

actively prompted defamatory statements by directly asking them about Smartmatic. (¶1308-09.)

And she enhanced this planned narrative with prepared graphics specifically designed to facilitate

her interviews. (¶1307-08.)

The next day, November 16, Bartiromo replayed defamatory clips about Smartmatic from

her November 15 show on her Mornings with Maria show. (¶1311.) She also replayed her own

defamatory statements about Smartmatic having a “backdoor” from her November 15 show.

(¶1313.) The following day, November 17, Bartiromo again replayed defamatory clips from her

November 15 show, commenting that “Rudy Giuliani and Sidney Powell have joined me now

multiple times and they are zeroing in on the software made by Smartmatic where they say the

software was manipulated and it changed Trump votes to Biden votes.” (¶1315.) Privately,

Bartiromo expressed support for Giuliani’s and Powell’s mission to overturn the election. She

indicated that she was doing her part by having them on her show. (¶554-56.)

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Jeanine Pirro. Pirro actively sought to feature Powell and Giuliani on her shows in

November 2020, testifying “I wanted [Sidney Powell] on my show. I wanted Rudy [Giuliani] on

my show.” (¶1340.) Before Powell’s November 14 appearance, Pirro communicated with her

multiple times about the content, fully aware that election fraud allegations would be discussed.

(¶1341-42.) Powell delivered as anticipated, responding to Pirro’s questions with claims that

Smartmatic and Dominion were “inextricably intertwined” and that Smartmatic “was created for

the express purpose of being able to alter votes and secure the re-election of Hugo Chavez.”

(¶1345.)

Lou Dobbs. Dobbs strategically featured Giuliani and Powell on his shows in November

and December of 2020, deliberately focusing on election fraud allegations. (¶1242-63.) On

November 12, he prompted Giuliani with questions about Dominion and election integrity, leading

to false claims that “Dominion is a company that’s owned by another company called Smartmatic,”

Smartmatic was “formed in order to fix elections” by “three Venezuelans” close to Chavez.

(¶1243.) Similarly, on November 16, Dobbs had Powell on his show with the understanding that

she would be discussing claims about the election being rigged. (¶1247.) Dobbs directly asked

about Dominion, eliciting her false assertion that “Smartmatic was designed in a way…that the

system could change the vote of each voter without being detected.” (¶1248.) Powell continued

with other defamatory statements about Smartmatic in response to Dobbs’ questions. (¶1248.)

Dobbs continued this pattern on his November 18 show, inviting Giuliani on to discuss

voting machine fraud claims. (¶1249.) Dobbs proactively raised the topic of Smartmatic by reading

from what he called an “affidavit” (it was not) that lied about Smartmatic’s role in the 2013 election

in Venezuela. (¶516.) He then asked Giuliani to comment on the lie, which led Giuliani to falsely

claim that Smartmatic was “founded” for the purpose of fixing elections.” (¶1250.)

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On the November 19 show, Dobbs not only approved airing pre-taped defamatory content

from Giuliani and Powell’s press conference earlier that day, but also introduced Powell’s clip with

references to “algorithms in the Smartmatic software” that allegedly “change[d] results in the

presidential election.” (¶1251-52.) Dobbs then played a clip of Powell stating that Smartmatic’s

“software itself was created with so many variables and so many backdoors that can be hooked up

to the Internet or a thumb drive stuck in it or whatever. But one of its most characteristic features

is its ability to flip votes.” (¶1252a.)

Dobbs invited Powell onto the November 19 show, again knowing she would discuss the

voting machine claims. (¶1253.) In the interview, Dobbs specifically asked Powell about the links

between Smartmatic and Dominion, enabling her to spread more falsehoods about vote

manipulation. (¶1254.) Powell stated “the Dominion machines run the Smartmatic software and

or parts of the key code of it. And that is what allows them to manipulate the votes in any way the

operators choose to manipulate them.” (¶1254a.) Throughout these appearances, Dobbs

consistently provided the platform, framed the discussion, and posed the specific questions that

led to numerous defamatory statements about Smartmatic.

Weeks later, Dobbs invited Powell back for his December 10 show, knowing she would

continue spreading voting machine claims. (¶1255-57.) He introduced her as having “new

information regarding electoral fraud” and accused individuals of orchestrating “a Pearl Harbor

style cyberattack on the 2020 Presidential election.” (¶1258.) Dobbs displayed a graphic naming

“Antonio Mugica, the CEO of Smartmatic, an electoral voting corporation,” and then prompted

Powell with the question: “You say these four individuals led the effort to rig this election. How

did they do it?” (¶1258a.) This framing enabled Powell to make unfounded allegations that

Smartmatic and Dominion “designed and developed” programs allowing vote manipulation,

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falsely claiming: “We now have reams and reams of actual documents from Smartmatic and

Dominion, including evidence that they planned and executed all of this.” (¶1258b.)

The Fox Hosts were active participants in their Publications, not passive observers. They

deliberately solicited Giuliani and Powell as guests, fully aware and intending for them to discuss

election fraud claims, including allegations about Smartmatic. Rather than merely providing a

platform, the Fox Hosts prompted their guests with targeted questions and contributed their own

defamatory statements. This created the perfect environment for Giuliani and Powell to voice

claims about Smartmatic made nowhere else. Through this calculated approach of invitation,

promotion, and facilitation, the Fox Hosts directly participated in the “procurement” and

“creation” of the defamatory statements made on their shows. They are, therefore, responsible.

See, e.g., Greenberg v. CBS, Inc., 69 AD2d 693, 698 [2d Dept 1979] (holding that reporter Mike

Wallace could be personally liable for “allegedly defamatory statements concerning the plaintiff’

by an on-air guest “in response to questions asked by Wallace”).

Third, the Fox Hosts bear responsibility for Publications shared on their social media

accounts. See Appendix 3. “[O]nline republication can be actionable where it is intended to and

actually reaches a new audience.” Bacon, 2019 WL 3254983, at *6. In addition, republication

becomes actionable when “additional material is added to the prior statements.” Giuffre, 410

FSupp3d 564, 572 [SDNY 2019]. By posting segments from their shows across multiple

platforms—Facebook, Twitter, Instagram, and Parler—they reached a new audience beyond

television viewers. Id. Moreover, they did not simply repost content but enhanced these

republications with additional commentary that often contained further defamatory statements

about Smartmatic. Id. This combination of reaching new audiences while adding defamatory

content makes them responsible for the social media Publications. See, e.g., Zuckerbrot v. Lande,

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75Misc3d269, 194-95 [Sup Ct 2022] (finding defendant published defamatory statements by

reposting comments of others on social media). 12

C. Fox Corporation is responsible for the Publications.

“The buck stops here.”

The Murdochs toggle between claiming tight control over Fox News when it suits their

purposes and denying responsibility when liability looms. In Nevada, Rupert and Lachlan argue

that a family trust must be amended to ensure Lachlan maintains control over Fox News. (¶1218.)

In Delaware, they try to fend off a shareholder claim by arguing that the Fox Corp Board, including

the Murdochs, properly oversaw Fox News during the Campaign. (¶1219-20.) In SEC filings, Fox

Corp justifies the Murdochs multi-million-dollar compensation based on their stewardship of Fox

News, the crown jewel in the empire. (¶1184-90.) Yet, in this litigation, Fox Corp portrays Rupert

and Lachlan as passive observers with no responsibility for the Campaign and Publications. This

calculated contradiction collapses under Rupert’s own admission that “the buck stops” with him

and Lachlan when it comes to Fox News. (¶1204.) Fox Corp is responsible for the Publications.

1. Rupert and Lachlan exercise control and oversight over Fox News,
including over content.

Fox Corp has explicitly and publicly positioned Rupert and Lachlan as Fox News’ ultimate

leadership, the senior most officers, before and during the Campaign. The Fox News website

identified just four individuals as the “Fox News Executive Staff.” (¶1184.) Rupert and Lachlan

occupy the top spots as “Chairman, Fox Corporation” and “Executive Chairman and Chief

12
The Fox Hosts were agents of Fox News and acting within the scope of their employment for
the Publications. (¶10, 12, 14, 151, 165-170, 177-178, 187-188, 194-197, 1173-78.) In addition,
Fox News employees also assisted in creating not only the Original Broadcasts but also the social
media posts. (¶26, 196-197, 508, 1259-63, 1270, 1283, 1287.) Fox News is thus responsible for all
Publications, including those on social media. Schermerhorn v. Rosenberg, 73 AD2d 276, 285-86
[2d Dept 1980].

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Executive Officer, Fox Corporation,” respectively, above Fox News Media CEO (Suzanne Scott)

and the COO/CFO (Joseph Dorrego). (¶1184a.) Fox News thus informed the public of the small

“executive staff” running the show. This was not mere window dressing: Fox Corp’s SEC filings

confirmed the Murdochs’ operational control. (¶1184-90.)

Rupert and Lachlan received the highest compensation packages at Fox Corp in 2020

precisely for their oversight of key assets, including Fox News. (¶1186.) According to SEC filings,

Rupert provided “broad strategic vision” and made “key operational decisions...throughout [Fox

Corp],” which included Fox News. (¶1187.) Lachlan, with his wealth of knowledge of the media

industry, supervised “strategic, operational and corporate decisions” and oversaw the entire

“portfolio of news, sports, and entertainment assets,” which included Fox News. (¶1188.) Their

focused attention on Fox News was not only logical but economically essential— Fox News

generated approximately 90% of Fox Corp’s earnings in 2020, making it by far the company’s

most important business. (¶5-7.)

Fox Corp also told its shareholders that Rupert and Lachlan were indispensable in its

material risk disclosures:

The Company’s business depends upon the continued efforts, abilities and
expertise of [Rupert] and [Lachlan] . . . The Company believes that the
unique combination of skills and experience possessed by its executive
officers would be difficult to replace and that the loss of its executive officers
could have a material adverse effect on the Company, including the
impairment of the Company’s ability to execute successfully its business
strategy.

(¶1189a.) Rupert and Lachlan both affirmed under oath that they contributed their “efforts,

abilities, and expertise” to Fox News in November and December 2020—the exact timeframe of

the Campaign. (¶1189b.) Of course they did. The period right after the 2020 election represented

perhaps the most critical juncture in Fox News’ recent history.

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As discussed above, following the network’s Arizona call, Fox News faced unprecedented

backlash and plummeting ratings. Supra at 7-10. This represented a material risk to Fox Corp. Fox

Corp told its shareholders:

A decrease in advertising expenditures, reduced demand for the Company’s

programming, or the inability to obtain market rating that adequately
measure demand for the Company’s content could lead to a reducing in
pricing and advertising spending, which could have a material adverse effect
on the Company’s business, financial condition, or results of operations.

