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Fox Corporation Tells Appeals Court It Shouldn’t Be Part Of Smartmatic’s Defamation Claim

Fox Corporation argued that it should be dismissed from Smartmatic‘s $2.7 billion lawsuit against Fox News, contending that a lower court judge erred in his assessment of the influence that Rupert and Lachlan Murdoch and other executives had over the editorial decisions of the news network.

In January, New York Judge David Cohen refused to dismiss Smartmatic’s claims against Fox News parent Fox Corporation, concluding that the voting systems company had “sufficiently alleged” that Rupert Murdoch and Lachlan Murdoch played “an affirmative role” in the broadcast of false claims of election rigging. The ruling was not a decision on whether the Smartmatic claims are true, just that the company had cleared the threshold in its lawsuit with enough factual allegations to be a triable issue.

But in an appeal brief to New York’s appellate division this week, Fox Corporation’s attorneys wrote that Cohen “concluded that Smartmatic adequately alleged vicarious liability because ‘Corp. wholly dominated News’ —a claim that Smartmatic did not even make in opposing Fox Corporation’s motion to dismiss.”

The Fox Corp. legal team also wrote that Cohen “did not identify any allegations that anyone at Fox Corporation played any direct role in the publishing of any of the specific statements Smartmatic challenges (again, because there were none).”

“The court instead conducted its analysis at a much higher level of generality, positing that Fox Corporation employees first directed ‘that News’s messaging pivot away from former president Donald Trump to Joe Biden,’ then ‘direct[ed] News to focus on election conspiracy stories, including those involving plaintiffs, in order to boost viewership and ratings’ after Fox News was criticized for its earlier coverage, then refused to ‘cease publication’ of ‘election conspiracy theories’ after ‘knowing that they were false,’ and ‘[i]nstead, ma[de] programming decisions to maximize the stories.’”

Read the Fox Corp. appeal brief.

Smartmatic filed a $2.7 billion lawsuit against Fox and some of its personalities in early 2021, alleging that they amplified false claims that the company was involved in rigging the results of the 2020 election.

In January, Cohen also refused to toss out Fox’s counterclaim against Smartmatic, which alleges that the damages that the voting systems company is “pure fiction,” and so great as to chill the network’s First Amendment rights. Smartmatic is appealing that decision.

In its appellate brief, Fox Corporation attorneys also wrote that there was a contradiction in Smartmatic’s claim that the Murdochs were so involved in programming decisions that they “would not allow an anchor or program to convey ‘positioning’ and ‘messaging’ that they did not support.” Fox’s attorneys noted that Smartmatic itself alleged that some anchors supported the election fraud claims of attorney Sidney Powell, a key figure advancing election fraud claims, while others did not.

“Smartmatic’s theory that top Fox Corporation executives implemented a ‘plan to rebuild the audience by embracing election fraud claims,’ but limited that plan to a small subset of Fox News hosts, while simultaneously allowing other, more prominent hosts to openly cast doubt on those claims contradicts itself.”

Last year, another election systems company, Dominion Voting Systems, settled its lawsuit against Fox for $787.5 million just as the case was about to go to trial. The Delaware judge in that case had ruled that Rupert and Lachlan Murdoch would have to testify.

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