Smartmatic’s complaint against OAN — the right-wing TV network competing with Fox News — was posted late Wednesday to the court’s docket. The case is in the U.S. District Court for the District of Columbia.
“The first time it happened could be a mistake,” the new suit says of claims of election fraud. “The second, third, fourth and fiftieth times it happened were intentional choices.”
The suit says OANN had “every opportunity” to do the right thing: “It could have reported the truth. Instead, OANN chose to do the wrong thing every time. It reported a lie.”
Before the 2020 election, Smartmatic’s business was valued in excess of $3 billion based on a modest multiplier, the suit says.
“Now … Smartmatic’s business is valued at less than $1 billion. The general and widespread publication and distribution of OANN’s defamatory statements about Smartmatic were a substantial cause of a portion of this business valuation decline.”
A representative from OAN did not immediately respond to a request for comment.
Smartmatic, whose U.S. headquarters is in Boca Raton, Florida, in February sued Fox News, its parent Fox Corp and several Fox hosts in a New York state court, alleging they falsely accused the company of helping rig the U.S. presidential election in favor of Democrat Joe Biden.
Other highlights of the latest suit, which demands a jury trial:
- Smartmatic provided election technology and services to Los Angeles County during the 2020 U.S. election. Its technology and software were used nowhere else in the country. And yet, OANN published report after report naming Smartmatic as one of the voting machine companies that had conspired to steal the election by switching votes from former President Trump to current President Biden. It was all a lie. And OANN knew it.
- Given that Smartmatic had no role in the general election outside of Los Angeles County, Smartmatic had no reason to be concerned about being embroiled in a discussion about election outcomes in some of the states where the vote tally was closer than it was in California. For example, Nevada, Arizona, Georgia, Pennsylvania, Michigan, and Wisconsin were states where the vote tally between the Democratic and Republican nominees for President and Vice President were much closer than the margin in California. But Smartmatic had no role whatsoever in the elections that took place in those states.
- Fox News’s success was a problem for OANN. In the immediate aftermath of the election, OANN had a once-in-a-lifetime opportunity to take viewers away from Fox News. Viewers were dissatisfied with Fox News’s initial coverage of the election results and were looking for alternative cable news sources. OANN did not want to lose this chance to siphon viewers from its main competition. So OANN decided to cover Mr. Giuliani and Ms. Powell’s demonstrably false claims about widespread fraud in the 2020 U.S. election. OANN did not merely cover Mr. Giuliani and Ms. Powell’s claims, OANN endorsed their claims and made its own demonstrably false claims about Smartmatic.
- In November 2020, a record 767,000 people installed the OANN app through AT&T, nine times as many as in October. (10/6/21 Reuters, Special Report: How AT&T helped build far-right One America News (Exhibit 157).) OANN’s website peaked at 15 million visits per month from November 2020 to January 2021, up from 8 million visits. (Id.) An analysis performed by Similarweb found that during this time period, OANN website visitors had the same loyalty rate as Fox News and Newsmax visitors. OANN had found its niche and did not want the gravy train to end. OANN soon found another way to distinguish itself from the competition—ignore a retraction demand.
- OANN intentionally created the impression that the information it published regarding Smartmatic was the only information that was accurate and truthful. OANN created this impression by telling readers and viewers to discount or ignore the information being provided by any source—government or media—other than OANN. It also told its viewers to discount Smartmatic’s retraction demand letters and the factual information contained therein.
- OANN knew that Smartmatic was not used in any state or county outside of Los Angeles County. That fact is easily ascertainable from public records. Perhaps recognizing this flaw with its story, OANN tried to hedge its bets by linking Smartmatic to Dominion and other voting machine systems. OANN accomplished this by stating and implying that a corporate relationship between Smartmatic and Dominion existed and by stating and implying that Smartmatic’s technology and software was “in the DNA” of every other voting machine, including Dominion machines.
- The widespread and general distribution of OANN’s publications about Smartmatic, thus, contributed to a crisis situation for Smartmatic, particularly in the United States where OANN has its largest audience base. Smartmatic’s reputation has been irreparably tarnished. Smartmatic’s officers and employees have been threatened. Smartmatic’s operations have come under attack—physically and electronically. Smartmatic has incurred the following out-of-pocket expenses as a result.
Smartmatic’s suit says the company has been required to spend in excess of $400,000 on public relations and crisis management following OANN’s publication of its defamatory statements and “will spend millions more in the coming years.”
Smartmatic also counts $100,000-plus on cybersecurity and $700,000-plus on retention and recruitment for personnel following OANN’s statements.
In the other case, Smartmatic also sued two lawyers aligned with Republican President Donald Trump’s re-election campaign, Rudy Giuliani and Sidney Powell, who pushed the election-rigging conspiracy theory.
Smartmatic’s lawsuit in that case stated the defendants should pay a combined $2.7 billion in monetary damages.
Fox News and its co-defendants have asked a judge to dismiss the case, arguing their commentary on Smartmatic was free speech protected by the First Amendment of the U.S. Constitution.
Fox News, OAN, Newsmax, Powell and Giuliani also face defamation claims brought by Dominion Voting Systems, another voting technology company that found itself at the center of false conspiracy theories in the weeks after the November 2020 election.
Like Smartmatic, Denver-based Dominion is seeking billions of dollars in damages. Dominion has sued other individuals as well, including My Pillow founder Mike Lindell.
Dominion scored an early victory in August when a judge allowed its defamation claims against Powell, Giuliani, and Lindell to advance toward trial.
Emily Newhouse Dillingham is they lead attorney for Smartmatic in this case.
Updated at 2:30 a.m. Nov. 4, 2021
Reuters contributed to this report.