***

To the extent our content, in particular our live news and sports programming
and primetime entertainment programming is not compelling to consumers,
our ability to maintain a positive reputation may be adversely impacted. . .
If we are not successful in maintaining or enhancing the image and awareness
of our brands, or if our reputation is harmed for any reason, it could have
a material adverse effect on our business, financial condition and results of
operation.

(¶1190.) Lachlan agreed these statements were true in November 2020. (¶1190a.) Given that Fox

News was facing an unprecedented backlash following the Arizona call, and that backlash “could

have a material adverse effect” on Fox Cop, there was never a more important time for Rupert and

Lachlan to exercise their control over Fox News.

Facing this unprecedented threat to Fox Corp’s financial health, Rupert and Lachlan

exercised their authority as they had always done. Rupert had authority to direct Fox News’s

coverage of election fraud claims and discussed the matter with both Lachlan and CEO Scott.

(¶1205.) Working through Scott—his modus operandi given their multiple weekly

communications—Rupert provided specific guidance about what hosts should and should not say

on air. (¶1206-08.) Critically, Rupert acknowledged he could have prohibited particular guests

from appearing on Fox News and could have recommended removing Dobbs, Bartiromo, and Pirro

from air during November and December 2020. (¶1209.)

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Lachlan wielded equal authority over Fox News content, with the power to direct coverage

of election fraud. (¶1210.) Like his father, Lachlan exercised control through CEO Scott. (¶1211.)

He provided guidance on “tone and narrative” and made direct suggestions about what hosts

should and should not say on air. (¶1212.) During the November/December 2020 period, Lachlan

actively made suggestions about topics, guests, and messaging at Fox News. (¶1213.) Lachlan

could have instructed Scott to bar any particular guest from appearing on Fox News. (¶1214.)

CEO Scott herself confirmed the Murdochs’ hands-on involvement, testifying she

discussed “all aspects of the business” with them and received calls from each “about once a day.”

(¶1200.) The documentary evidence speaks volumes: during November and December 2020, Scott

exchanged countless emails and texts with both Murdochs addressing the post-Arizona backlash,

election fraud claims, Giuliani and Powell’s credibility, host performance, personnel decisions,

and post-election coverage strategy. (¶1206-07,1211-12.) Scott’s testimony crystalizes the chain

of command: Rupert and Lachlan are the bosses. (¶1197-99.)

Fox Corp’s own corporate representative confirmed the ultimate authority structure,

testifying that Fox Corp maintained oversight over Fox News. (¶1191.) He acknowledged “there’s

a structure in place to monitor what’s going on at the company overall and active dialogues from

the leaders of [Fox Corp’s] business units, including Fox News, with executives at the corporate

level.” (¶1192.) Fox Corp did not fully delegate monitoring for defamation risk to Fox News

executives, instead maintaining “oversight responsibility” at both the board and senior

management levels. (¶1193.) The representative stated: “Fox [Corp] has general oversight . . .

about aspects of Fox News operations, including programming and editorial decisions.” (¶1194.)

Fox Corp oversees editorial practices, including fact-checking and review processes, and expects

Fox News employees to follow Fox Corp’s standards of business conduct. (¶1195,1172-1173.)

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While Fox Corp grants Scott certain control of Fox News, this represents a delegation choice—

not an abdication of authority. (¶1196.)

2. Rupert and Lachlan authorized the “pivot” that resulted in the

Publications and Campaign.

The Murdochs directly approved Scott’s strategic pivot to “keep the audience who loves

and trusts us” by ensuring viewers knew Fox was “still champions for them.” (¶284-296.) On

November 8, they held a “long talk” with Scott specifically to address falling ratings, discussing

“the type of guests who would be booked,” and coverage strategies. (¶281-82.) Rupert understood

by November 9 that Scott planned on pivoting to reassure the audience, while Lachlan received

confirmation that Fox would “plant flags letting the viewers know we hear them and respect them.”

(¶284-89, 291-92.) This four-part pivot, including the Publications and Campaign, began on

November 9, with Rupert and Lachlan remaining in the loop throughout. Supra at 10-21.

Stating the obvious, Rupert and Lachlan were aware that Fox News was publishing the

election fraud claims, including claims about voting machines being used to steal the 2020

election. (¶1532-33,1535.) Rupert approved featuring Giuliani and Powell on Fox News,

regardless of whether they were saying untrue things and was “very happy the way Fox News was

handling it.” (¶1534,1542-43.) Lachlan likewise believed Fox News should air Giuliani and Powell

because their election fraud allegations were “newsworthy.” (¶1536-37.) Rupert himself

acknowledged that election fraud claims were central to the strategy to recapture the audience

alienated by the Arizona call—nothing would better satisfy pro-President Trump viewers than

amplifying pro-President Trump election fraud narratives. (Id. ¶286-89.)

Moreover, Fox Corp directors understood that the Murdochs were the ones in charge when

it came to the election fraud narrative being pushed by Fox News. Director Ryan, for example,

understood that Rupert and Lachlan “were both deeply involved with Fox News’ business” because

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“they were the co-chairs of the company.” (¶1215.) Ryan further understood that Rupert and

Lachlan’s “responsibilities included facilitating the flow of information between the board of

directors and Fox News’s management.” (¶1216.) On December 6, Ryan asked the Murdochs—

not Scott—to have Fox News rein in the election fraud coverage, advising them:

I see this as a key inflection point for Fox, where the right thing and the smart
business thing to do line up nicely. A solid pushback (including editorial) of
[Trump’s] baseless calls for overturning elections, et cetera, will undoubtedly
accrue pushback and possibly a momentary ratings dip, but will clearly
redound to our benefit in terms of credibility.

Ryan stated he “sent [this] text to the Murdochs because [he] understood they facilitated the flow

of information between the board and management” and “were in a position to implement the

suggestions that [he was] making.” (¶1217a.)

Director Dias did the same thing albeit a bit later. By January 11, Dias confided in Ryan

that she thought Fox News had reached the point where it was necessary to send a message about

what “is NOT permissible on the network.” (¶1546.) That same day, she forwarded an article to

the Murdochs about Fox News’ role in spreading falsehoods before January 6. (¶1547.) She wrote:

It would have been unthinkable just a few days ago that Fox News would be
called upon to explain what represents abuse of power and what is
unacceptable in a democracy. Yet, considering how important Fox News has
been as a megaphone for Donald Trump, directly or indirectly, I believe the
time has come for Fox News, or for you Lachlan to take a stance. It is an
existential moment for the nation . . . and for Fox News as a brand. I do not
believe that the company can stay silent on this matter.

(¶1548.) When board members needed action regarding Fox News content, they bypassed Scott

and went straight to the Murdochs. (¶1216-17, 1547-48.) They clearly recognized that the “buck

stops” with Rupert and Lachlan regarding Fox News’s editorial direction, particularly in

connection with disinformation spread about the 2020 election.

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3. Fox Corp’s Board and executives had direct oversight responsibility for
preventing and addressing the Campaign’s defamatory content.

While the “buck stops” with Rupert and Lachlan, they were not the only Fox Corp

executives and directors responsible for addressing disinformation published by Fox News. In the

ongoing Fox Corp Derivative Litigation, Fox Corp has acknowledged that its Audit Committee

was tasked with monitoring and addressing disinformation published by Fox News. (¶1220.) In

that case—where investors seek to hold directors personally liable for financial risks taken on by

Fox Corp due to the Campaign—the Fox Corp directors are defending themselves by arguing they

actively monitored risks associated with publishing false information. (¶1220a.)

In making this argument, the Fox Corp directors point to the Audit Committee. The Audit

Committee is responsible for reviewing “any legal or regulatory matter that could have a

significant impact on the Company’s financial statements” and “the Company’s policies and

practices with respect to risk assessment and risk management.” (¶1220b.) Fox Corp’s filings

acknowledge “the risk of defamation liability is a species of legal risk” falling under this purview.

(¶1221.) “Both the Audit Committee and the full board were regularly briefed at their quarterly

meetings by the company’s chief legal and policy officer and other in-house lawyers on significant

legal and regulatory matters, including defamation-related risks.” (¶1221a.) This oversight was not

limited to pending litigation but included reviewing processes to reduce exposure to future

defamation claims. (¶1221b.) Fox Corp held one such quarterly meeting on November 10, just one

day after Scott and the Murdochs decided on their “pivot” strategy and two days before the

Campaign began. (¶1222, 284.)

The Audit Committee was also responsible for establishing and overseeing “procedures for

evaluating alleged violations of the company’s Standards of Business Conduct.” (¶1223.) The

code of conduct “identifies accuracy of information as one of [Fox Corp’s] foremost core values;

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emphasizes [Fox Corp’s] commitment to conduct [its] business with utmost integrity; declares that

[its] opinions do not drive [its] news reporting, which pursues the facts wherever they may lead;

and specifies compliance with the law as crucial to [Fox Corp’s] business.” (¶1223a.) Dias, who

served on the Audit Committee, confirmed that one of the responsibilities of the Audit Committee

was oversight of defamation liability risks. (¶1227.) Lachlan also confirmed that, in 2020, the

Audit Committee was one of the groups who “assisted the board of directors in fulfilling its

oversight duties concerning . . . the dissemination of true and accurate information.” (¶1224.)

Beyond the Audit Committee, the Board and senior management maintain oversight

responsibility for defamation risk. (¶1225.) There is not just “one individual [at Fox Corp] that’s

responsible for that risk,” and those with responsibility are “[n]ot just at the executive level.”

(¶1225a.) Fox Corp executives with explicit responsibility for defamation risk at Fox News

include, Lachlan and Chief Legal Officer Viet Dinh. (¶1225b.) Dinh confirmed he and other Fox

Corp executives had oversight over the accuracy of Fox News reporting. (¶1225-26.) While Scott

manages day-to-day publishing decisions at Fox News, the corporate structure places her directly

under Lachlan’s supervision. (¶1201.) This reporting relationship means Lachlan bears

responsibilities for ensuring Scott’s decisions do not expose the company to defamation risk.

(¶1202.) That is precisely why Directors Ryan and Dias bypassed Scott and appealed directly to

the Murdochs with concerns about election disinformation.

4. Fox Corp is responsible for the Publications based on actions and

inactions of the Murdochs, other executives, and the Board.

Fox Corp bears responsibility for the Publications through executive and Board control

over Fox News. First, through Rupert and Lachlan, Fox Corp authorized, acquiesced, and

concurred with the Campaign and Publications as part of the “pivot.” Supra at 10-17. Rupert and

Lachlan exercised oversight over Fox News in November and December 2020. Supra at 99-102.

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They were the ones ultimately in charge and exercised their authority through directions to Scott.

Supra at 99-106. The “pivot” may have been Scott’s brainchild, but it was discussed with and

approved by Rupert and Lachlan. Supra at 10-17, 103-04. The Campaign and Publications were

part of their approved pivot. Supra at 10-21.

A defendant need not be the actual broadcaster to bear legal responsibility. See Crane v.

Bennett, 177 NY 106, 109 [1900] (liability attaches “not upon the ground of his being the publisher,

but because he is responsible for the acts of the actual publisher”). Authorization, approval,

acquiescence, and ratification are all recognized ways of participating in the publication of a

defamatory statement. Supra at 91-93. Responsibility “may be inferred from the setting in motion

of the procedure designed to achieve such result,” and that a request to publish “need not be

expressed, but may be inferred from the defendant’s conduct.” Brown v. Mack, 56 NYS2d 910,

916 [Sup Ct., Kings County 1945], quoting Newell on Slander and Libel, p. 377. Rupert and

Lachlan, by approving the pivot, knowingly greenlighted the inevitable Campaign and

Publications.

Second, through the Murdochs and the Board, Fox Corp acquiesced to the Publications and

Campaign by failing to intervene despite their clear authority and responsibility to do so. (¶1542-

1583.) As the senior executives on Fox News’ Executive Team, the Murdochs had an explicit duty

to prevent false content. Fox Corp’s own Chief Legal Officer Dinh testified “executives at Fox

News” have an obligation to “prevent and correct known falsehoods.” (¶1226.) This responsibility

runs to executives “in the chain of command.” (¶1226,1569.) The Murdochs occupied the apex of

this command structure, had control over Fox News (as admitted in SEC filings and their own

testimony), yet deliberately chose not to stop the Campaign. (¶1543.) Their inaction was

acquiescence.

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The Board and Audit Committee likewise failed in their oversight duties despite clear

awareness of problematic content. During their November meeting—concurrent with the pivot—

they received the “Workplace” survey about Fox News. Supra at 49-50.

Id. The survey served

as a stark warning that Fox News content contradicted Fox Corp’s stated standards of conduct—

yet the Board took no action to halt the defamatory Campaign.

The most “newsworthy” topic during the November Board meeting was unquestionably

election fraud claims. Rupert acknowledged that nothing interested Trump supporters more during

this period. (¶289.) Both Murdochs described these claims as “newsworthy” and thus appropriate

of being covered by Fox News. (¶1534, 1536.) Director Ryan confirmed that it “wouldn’t surprise

me” if the Board discussed Fox News’ election coverage and “it would surprise me if [the Board

was] not talking about” the “baseless election conspiracy theories” circulating in November 2020.

(¶1544.) As Ryan noted, this period “was a pretty important inflection point, not just for the

company Fox, but for the country and for the conservative movement itself.” (¶1545.)

Nonetheless, the Fox Corp Board and Audit Committee abdicated their oversight

obligations “concerning . . . the dissemination of true and accurate information.” Supra at 49-50,

104-06. Lachlan’s testimony reveals a stunning governance failure. He could identify no “controls”

implemented by the Board or Audit Committee “concerning the dissemination of truthful and

accurate information,” nothing they did “for overseeing compliance of Fox News Media

employees with journalistic ethics,” and nothing to “oversee Fox News Media’s journalism

activities.” (¶1228.) This inaction directly contradicts Fox Corp’s own legal arguments in other

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proceedings where they point to the Board and Audit Committee’s responsibilities to monitor

defamation risk. Supra at 104-05. This inaction constitutes clear acquiescence to the Campaign.

The Murdochs, the Board, and the Audit Committee’s inaction to prevent or stop the

Campaign makes them as accountable for the Publications as if they directly ordered it. The

result—not whether achieved through action or inaction—is what matters legally. The U.S.

Supreme Court recently addressed this principle in Delligatti v. U.S., 145 S Ct 797 [2025],

establishing that inaction causing harm creates the same exposure as affirmative conduct:

When a young child starves to death after his parent refuse to give him food,
that harm would not have occurred but for the parents’ choice. Both in the
eyes of the law and as a practical matter, the parents’ conduct is no less a
cause of the child’s death than if the parents had poisoned him.

***

It is perfectly natural to say that a person makes use of something by

deliberate inaction. A car owner, for example, can use the rain to wash his
vehicle simply by leaving it parked in the street. And, a fugitive can use the
cover of darkness to hide by lying still at night. In the same way, a mother
who purposely kills her child by declining to intervene when the child finds
bleach and starts drinking it makes use of the bleach’s poisonous properties
to accomplish her unlawful end. And, a husband who abandons his wife to
die in the cold uses the forces of the elements to cause her death.

Id. at 807-08. The Murdochs, the Board, and the Audit Committee had the ability and responsibility

to stop the Campaign but chose not to intervene. Their inaction caused the Publications as surely

as the mother who allows her child to drink bleach.

Third, Fox Corp, through Rupert and Lachlan, bears responsibility for the Campaign and

Publications through their delegation of day-to-day responsibilities to Scott. The Murdochs

acknowledge working through Scott, Lachlan pointing to her as responsible for Fox News’s daily

operations. (¶1196-1202,1206-07,1211.) And contemporaneous documents show how both

Murdochs worked through Scott to implement their directions. (¶1205-14.) Their decision to

delegate authority to Scott (and other executives at Fox News) puts them and Fox Corp on the

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hook for the Publications. Rupert and Lachlan can entrust Fox News management with broad

discretion over publication decisions—if that is how they choose to run the business—but they

and Fox Corp remain responsible for the publications. (¶1196-1202.) The New York Court of

Appeals decided as much more than a century ago in Crane v. Bennett, 177 NY 106 [1904].

In Crane, the court addressed an “action [ ] for libel…based upon four articles published

in the New York Herald, a newspaper owned by the defendant who resides in France but whose

paper is published in the city of New York.” Crane, 177 NY at 108. The newspaper’s “management

was confided solely to persons in [the owner’s] employ who had practical control of the entire

business,” and like Fox Corp, the owner argued “the acts complained of were performed in his

absence by his manager and employees.” Id. at 109. The Court of Appeals rejected this, holding

“the proprietor of a newspaper is responsible for all that appears in its columns, although the

publication may have been made in his absence and without his knowledge.” Id. The owner’s

“liability is not upon the ground of his being the publisher, but because he is responsible for the

acts of the actual publisher.” Id. This settled precedent applies to the Murdochs’ delegation to Scott,

establishing that Fox Corp remains responsible for the Publications regardless of who executed

the daily publishing decisions.

V. Smartmatic is entitled to summary judgment on actual malice.

A plaintiff establishes actual malice by showing the defendant acted with “knowledge that

[the statements and implications] were false or with reckless disregard of whether [they] were false

or not.” Anderson v. Liberty Lobby, Inc., 477 US 242, 244 [1986]. Reckless disregard means the

defendant “made the false publication[s] with a high degree of awareness of…probable falsity…or

must have entertained serious doubts as to the truth of [their] publication.” Prozeralik, 82 NY2d

at 474 [1993]. Since confessions are rare, courts have long recognized that “[t]he existence of

actual malice may be shown in many ways. As a general rule, any competent evidence, either direct

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or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction

may be shown. . .” Herbert v. Lando, 441 US 153, 164 n.12 [1979]. Here, the undisputed direct

and circumstantial evidence shows the Fox Defendants acted with actual malice from the

boardroom to the broadcast booth.

A. Nearly everyone responsible acted with actual malice.

To obtain summary judgment, Smartmatic must bring the “state of mind required for actual

malice…home to the persons in [Fox’s] organization having responsibility for the [Publications].”

New York Times Co. v. Sullivan, 376 US 254, 287 [1964]. This involves imputing their state of

mind to the corporation, as “the malice necessary to support [a defamation] action, if proved in the

agent, may be imputed to the corporation.” Lake Shore & M.S. Ry. Co. v. Prentice, 147 US 101,

109-110 [1893]. When an agent acting within their responsibilities has actual malice, the

corporation has actual malice. Sullivan, 376 US at 287; Prentice, 147 US at 109-110.

Recognizing that publications rarely involve just one person, courts examine the broad

group of people involved, including authors, editors, editorial directors, and bureau chiefs. See,

e.g., Sharon v. Time, Inc., 599 FSupp 538 [SDNY 1984]; New Testament Missionary Fellowship v.

E.P. Dutton & Co., 112 AD2d 55 [1985]; Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 US

657 [1989]; Curtis Publishing Co. v. Butts, 388 U.S. 130 [1967]. For television broadcasts, the

“person(s) responsible” can include both on-air commentators and “the persons (other than the

commentators) within the [news] organization who were responsible for the broadcast decisions.”

Dershowitz v. Cable News Network, Inc., 541 FSupp3d 1354, 1367-68 [SD Fla. 2021]. If multiple

people share responsibility for a publication and just one of them has actual malice, that person’s

actual malice is imputed to the corporation. See 1 Law of Defamation § 3:42.50 [2d ed. 2024] (“in

any given case multiple persons may be among those to whom actual malice may be attributed”).

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The undisputed evidence establishes that nearly everyone responsible for the Publications

acted with actual malice across multiple levels of Fox’s corporate structure. (¶706-1170, 1242-

1605.) First, the hosts and producers of the shows at issue (the “Show Runners”) created the

Publications. Infra at 135. They acted with actual malice. Second, executives with Fox News and

Fox Business directly oversaw the shows and supervised the Show Runners on a day-to-day basis.

Infra at 133-35. They acted with actual malice. Third, Fox News Media executives promoted,

oversaw, and authorized the Publications. Infra at 134. They acted with actual malice. Fourth, Fox

Corp executives and directors authorized and acquiesced to the Publications. Infra at 133-34, 49-

52. They acted with actual malice. Appendix 7 summarizes the categories of actual malice

evidence for each of these individuals and demonstrates how it is brought home to each one.

1. Fox’s universal knowledge that the Lies had no support.

Nearly every individual responsible for the Publications admitted they were unaware of

any evidence to support the Fraud Lie and Other Lies. Courts have consistently found actual malice

when defendants publish false statements “without any basis or source whatsoever,” Prozeralik v.

Cap. Cities Commc’ns, Inc., 82 NY2d at 475, and with “no reliable evidence or information

supporting” the false statements, Crime Victims Ctr., Inc. v. Logue, 181 AD3d 556, 557 [2d Dept

2020]. See also Collins v. Troy Publ’g Co. Inc., 213 AD2d 879, 881 [3d Dept 1995] (defendants

relied only on confidential sources without attempting to verify allegations through objective

sources); Scacchetti v. Gannett Co., Inc., 123 AD2d 497, 498 [4th Dept 1986] (defendant relied

only on her own recollection without seeking confirmation from another source before

misidentifying plaintiff); Bruno v. New York News, Inc., 89 AD2d 260, 268 [3d Dept 1982]

(reporters’ affidavits failed to identify any sources to support the challenged statements).

Show Runners. The show hosts and producers uniformly admitted they never had support

for the Fraud Lie or Other Lies, despite repeatedly disseminating these claims. (¶843-967.)

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Lou Dobbs Tonight. Lou Dobbs testified he never saw any evidence supporting the

accusation of widespread election fraud involving voting machines (the Fraud Lie), even a month

after his last show featuring these claims. (¶686,692,693,843-919.) Dobbs likewise never saw

evidence supporting the Use Lie, Dominion Lie, Overseas Lie, Design Lie, or Dictator Lie.

(¶695,762,843-919.) This lack of evidence was true from his first Publication on November 12

through his last on December 12. (¶843-919.) Dobbs knew in November and December that

Smartmatic was only present in LA County, rendering all accusations implausible. (¶762,846.) His

main producer, Jeff Field, similarly admitted never seeing support for any accusations about

Smartmatic. (Id. ¶920-929.)

Sunday Mornings Futures and Mornings with Maria. Maria Bartiromo admitted that

throughout her shows, she was unaware of any evidence that Smartmatic had rigged the 2020

election or voting machines had done so. (¶936,937.) She likewise admitted never seeing support

for the Use Lie, Dominion Lie, Alteration Lie, and Overseas Lie. (¶938-941.) Producer Patrick

Ignozzi (Mornings with Maria) admitted never seeing evidence to support the Fraud Lie or

Overseas Lie, nor any evidence from Giuliani and Powell to support their claims. (¶944-946.)

Producer Abby Grossberg (Sunday Mornings Futures) admitted being unaware of evidence that

voting machines, much less Smartmatic machines, switched votes (the Alteration Lie). (¶943.) She

never received evidence supporting the claims made by Giuliani and Powell. (¶942.)

Justice with Judge Jeanine. Jeanine Pirro and her producer (Jerry Andrews) admitted never

seeing support for claims that Smartmatic had rigged the 2020 election during her shows. (Id.

¶947-949.) Both confirmed they had seen no evidence that Smartmatic machines had switched or

altered votes. (¶693,778,779,947.) Pirro confessed to doing nothing to verify the claims, while

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Andrews admitted he never believed Giuliani and Powell had evidence supporting the claims.

(¶948,949.)

Hannity. Sean Hannity admitted he never believed the claims about Smartmatic and voting

machines for “one second.” (¶788b,1383.) He never saw any evidence supporting the Fraud Lie or

Alteration Lie, despite he and his team looking hard for such evidence. (¶689d,950-961, 1108-

1120.) His producers shared these concerns: Tiffany Fazio acknowledged worrying about the

claims because the allegations were “so slim.” (¶793.) Ron Mitchell thought the claims were

insane “comic book stuff.” (¶791.) He never believed voting machines, including Smartmatic’s,

were used to rig the 2020 election. (¶685b,695.) Mitchell privately mocked the claims. (¶789-792.)

Watters’ World and Ingraham Angle. Both hosts admitted having no support for what was

said about Smartmatic during their Publications. Jesse Watters thought the claims against

Smartmatic were baseless. (¶787,1045.) He knew Smartmatic did not steal the 2020 election.

(¶785-86.) He readily admitted being unaware of any evidence supporting the Fraud Lie or

Alteration Lie. (¶693,962.) Laura Ingraham likewise admitted having no basis to believe

Smartmatic had rigged the election, considering claims about widespread election fraud “fanciful.”

(¶795-799.) Consistent with these views, she was unaware of evidence that Smartmatic or voting

machines had rigged the election. (¶795-799.)

Channel/Network Executives. Executives for both Fox News and Fox Business were

uniform and unanimous on the lack of support for the Fraud Lie and Other Lies. (¶828-842.) Fox

News Channel. Meade Cooper, Executive VP for Primetime Programming, never believed there

was any widespread election fraud and acknowledged never seeing evidence supporting the Fraud

Lie, Alteration Lie, Overseas Lie, Design Lie, or Dictator Lie. (¶682,685,686,690,693,697,700,

703,704,752,833.) From November 6 onward, David Clark, did not believe that the election had

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been stolen from President Trump. (¶753-755,1080,1452.) Lowell testified that Fox, not just him

but Fox, did not have credible evidence of massive election fraud or Powell’s alleged evidence.

(¶678,705,836,837,1441,1444.)

Fox Business Network. Lauren Petterson, President, does not believe there had been

widespread voter fraud and admitted to never seeing evidence to support the Fraud Lie or

Alteration Lie. (¶682,687,688,689,691,759,839.) Gary Schreier, Senior VP of Programming,

admitted that he had no basis to believe that Smartmatic rigged the election—the Fraud Lie.

(¶687,688,840-842.) Nor any basis to believe the Dominion Lie or Overseas Lie. (¶699,702.) He

has not seen any evidence to support the claims Giuliani and Powell made during the Publications.

(¶687,688.)

Fox News Media Executives. The most senior Fox News Media executives, overseeing

both Fox News and Fox Business, admitted to knowing there was no support for claims made

during the Publications. CEO Suzanne Scott acknowledged being unaware, at the time, of any

support for the Fraud Lie, Dominion Lie, Alteration Lie, Overseas Lie, and Design Lie.

(¶682,686,691,694,696,699,702,704.) Her lieutenant, Jay Wallace (President and Executive

Editor), never saw evidence of widespread election fraud or that Smartmatic technology was

widely used during the 2020 election. (¶683,689,692,696-97.) Nor did he ever see evidence from

Giuliani and Powell to support their claims. (¶686-88.) Irena Briganti, Senior EVP of Corporate

Communications, testified similarly. She acknowledged she never saw evidence that Smartmatic

or voting machines rigged the 2020 election, despite knowing Fox News was repeatedly publishing

such accusations. (¶682,687,688,691,1435,1479,1482,1490.) She never believed the Dominion

Lie and never saw any evidence of it. (¶694,696.)

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Fox Corp Executives and Directors. Those with ultimate control admitted having no

support for the claims made in the Publications. Rupert and Lachlan testified they were never

aware of any evidence supporting claims that Smartmatic or voting machines rigged the 2020

election. (¶680,681,683,684,692,693,812-820.) Rupert knew the claim was baseless. (¶681,706-

711,811.) So did Lachlan. (¶712-714.) Both conceded never being aware of support for the Other

Lies spread during the Campaign, including the Dominion Lie, Alteration Lie, Design Lie and

Dictator Lie. (¶690-95,697-98,701-704.) Rupert acknowledged no one at Fox told him they had

seen evidence that voting machines switched votes. (¶812-813.) Lachlan acknowledged more: no

one at Fox told him they even believed in the Fraud Lie or the Other Lies. (¶820.)

Other Fox Corp executives testified consistently. Viet Dinh, the Chief Legal Officer,

admitted to never seeing support for any Lies. (¶683,698,700,701,703,1070.) Dinh never believed

the Fraud Lie. (Id. ¶690,694,715-16.) Raj Shah, in charge of Brand Protection, which provided

backlash updates to Lachlan and Dinh, admitted to never believing the claims or seeing evidence

of widespread election fraud or vote switching. (¶52,238,691,693,722-724.) Director Ryan, who

encouraged the Murdochs to stop election fraud coverage, readily acknowledged there was no

evidence to support the Fraud Lie, and he never believed it. (¶686,725-730.) The same was true

with the Alteration Lie. (¶685,692,693.) Director Dias, who confronted the Murdochs after January

6, readily acknowledged the absence of evidence of voting machines switching votes and never

believed there was widespread election fraud. (¶731-733.)

***

This systematic, organization-wide knowledge of falsity distinguishes this case from a

typical defamation claim and establishes actual malice as a matter of law, not a factual dispute for

a jury. It goes beyond circumstantial evidence to direct admissions of knowledge. From show hosts

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and producers to executives up through leadership, and even the Murdochs themselves, every

person with responsibility for the Publications admitted under oath they never saw evidence

supporting the Lies and often disbelieved them. Despite this universal knowledge, the Fox

Defendants continued the Campaign for a month. This was not the error of a wayward employee

or show—it was a calculated corporate decision that flowed from the very top of the organization.

2. Fox decision-makers and show runners possessed contradictory

information and disregarded it.

Nearly every individual responsible for the Publications possessed accurate information

from a variety of sources contradicting the Fraud and Other Lies. Courts consistently recognize

possession of contradictory information as evidence of actual malice. See, e.g., Bruno at 268

(actual malice where reporters were likely aware of a report negating allegations); Palin v. New

York Times Co., 940 F3d 804, 815 [2d Cir. 2019] (same, where article hyperlinked to contradicting

information about plaintiff); Dalbec v. Gentleman’s Companion, Inc., 828 F2d 921, 927 [2d Cir.

1987] (same, where investigation uncovered facts contradicting publication); Guccione v. Flynt,

618 FSupp 164, 166 [SDNY 1985] (same, where prior litigation evidence contradicted statements).

At Fox, countless individuals throughout the organization received multiple sources debunking the

Lies before and during the Campaign.

Show Runners. The hosts and producers received extensive information contradicting the

Fraud and Other Lies before and during the Publications, most prominently through Setting the

Record Straight (“STRS”) communications from Dominion. Supra at 39-41.

Lou Dobbs Tonight. Dobbs received STRS communications on November 13, 14, 16, 19,

25, 26, 29 and December 5. (¶991.) Producer Field received STRS communications almost daily

from November 12-26, plus November 29, November 30, December 3, December 5, and

December 17. (¶991.) Producers Alex Hooper and John Fawcett received STRS communications

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on November 12-13. (¶991.) These communications informed them, among other things, there was

no evidence of software issues, vote switching, a relationship between Smartmatic and Dominion,

or widespread fraud. See Appendix 8.13

Beyond the STRS communications, Dobbs and his team received contradictory

information from multiple sources. On November 5, Dobbs received a Fox News article where a

Republican Congressman called election fraud claims “debunked misinformation.” (¶1035.) On

November 12, Dobbs and his producers received a WSJ article by a prominent Republican

strategist concluding there was no evidence supporting election fraud claims. (¶1353.) On the same

day, Dobbs and his producers received CISA’s official statement indicating no evidence of

widespread vote manipulation and highlighting pre-election security measures. (¶1354.) On

November 16, Dobbs and Hooper learned from Smartmatic that its machines were only used in

LA County, rendering participation in widespread fraud impossible. (¶1245,1246.)

Dobbs’ producers received even more contradictory information. On November 11, Hooper

received a New York Times article quoting an election security expert (Eddie Perez) calling the

Fraud Lie “disinformation.” (¶1435(a).) On November 20, Field and Hooper received an internal

email confirming the absence of widespread fraud in Michigan and Georgia based on state

officials’ statements. (¶1360.) On November 24, Field received articles from conservative leaders

concluding no evidence showed fraud impacting election results. (¶991.) On November 29, Field

and Hooper learned the then-head of CISA had announced on 60 Minutes there was no evidence

of compromised voting machines. (¶1032.)

Appendix 8 identifies recipients of each STRS communication and information provided by each
13

STRS communication.

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Sunday Mornings Futures and Mornings with Maria. Bartiromo received fifteen STRS

communications between November 13 and December 5, specifically on: November 13, 14, 16,

17, 18, 19, 20, 23, 24, 25 (twice), 26, 29, 30 and December 3, 5, 14, 17, and 18. (¶991,1001,1006.)

Her Sunday Mornings Futures producer Grossberg also received STRS communications on

November 13, 14, 16, 17, 18, 19, 20, 23, 24, 25, 26, 29, 30 and December 3, 5, and 14. (¶991,1008.)

These communications informed them, among other things, there was no evidence of software

issues, vote switching, a relationship between Smartmatic and Dominion, or widespread fraud.

(¶989,990.) See Appendix 8.

Beyond the STRS communications, Bartiromo and Grossberg possessed a treasure trove

of information contradicting the Fraud and Other Lies. On November 7, former Republican House

Minority Leader Kevin McCarthy told Bartiromo he did not think there was massive fraud.

(¶1037,1038.) She shared this with Grossberg. (¶766.) On November 12, Bartiromo and Grossberg

received a WSJ article by a prominent Republican strategist concluding there was no evidence

supported election fraud. (¶1353.) On the same day, they received CISA’s official statement

indicating no evidence of widespread vote manipulation and highlighting pre-election security

measures. (¶1354.) On November 15-16, Tony Fratto contacted Bartiromo multiple times to

remind her there was no evidence of voting machine fraud, no relationship between Smartmatic

and Dominion, and Dominion did not use Smartmatic technology. (¶1010-1014.) A Republican

political operative, Arthur Schwartz, similarly communicated with Bartiromo, who understood he

considered Powell’s voting machine allegations “pure nonsense.” (¶1041.) On November 20,

Bartiromo and Grossberg received an internal email confirming the absence of widespread fraud

in Michigan and Georgia based on state officials’ statements. (¶1360.)

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Mornings with Maria Producer Ignozzi likewise possessed information from internal and

external sources contradicting the claims made during the show. On November 5, Ignozzi learned

that Twitter had flagged Bartiromo’s postings about election fraud as misinformation. (¶761.) That

same day, he received a Mediaite article discussing Bartiromo pushing debunked conspiracy

theories about the 2020 election. (¶761.) On November 13, he read a WSJ article highlighting that

President Trump’s lawyers were not pushing “fraud” claims in legal proceedings, contrary to what

Bartiromo and guests were claiming on her show. (¶1333.) By November 13, he was aware that

the WSJ, The NYT, and Washington Post had all debunked claims about widespread election fraud.

(¶1333,1334.) On November 19, he received another WSJ article concluding there was no evidence

of widespread election fraud. (Id. ¶1054.)

Justice with Judge Jeannine. Before her first show on November 14, Pirro knew from

multiple sources that the claims she would ultimately make were false. On November 5, Pirro

received a Fox News article where a Republican Congressman called the election fraud claims

“debunked misinformation.” (¶1035.) On November 13, she received a STRS communication

explaining there were no software issues during the 2020 election and no votes switched by voting

machines. (¶991,1003,1005.) The next day, from the Brainroom, Pirro learned information

debunking election fraud claims. (¶976.) She made those claims on her shows nonetheless.

Her producer, Andrews, received STRS communications on November 13, 14, 16, 19, 25,

26, 29 and December 5. (¶989-991,1004-1005.) These informed him there was no evidence of

software issues, vote switching, a relationship between Smartmatic and Dominion, or widespread

fraud. See Appendix 8. On November 12, he received the WSJ article and CISA statement

indicating no evidence of widespread fraud and explaining security measures preventing vote

switching. (¶1353,1354.) On November 13, he received research from the Brainroom with fact

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checks on the accusations about Dominion and vote switching, which notably concluded: “[There’s

no evidence of widespread fraud.” (¶974.) On November 20, he received an email about no

evidence of fraud in Michigan and Georgia. (¶1360.) On November 21, Andrews characterized

Pirro’s monologue as rife with “conspiracy,” “bs” and “crazy.” (¶1363.)

Hannity. Hannity and his producers (Fazio and Mitchell) were inundated with, among other

things, STRS communications debunking the claims. Prior to November 19, they received STRS

communications on: November 12 (Fazio), November 13 (Mitchell), November 16 (Hannity and

Fazio), November 17 (Hannity), November 18 (Hannity), and November 19 (Hannity). (¶991.)

These informed them there was no evidence of software issues, vote switching, relationship

between Smartmatic and Dominion, or widespread fraud. See Appendix 8.

They received additional contradictory information from other sources before the

November 19 show. On November 12, Hannity received the CISA statement indicating no

evidence of widespread election fraud. (¶1369.) That same day, Fazio and Mitchell received an

internal email with the CISA statement and a summary of the certification measures for voting

machines that prevent fraud. (¶991, 994a, 1000a, 1009.) And, Mitchell received the WSJ article by

a prominent Republican strategist concluding no evidence supporting the election fraud claims.

(¶1353.) On November 13, Hannity learned that his colleague, Bryan Llenas, had done a show

highlighting the absence of fraud. (¶1370.) Nonetheless, on November 19, Hannity had Giuliani

on his show who spread disinformation about Smartmatic.

Watters’ World. Before his November 21 show, Watters received several communications

contradicting the Fraud Lie he would promote. On November 5, he received a Fox News article

quoting a prominent Republican congressman debunking election fraud claims. (¶1035.) On

November 12, he received a WSJ article quoting a prominent Republican strategist and one of

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CISA’s statements about the 2020 election, indicating no evidence of fraud. (¶1353.) On November

13, 14, 16 and 19, he received STRS communications debunking fraud claims. (¶991.) All these

communications told Watters there were no software issues on election night, no evidence of votes

being switched by machines, and no relationship between Smartmatic and Dominion. See

Appendix 8. On November 20, Watters’ team determined Powell’s claims were “UNVERIFIED.”

(¶1045-1047.) Nonetheless, on November 20, Watters pushed the Fraud Lie with Dobbs on his

show.

Channel/Network Executives. These executives received many of the same

communications as Show Runners, plus additional information. Executives for Fox News Channel

(Cooper and Lowell) and Fox Business Network (Petterson and Schreier) received STRS

communications on November 13, 14, 16, 19, 25, 26, 29 and December 5. (¶991,1002.) Clark

received the communications on November 13 and 14. (Id.) These informed them there was no

evidence of software issues, vote switching, a relationship between Smartmatic and Dominion, or

widespread fraud, effectively debunking the Fraud Lie, the Dominion Lie, and the Alteration Lie

for the executives. See Appendix 8. By November 14, Clark was so familiar with these STRS

communications, when forwarded one, he remarked, “Oh, I have it tattooed on my body at this

point. I woke up after too much vodka and there it was!” (¶988a, 996-997.)

Fox News Channel. Cooper, Clark and Lowell received numerous contradictory

communications beyond the STRSs. On November 5, Lowell learned Republican Congressman

Kinzinger had called election fraud “debunked misinformation.” (¶1035.) On November 12, all

learned Karl Rove had highlighted the lack of evidence for widespread election fraud. (¶1353.) On

the same day, all also learned about CISA’s statement discussing the absence of fraud and

certification testing that prevented fraud. (¶991,1029-1030.) On November 16, Cooper received

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an email from Fratto debunking the Fraud Lie and Dominion Lie. (¶991, 998.) On November 17,

Clark received an AP article debunking election fraud claims. (¶1455.) On November 20, Cooper

and Clark received an internal Fox email memorializing no fraud in Georgia and Michigan.

(¶1360.) On November 21, Cooper and Lowell received the Brainroom’s finding that Smartmatic

only provided technology in LA County. (¶981.) On November 29, Cooper learned that the head

of CISA told 60 Minutes there was no evidence of widespread fraud. (Id. ¶1493.)

Fox Business Network. Petterson and Schreier also received significant contradictory

information. On November 5, Petterson received the Fox News article containing Republican

Congressmen Kinzinger’s comments. (¶1035.) On November 5 and 6, Schreier learned that

Bartiromo had been called out for pushing debunked claims and “crazy wrong shit.” (¶1090.)

Petterson learned the same thing. (¶1090a,1475.) On November 7, both received a New York Post

article calling the election fraud claims “baseless” and suggesting Giuliani should not be on

television. (¶1049,1050,1478.) On November 12, both received the WSJ article and CISA

statement indicating no evidence backed the election fraud claims. (¶991,1486.) Both knew

Bartiromo and Dobbs were all-in on mass voter fraud. (¶1485.) On November 14, Schreier learned

Bartiromo had been described as a “conspiracy theorist.” (¶453,1487.) On November 16 and 24,

Wallace forwarded Petterson an email from Fratto calling out the lies on Lou Dobbs Tonight.

(¶1489,1024.) On November 17, Schreier received an email from Briganti noting that the

Associated Press had debunked claims had been amplified on Dobbs and Bartiromo’s shows. (Id.

¶1490.) On November 20, both were informed that Georgia and Michigan found no widespread

fraud. (¶1360-1361.) On November 21, Schreier learned from the Brainroom that Smartmatic only

provided technology to LA County. (¶981.) On November 29, both learned the head of CISA

announced voting machines were not compromised. (¶991.)

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Fox News Media Executives. Scott, Wallace and Briganti received extensive

communications contradicting the Fraud Lie and Other Lies. Like others, all three received STRS

communications on November 13, 14, 16, 19, 25, 26, 29 and December 5. (¶989-991,993-995.)

These informed them there was no evidence of software issues, vote switching, a relationship

between Smartmatic and Dominion, or widespread fraud, and that Fox News was publishing Lies.

See Appendix 8.

Beyond the STRS communications, they received numerous additional pieces of

contradictory information. On November 7, Scott and Wallace received a NY Post article calling

election fraud claims “baseless” and “dangerous” and calling for Guliani to get off TV. (¶1049.)

On November 12, Briganti learned election security experts were calling the election fraud claims

“disinformation.” (¶1435a.) On November 12, all received Karl Rove’s WSJ article discussing the

absence of widespread fraud evidence and CISA statement confirming the same. (¶991.) On

November 16, Scott and Wallace were contacted multiple times by Fratto calling Fox out for

pushing disinformation about the Fraud Lie and Dominion Lie. (¶1016-18,1418-19,1601.) Fratto’s

message to them was clear—“More fucking out and [right] lies.” (¶1018a.) This was discussed

internally among the executives. (¶1018b,1024.) On November 21, Wallace learned from the

Brainroom that Smartmatic technology was only used in LA County. (¶981-985,1424.) On

November 24, Wallace learned from Fratto that Fox was still pushing disinformation about the

Fraud Lie. (¶1024,1427,1600.) Again, Fratto was clear: “You guys know this is all bullshit.”

(¶1024,1600.) But it was allowed to continue.

***

The above establishes a pattern that conclusively establishes actual malice. This was not a

single communication that might have been missed, but a constant stream of contradictory

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information from official government sources, Fox’s own internal research, Republicans, major

news organizations, and direct fact-checking communications and interventions by others. There

was systematic knowledge at every level, which accumulated over time and completely refuted

the Lies being told about Smartmatic. This goes beyond reckless disregard for the truth to knowing

falsity. The sheer volume of contradictory information makes this case analogous to Prozeralik,

where the court found actual malice where defendants published statements “without any basis or

source whatsoever.” 82 NY2d at 475.

3. Fox knowingly relied on sources it internally deemed to lack credibility.

Nearly everyone responsible for the Publications questioned or had obvious reasons to

question the credibility of Giuliani and Powell, the two guests Fox repeatedly featured. The

“dubious nature of [defendant’s] sources” can be the best evidence of actual malice. Celle 209 F3d

163, 183 [2d Cir. 2000]; see also St. Amant v. Thompson, 390 US 727, 732 [1968] (actual malice

exists “where there are obvious reasons [for the defendant] to doubt the veracity of the informant

or the accuracy of his reports”); Harte-Hanks, 491 US at 681-82 (same, where the source used was

contradicted by numerous other witnesses and defendant did not take further steps to investigate

the veracity of the source despite clear reasons to do so). The evidence reveals that Fox personnel

at every level privately expressed contempt and disbelief toward the very sources whose claims

they continued to publish.

Show Runners. The Show Runners had no reason to believe Giuliani and Powell, and

privately, they made negative assessments of them. (¶1092-1094,1105-1107.)

Lou Dobbs Tonight. Dobbs and his producers admitted Giuliani never provided any

supporting evidence. (¶843-894,914-935.) Field knew his claims had been described as “loopy”

and “crazy.” (¶1040.) Dobbs’ producers felt similarly about Powell. They admitted Powell never

provided any supporting evidence for the Lies. (¶843-847,895-913,915-935.) By November 16,

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they were calling her “wacky” and suggesting she must be on “LSD, cocaine, heroin and shrooms.”

(¶1092.) By November 20, they knew Tucker Carlson had called “bullshit” on Powell’s claims,

and by November 22, so had the White House. (¶1094,1096.) By November 22, they knew she

had gotten ahead of herself. (¶1095,1096.) And, by November 27, they knew her lawsuit was

“complete bs.” (¶1097.)

Sunday Mornings Futures and Mornings with Maria. Bartiromo and her producers

admitted Giuliani never provided any supporting evidence. (¶936-946.) In addition to her producer

receiving contradictory information from Dominion before November 15, on November 15 and

16, Bartiromo learned from its spokesman (Tony Fratto) that Giuliani had lied during her show

and nothing he said was supported by evidence. (¶1001,1007-08,1010-1014,1019.) On November

15, she learned her colleague, Eric Shawn, had called Giuliani out for lying. (¶1044.) On

November 24, Bartiromo and producer Grossberg knew Giuliani’s claims were being described as

“loopy” and “crazy.” (¶1040.) Her other producer, Ignozzi, never believed Giuliani revealed

evidence to support his claims. (¶944-946.)

Bartiromo and her producers also admitted Powell never provided any supporting

evidence. (¶936-946.) On November 7, Bartiromo learned that Powell had been excluded from

White House meetings about election fraud claims. (¶1102.) On November 7, she and producer

Grossberg learned that Powell’s only identified source was “kooky,” “wacky,” and “inherently

unreliable.” (¶1101.) Bartiromo described the only so-called support Powell had sent her as “a

bunch of mish-mash.” (¶1101.) Then on November 15-16, she learned from Fratto that Powell’s

claims were unsubstantiated lies. (¶1010-1013,1019.) On November 20, a prominent Republican

told her Powell was “full of shit.” (¶1041.) And, on November 21, Fratto told Bartiromo again that

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Powell’s claims were “completely unsubstantiated.” (¶1023.) Producer Grossberg never believed

Powell revealed evidence to support her claims. (¶942.)

Justice with Judge Jeannine. Pirro admitted she never saw any evidence and, did nothing

to verify Giuliani and Powell’s claims. (¶947,1154.) Her producer (Andrews) never believed either

of them had evidence for their claims about the 2020 election being rigged. (¶948-949.) He

described Giuliani as an “imbecile” and knew Tucker Carlson called out Powell for not providing

supporting evidence. (¶1105,1361.) Andrews questioned Pirro’s accuracy and responsibility on her

shows, noting her tendency toward election fraud conspiracy theories, and had previously pushed

for pre-recording her shows rather than airing them live. (¶976-980,1355,1362-1364.)

Hannity. Giuliani appeared on Hannity on November 19. Before then, Hannity privately

described Giuliani as “going nuts” and “insane.” (¶1367,1368.) Hannity did not believe Giuliani

had support for his claims. (¶1371-1375.) Hannity admitted his team, for obvious reasons, had

concerns about Giuliani’s credibility. (¶1374,1378.) Producer Fazio resisted booking Giuliani prior

to November 19 because she thought he would say something “crazy.” (¶1115.) Ron Mitchell, in

texts with Hannity’s producers, used terms like “comic book stuff,” “more than fantastical,” and

“insane,” to describe Giliani and Powell’s November 19 press conference. (¶1388,1390.) Mitchell

knew Giuliani was spreading “ridiculous conspiracy” theories. (¶1387.) His claims were not

considered credible. (Id. ¶1390-1391.)

Ingraham Angle. Ingraham privately called Giuliani “such an idiot” and knew he had not

provided evidence for his claims. (¶1129.) She remarked that no one would work with him.

(¶1128.) Powell was a “complete nut” who made “wild allegations.” (¶803,1125.) And, like

Giuliani, she knew no one would work with Powell. (¶1128.)

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Channel Executives. The executives for Fox News Channel and Fox Business Network

had no more confidence in Giuliani and Powell than the Show Runners. Cooper, Clark, Petterson,

and Schreier admitted that Giuliani and Powell never provided any evidence to support any of their

claims. (¶833-842.) Cooper never believed that voting machines switched votes. (¶833.) Beyond

the lack of evidence, Petterson and Schreier generally considered Giuliani a “hand grenade with

the pin pulled.” (¶1088.) Both knew that the Murdoch-owned New York Post had called for getting

him “off” TV. (¶1049-1050.) As for Powell, they both knew she had been disavowed by the White

House. (¶1492.) And Schreier learned from an AP article that some of their claims had been

debunked. (¶1490.)

Fox News Media Executives. Scott and Wallace knew Giuliani lacked credibility.

(¶319,1064,1071-1072,1076.) Scott knew that Giuliani was promoting “terrible stuff” and

everything he said needed to be taken “with a grain of salt.” (¶319,1064.) Wallace knew that

Giuliani had been called out for lying on Fox programs and never provided evidence to support

his claims. (¶830,1017.) Briganti knew various news organizations were describing the claims as

“disinformation” and “debunked.” (¶1435.) Neither Wallace nor Briganti believed any evidence

was provided to support what he was saying about widespread election fraud. (¶830-832.)

They felt the same way about Powell. Wallace was informed that Powell was lying on Fox

programs on November 16 and November 24—her claims being described as “bullshit.”

(¶1016,1024.) Wallace conceded that Powell never provided any evidence to support her claims.

(¶830.) Briganti straight out admitted that she considered Powell’s claims “crazy.” (¶1075.) And

they knew Powell was disavowed by the Trump campaign on November 19. (¶1065,1077.)

Fox Corp Executives. Rupert, Lachlan and Dinh knew Giuliani and Powell lacked

credibility. Rupert described Giuliani’s claims as crazy and damaging and knew it was “bad” for

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him to be advising President Trump. (¶1057-1061,1064.) Rupert wanted the NY Post to send a

message to President Trump about getting Giuliani “off TV.” (Id. ¶1057.) They all knew Giuliani

never provided evidence to support his claims. (¶811-812,814-819,821-825.) No one at Fox ever

told them any evidence had been provided. (¶813,820.)

Powell was viewed just as poorly. Rupert called her a “would be lawyer” and thought she

was making wild assertions. (¶1062-1063.) Her claims were “stupid” and “damaging.” (¶1061.)

They knew Tucker Carlson had called Powell out for not providing any evidence. (¶1130c.) Dinh

admitted that Powell never showed any evidence. (¶1070) No one at Fox ever told them Powell

had provided any evidence or that they believed her. (¶813,820.) Raj Shah, another Fox Corp

executive, put it best when he described Giuliani and Powel’s claims as “so fucking cray,” “nuts,”

and “MIND BLOWINGLY NUTS.” (¶1067-1069.)

***

This case presents a rare situation where defendants continued to publish sources they

privately acknowledged were unreliable, as outlined in New Testament Missionary Fellowship v.

Dutton & Co., 112 AD2d 55, 57 [1st Dept 1985], where editors skeptical of sources’ “bizarre

theories” were found to have acted with actual malice. Ron Mitchell’s joke about Powell and

Giuliani revealing “SPECTRE” members perfectly illustrates how absurd these conspiracy claims

appeared to Fox. (¶791-792.) This mockery comparing the claims to a fictional criminal

organization from James Bond films shows Fox understood the claims about Smartmatic

resembled fictional villainy rather than credible allegations of election fraud—yet Fox still

broadcast them as legitimate news. The Supreme Court in Curtis Publishing, 388 US at 157,

similarly found actual malice where defendants relied on unreliable sources without “substantial

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independent support.” The Fox Defendants’ conduct goes beyond reckless disregard for the truth—

they knowingly amplified claims from sources they internally ridiculed and disbelieved.

4. Fox’s own admissions show they did not believe the Lies about
Smartmatic.

The U.S. Supreme Court long ago recognized that a “plaintiff will rarely be successful in

proving awareness of falsehood from the mouth of the defendant,” which is why courts allow

various direct and circumstantial evidence to establish actual malice. Herbert, 441 U.S. at 170.

But it can happen. Actual malice exists when defendants entertain “serious doubts as to the truth.”

Id. The admissions here go beyond “serious doubts.” Many individuals responsible for the

Publications admitted they did not believe the Fraud Lie and Other Lies.

During discovery, at deposition after deposition, these self-incriminating confessions came

from nearly every level in the chain of command. For example:

Fox Corp Executives and Directors

 Rupert Murdoch never believed the 2020 election had been stolen, there had been
widespread fraud, or there had been fraud using voting machines; and called the fraud
claims “bullshit” and “damaging” (¶681,684,707.) He did not believe any of the Lies.
(¶681,684,690,701,703,704.)

 Lachlan Murdoch believed Biden had legitimately won the 2020 election, expected
Trump would blame others for losing, and agreed he needed to stop with the stolen
election rhetoric. (¶679,713,714.)

 Viet Dinh did not believe any of the Lies and viewed them skeptically.
(¶683,687,694,701,703,704,715-721.)

 Raj Shah never believed Smartmatic or voting machines rigged the election or switched
votes, and called the claims “nuts” and “insane.” (¶72-724,1067-1069.)

 Paul Ryan never believed voting machines had switched votes, did not believe
widespread fraud occurred, and considered the claims to be “baseless.” (Id. ¶725-
730,1217.)

 Anne Dias did not believe widespread fraud occurred. (Id. ¶731-733.)

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Fox News Executives

 Suzanne Scott does not believe Smartmatic or voting machines rigged the 2020
election. (¶737,741-744.) She knew it was “hard to credibly cry foul everywhere” and,
by November 7, knew the claims would not change the outcome of the election.
(¶734,1415,1416.) She agreed the claims were “terrible stuff” and “damaging.”
(¶1064.) She does not believe the Lies. (¶737-744.)

 Jay Wallace never believed Smartmatic or voting machines rigged the 2020 election.
(¶745.) He did not believe the Other Lies. (¶746.)

 Irena Briganti does not believe Smartmatic or voting machines rigged the 2020
election. (¶687,747.) She does not believe the Other Lies. (¶748-751.)

 Meade Cooper did not believe the 2020 election was stolen through widespread fraud.
(¶752.) She did not believe the Lies. (¶690,694,697,702,703,704,752.)

 David Clark did not believe there had been widespread election fraud. (¶753.) He did
not believe the Dominion Lie, the Alteration Lie, or the Overseas Lie. (¶691,699,702.)

 Lauren Petterson does not believe the 2020 election had been stolen from President
Trump through widespread fraud. (¶760.) She also does not believe the Other Lies.
(¶689,691,699,702,759.)

 Gary Schreier had no basis to believe Smartmatic had rigged the 2020 election. (¶840-
841.) He does not believe the Dominion or the Alteration Lie. (¶691,702.)

Hosts

 Lou Dobbs knew, in November and December 2020, Smartmatic only provided
technology in LA County. (¶762.) He also knew he had not seen any evidence to
support the Lies. (¶843-919.)

 Maria Bartiromo has never seen evidence Smartmatic or voting machines rigged the
2020 election. (¶936-941.)

 Jeanine Pirro does not believe there was widespread fraud during the 2020 election and
agrees the election was “free and fair.” (¶680,704.) She does not believe Smartmatic
rigged the election and does not believe the Lies. (¶691,696,697,699,704,769-773.)

 Sean Hannity did not believe “for one second” the claims about the 2020 election being
stolen or rigged by voting machines. (¶1383.) He also did not believe there was
widespread fraud. (¶1383.)

 Jesse Watters described the claims about Smartmatic as “not something” he bought
into. (¶786.) He never bought into the Alteration Lie. (¶786-787.)

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 Laura Ingraham did not think the voting machine claims were credible and decided not
to cover them on her show because they were baseless and fanciful. (¶794,796-805.)
She has no reason to believe Smartmatic had rigged the 2020 election. (¶795.)

Producers

 Jeff Field has not seen the evidence to support the Lies. (¶920-929.)

 Alex Hooper does not believe the election had been stolen from President Trump.
(¶763.)

 Abby Grossberg, by November 15, had “a lot of doubts” about the election being stolen
from Trump given Kevin McCarthy and other Republicans had stepped forward to say
it was not. (¶764,766.) By that time, she “was pretty sure it [machine fraud] didn’t exit.”
(¶765.)

 Patrick Ignozzi did not believe there had been widespread fraud. (¶767.) He did not
believe the Lies. (¶689,690,691,697,699,704,767,768.)

 Jerry Andrews did not believe there had been widespread fraud and thought Pirro was
a “reckless maniac” for promoting such claims. (¶779,1004.) He did not believe the
Lies. (¶777,778,780-782,784.)

 Ron Mitchell described the voting machine claims as “comic book stuff” and “insane.”
He never believed the Lies. (¶685,690,697,699,702,704,790-91.)

This case presents unprecedented evidence of actual malice—admissions of disbelief from dozens

of individuals across every level of Fox’s organization from the show runners to the Chairman

himself. No court has ever encountered such a mountain of confessions from those responsible for

publishing defamatory statements.

5. Fox’s avoidance strategy as to Smartmatic shows deliberate intent to

avoid the truth.

Nearly every individual responsible for the Publications purposefully avoided learning the

truth about Smartmatic by, among other things, failing to contact the company or check the

company’s website. A publisher “cannot ‘purposefully avoid’ the truth and then claim ignorance.”

Dominion, 293 A3d 1002, at 1043, quoting Sweeney v. Prisoners’ Legal Services of New York, Inc.,

84 NY2d 786, 787 [1995]. Reckless disregard can be established when a defendant’s failure to

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investigate “was a product of a deliberate decision not to acquire knowledge of facts that might

confirm the probable falsity” of the information published. Harte-Hanks, 491 US at 692. “If the

plaintiff offers some direct evidence that the statement was probably false, the Court can infer that

the defendant intended to avoid the truth.” Dominion, 2023 WL 2730567, at *1043. Purposeful

avoidance may also be found where the defendant “easily could have known [the truth] had they

not purposefully avoided publicly available knowledge.” Smartmatic, 213 A.D.2d at 513.

One of the most astonishing features of Fox’s Campaign is the purposeful avoidance of

truth regarding Smartmatic. Despite a month-long Campaign, only one person (a Dobbs producer

named Hooper) contacted Smartmatic. (¶1140-1147.) On November 16, Hooper emailed

Smartmatic and it immediately confirmed its role was limited to LA County in the 2020 election.

(¶1143-1145.) No one else at Fox contacted Smartmatic despite repeatedly featuring the company

in the Campaign. (¶1143.) Bartiromo particularly avoided reaching out even when given a specific

company contact while being informed the claims were lies. (¶1140,1146,1162.) Simultaneously,

the hosts regularly contacted their “sources,” making their failure to contact Smartmatic

conspicuous. (¶549-550,556,558,563.)

Fox’s experienced news professionals understood the cardinal rule of reporting—

contacting the subject of criminal accusations—yet neglected to do so, even as contradictory

information circulated within Fox. (Supra at 39-44 ¶1589,1140-1143,1182-1183,968-1056.) This

represents more than investigative failure; it is purposeful avoidance. The simplest explanation is

often the answer: Fox strategically avoided confirming facts they already knew would undermine

their preferred narrative. The Fox Defendants did not contact Smartmatic because they already

knew the truth. They just did not care.

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B. The Fox Defendants cannot avoid this undisputed evidence of actual malice.

Smartmatic has brought actual malice home to nearly everyone involved, establishing

responsibility at every level of Fox’s corporate structure.

Fox Corp Executives and Directors. Rupert and Lachlan approved the “pivot” with Scott,

resulting in the Campaign and Publications. Supra at 10-17, 103-04. They were responsible for

overseeing Fox News, had authority over it, attended daily editorial meetings, and exercised

control through directives to Scott. (¶98,1184-1188,1196-1215,1549-1553,1559-1567.) As her

bosses, Rupert and Lachlan provided a check and balance against Scott’s decision-making for Fox

News. (¶1196-1202,1549-1553,1559-1564.) Directors Ryan and Dias also had responsibilities for

overseeing defamation risks at Fox News and attended the November board meeting before the

Campaign started. (¶66-69,1225,1227,1582.) These executives and directors, and others, could

have prevented the Campaign but chose not to. (¶1549-1574.) Instead, Rupert and Lachlan decided

it was good business to “respect the audience” by embracing the Fraud Lie and Other Lies. (¶1549-

1567.) And Dinh felt it was okay to let the Lies play out over the course of a month despite this

disbelief. (¶715-721,1664-1665,1573.)

Fox News Media Executives. Scott maintained “total editorial control over Fox News

programming” and was “ultimately responsible” for what Fox News published. (¶77-78.) She

served as the bridge between Fox Corp (Rupert and Lachlan) and Fox News. (¶73,74.) She could

have directed that Fox News not air election fraud claims or certain guests. (¶1506.) Wallace was

responsible for ensuring Fox News “has responsible and correct coverage” with “ultimate editorial

oversight over the content broadcasted on Fox News about the 2020 election.” (¶81-84,1509-

1510.) Both Scott and Wallace attended twice daily editorial meetings, where election fraud

coverage was discussed. (¶98,1412,1471.) They both weighed in on show guests.

(¶82,85,1508,1512.) Briganti monitored press coverage about Fox News and updated executives

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on important developments, knowing in November and December 2020 that press was reporting

Fox News was spreading election disinformation. (¶88-93,747-751,831-832,1075,1430-1436.)

Executives at Fox News Channel. Lowell was responsible for “editorial advisory” and

running daily editorial meetings. (¶97-98,1439.) On November 9, he announced the “pivot” and

flagged the need to cover the election fraud claims (and let them play out). (¶283,283(f),1437-

1444.) Cooper had editorial oversight of Justice with Judge Jeanine, Hannity, and The Ingraham

Angle with authority to direct coverage. (¶107-109,1460-1467.) Clark had similar editorial

oversight of Sunday Morning Futures and Justice with Judge Jeanine. (¶101-103,1342,1445-

1459.)

Executives at Fox Business Network. Petterson was responsible for all Fox Business shows

with ultimate decision-making authority over Mornings with Maria and Lou Dobbs Tonight.

(¶134-137.) Shows would have heeded her decisions. (¶1517-1523.) Schreier managed editorial

content and ensured shows, including Mornings with Maria and Lou Dobbs Tonight, were “getting

everything right.” (¶147-150,1524-1526,1294.)

Show Runners. Each host and their producers participated in creating and disseminating

their respective Publications, including social media. (¶26.) Dobbs and his producers (Field,

Hooper and Fawcett) selected topics and guests as well as scripting. (¶152,154,156,158,1242-

1293.) Bartiromo and her producers (Grossberg and Ignozzi) had the same responsibilities.

(¶166,172,175,1301-1339.) Pirro wrote her monologues and had guests on with supervision from

Andrews as to content. (¶1340-1366,1456.) Hannity decided to feature Giuliani, Watters decided

to have Dobbs appear, and Ingraham decided to make her social media posts.

(¶186,188,197,439,445,456,461,1380,1382,1405-1406,1409.)

***

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What stands out is the sheer breadth of complicity. From the Murdochs to the producers,

dozens of Fox personnel knew the Fraud Lie and Other Lies were false. Yet not one person with

authority stepped forward to stop the deliberate spread of disinformation. This was not one rogue

show. It was a calculated corporate decision to prioritize viewership over accuracy. This was all

done with not only apparent disregard for Fox’s standards of business conduct, but also the

foreseeable harm to Smartmatic. Those at Fox simply did not care.

VI. Smartmatic is entitled to summary judgment on fair reporting privilege.

Under New York’s fair reporting privilege, defamatory publications are protected when:

(1) the official proceeding being reported on existed at publication time; (2) an ordinary audience

would understand the publication concerned that proceeding; and (3) the publication was a

“substantially accurate” report of the official proceeding. See Dominion, 2021 WL 5984265 at *25-

*26. For judicial proceedings, courts determine privilege validity by comparing the publications

with the court filings allegedly being reported on. See Easton v. Pub. Citizens, Inc., 1991 WL

280688, at *2 [SDNY Dec. 26, 1991]. In Dominion, Fox’s fair reporting defense was rejected after

comparing their broadcasts with the proceedings Fox claimed to be reporting on. 2023 WL

2730567, at *39-40 (“Doubt regarding whether the report is ‘of’ a proceeding is resolved against

the privilege.”). Here, as shown in Appendix 9, the undisputed record establishes that none of these

requirements are satisfied.14

A. No proceedings existed mentioning Smartmatic when many Publications aired

and were republished.

To qualify for the fair reporting privilege, a publication must state “what took place” at the

official proceeding. See PJI 3:31 (“Defendant claims that its article is a fair and true report of [state

14
Appendix 9 identifies how each of the Publications fails one or more of the elements required
for the fair reporting privilege.

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name of judicial, legislative or other official body involved].”) (emphasis in original). This requires

that the proceeding must exist at the time of publication. New York’s Pattern Jury Instructions

explicitly state that the privilege extends to initiated judicial proceedings,” not potential future

lawsuits. See also Dominion, 2021 WL 5984265, at *25 (“New York decisions teach that a report

cannot be ‘of’ a proceeding unless the subject proceeding has been initiated and is pending or

ongoing.”). This timing requirement aligns with the privilege’s purpose—to protect publishers

acting as public agents reporting what others could witness were they to attend the proceedings.

Dibble, 142 AD2d at 968.

Smartmatic was never named as a defendant in any lawsuit. (¶509,511.) The Fox

Defendants have not identified any post-election complaint that names Smartmatic in substantive

allegations. The only pleading they have identified is an unsigned piece of paper filed as Exhibit

N to Plaintiffs’ Emergency Motion for Injunctive Relief in Wood v. Raffensperger, No. 20-cv-4651

(N.D. Ga.) and later cases. The Emergency Motion was filed on November 17 close to midnight.

(¶510.) Since the Wood motion was filed after several of the Publications, the fair reporting

privilege cannot apply to any publications before that date, as no official proceeding mentioning

Smartmatic existed at that time. This includes Publications 1 to 36. See Appendix 9.

B. The Publications failed to attribute statements to any official proceeding.

To qualify for the privilege, publishers must attribute statements to an official proceeding,

allowing audiences to understand they are merely summarizing the proceeding. Cholowsky v.

Civiletti, 69 AD3d 110, 114-15 [2d Dept 2009]; Smolla, 2 Law of Defamation §8:67.50. “This

requirement of attribution aligns with the function and rationale of the fair report privilege,

grounded in the notion that the ‘fair reporter’ is functioning as the neutral eyes and ears for the

public….” Id. The privilege does not apply when context makes it impossible for ordinary viewers

to determine if defendants are reporting on judicial proceedings. Cholowsky, 69 AD3d at 114-15;

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see also Khalil v. Fox Corp., 630 F Supp 3d at 580-82 (rejecting privilege, “at no point did Dobbs

or Powell attribute the statements about Khalil to an official investigation or a judicial

proceeding”); Corp. Training Unlimited, Inc. v. National Broadcasting Co., 868 F Supp 501, 509

[EDNY 1994] (same, broadcast did “not even purport to be a report of the” judicial proceeding).

Courts have also rejected the privilege when publications report on “underlying events”

rather than ongoing proceedings. See Dominion, 293 A3d 1002, 1060 (rejecting fair report

privilege because “most of the contested statements were made before any lawsuit had been filed

in a court”) (emphasis in original); Rivera v. Greenberg, 243 AD2d 697, 698 [2d Dept 1997] (same,

for allegations lawyers made at a press conference because they “were not a fair and true report of

[] judicial proceedings”); May v. Syracuse Newspapers, Inc., 250 AD 155, 158 [3d Dept 1937]

(same, because it “does not protect a newspaper when it states anticipated events to be facts”);

Abakporo v. Sahara Reporters, 2011 WL 4460547, at *9-11 [EDNY Sept. 26, 2011] (same, because

the article quoted a petition “used to institute an official proceeding,” but no “official proceeding”

existed).

None of the Publications attribute their false statements to any official proceeding or even

name such proceeding--unsurprisingly, as the Fox Hosts admitted they had no official proceeding

in mind. See Appendix 9. On 7 occasions, a Fox Host or guest indicates they are reading from or

paraphrasing an “affidavit” or “statement,” but they never indicate from what case. Id. Two courts

have already reviewed these same publications and concluded they failed to attribute defamatory

statements to “an official investigation or a judicial proceeding.” Dominion, 293 A3d at 1060

(agreeing with the Khalil court’s rejection of Fox’s fair report defense). Fox cannot retroactively

claim fair reporting protection for statements presented as original reporting or commentary. The

privilege only protects journalists when they inform viewers they are summarizing proceedings—

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something the Fox Hosts avoided doing.

C. The Publications were not “substantially accurate” reports of any proceeding.

The privilege only applies to “substantially accurate reporting” about official proceedings.

Martin v. Daily News L.P., 121 AD3d 90, 101 [1st Dept 2014]; Dominion, 293 A3d at 1060

(dismissing Fox’s fair report defense because it “only applies to substantially accurate reports

about proceedings, not the underlying facts”) (emphasis in original). It is unavailable if the

statements are not accurate accounts of official proceedings or if they, in context, “suggest[ ] more

serious conduct than that actually suggested in the official proceeding.” Karedes v. Ackerley Grp.,

Inc., 423 F3d 107, 119 [2d Cir. 2005]; accord Schaffran v. Press Publ. Co., 258 NY 207, 210

[1932] (rejecting fair reporting because the article “was not a fair and true report” of a judicial

proceeding); Martin, 121 AD3d at 101 (same, because the report: contained an “interpretation” of

a civil complaint; had “factual inaccuracies”; and withheld information from viewers to “create[]

a false impression”); Greenberg v. Spitzer, 155 AD3d 27, 48-50 [2d Dept 2017] (same, where the

statements “went beyond merely summarizing or restating” the judicial proceedings). Courts thus

reject this defense when publications contain interpretations, factual inaccuracies, or withhold

information creating false impressions, or when they go beyond summarizing proceedings.

None of the Publications here were “substantially accurate” reports of official proceedings.

See Appendix 9. First, most failed to disclose Smartmatic was not named as a defendant or in

substantive allegations. Second, they all failed to disclose the lawsuit made no substantive

allegation about Smartmatic machines switching votes during the 2020 election. Third, some

misled the audience by characterizing an unsigned, anonymous document as an “affidavit.”

(¶445,462,516,519.) This Court previously noted this was inaccurate because “the declarant

neither swears nor affirms the truth of the” statements made. NYSCEF Doc. No. 856 at 56 n. 31.

Fox did not merely report inaccurately on an existing proceeding—it fundamentally

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misrepresented the nature of the evidence itself to make it appear more credible.

CONCLUSION

The undisputed facts establish that each of the Fox Defendants should be held liable, as a

matter of law, for defamation and disparagement relating to their respective Publications. The

Court should, therefore, grant Smartmatic summary judgment on liability for defamation and

disparagement; specifically finding for Smartmatic on each of the elements of a defamation and

disparagement claim as well as the fair reporting privilege. The only issue left for the jury to decide

will be the amount of damages and punitive damages against each of the Fox Defendants.

Dated: New York, New York

April 30, 2025

BENESCH, FRIEDLANDER COPLAN & ARONOFF

LLP

s/ J. Erik Connolly
J. Erik Connolly (admitted pro hac vice)
Nicole E. Wrigley (admitted pro hac vice)
Benesch, Friedlander, Coplan & Aronoff LLP
71 South Wacker Drive, Suite 1600
Chicago, Illinois 60606
Telephone: 312.212.4949
Email: [email protected]
Email: [email protected]

Edward C. Wipper
Benesch, Friedlander, Coplan & Aronoff LLP
1155 Avenue of the Americas, 26th Floor
New York, New York 10036
Telephone: 646.593.7050
Email: [email protected]

Attorneys for the Plaintiffs

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CERTIFICATION OF COMPLIANCE

In accordance with Section 202.8-b of the Uniform Civil Rules for the Supreme Court &

the County Court, I certify that this foregoing memorandum of law contains 43,662 words,

exclusive of the Table of Contents, Table of Authorities, the cover page, and the signature block,

based on a Word Count check performed by our word processing system.

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