Deadline

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE US DOMINION, INC., DOMINION VOTING SYSTEMS, INC., and DOMINION VOTING SYSTEMS CORPORATION, Plaintiffs, v. FOX NEWS NETWORK, LLC, Defendant. ) ) ) ) No.: N21C-03-257 EMD ) ) ) ) ) ) ) ) Submitted: September 27, 20211 Decided: December 16, 2021 Upon Defendant s Motion to Dismiss DENIED Brian Farnan, Esquire, Michael J. Farnan, Esquire, Farnan LLP, Wilmington, Delaware; Rodney Smolla, Esquire, Wilmington, Delaware; Thomas A.

2 Clare, Esquire, Megan L. Meier, Esquire, Dustin A. Pusch, Esquire, Daniel P. Watkins, Esquire, Clare Locke LLP, Alexandria, Virginia; Justin A. Nelson, Esquire, Susman Godfrey LLP, Houston, Texas; Stephen Shackelford, Jr., Esquire, Elisha Barron, Esquire, Susman Godfrey LLP, New York, New York; Davida Brook, Esquire, Emily Cronin, Esquire, Brittany Fowler, Esquire, Susman Godfrey LLP, Los Angeles, California; Stephen E. Morrissey, Esquire, Susman Godfrey LLP, Seattle, Washington; Attorneys for Plaintiffs US Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation. Blake Rohrbacher, Esquire, Katharine L.

3 Mowery, Esquire, Valerie A. Caras, Esquire, Richards, Layton & Finger, , Wilmington, Delaware; Charles L. Babcock, Esquire, Jackson Walker LLP, Houston, Texas; Scott A. Keller, Esquire, Lehotsky Keller LLP, Washington, ; Attorneys for Defendant Fox News Network, LLC. DAVIS, J. 1 No. 103. Deadline2 I. INTRODUCTION This is a civil action involving a defamation claim. Plaintiffs US Dominion, Inc., Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation (collectively Dominion ) allege that Defendant Fox News Network, LLC ( Fox ) published false and defamatory statements of fact about Dominion. Through its complaint (the Complaint ),2 Dominion contends that: (i) Fox intentionally provided a platform for guests that Fox s hosts knew would make false and defamatory statements of fact on the air; (ii) Fox, through Fox s hosts, affirmed, endorsed, repeated, and agreed with those guests statements; and (iii) Fox republished those defamatory and false statements of fact on the air, Fox s websites, Fox s social media accounts, and Fox s other digital platforms and subscription services.

4 Dominion seeks punitive and economic damages for defamation per se. On May 18, 2021, Fox moved to dismiss (the Motion ) the Complaint for failure to state a Dominion opposed the Motion, filing an answering brief on June 8, Fox filed its reply brief on June 25, The Court held a hearing on the Motion on August 30, At the conclusion of the hearing, the Court took the Motion under advisement. This is the Court s decision on the Motion. For the reasons set forth below, the Motion is DENIED. II. BACKGROUND Unless otherwise indicated, the following facts are stated as alleged in the Complaint. For purposes of the Motion, the Court must view all well-pled facts alleged in the Complaint as true and in a light most favorable to As such, the Court will not necessarily use 2 No.

5 1. 3 No. 45. 4 No. 60. 5 No. 61 6 No. 93. 7 See, , Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 531, 536 (Del. 2011); Doe v. Cedars Acad., LLC, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010). Deadline3 terms like alleged facts or purported facts throughout. Unless otherwise indicated, all facts used herein come from the Complaint. This section tracks the facts in the order alleged in the Complaint. A. THE PARTIES Plaintiff US Dominion, Inc. is a Delaware corporation with its principal place of business in Plaintiff Dominion Voting Systems, Inc. is a Delaware corporation with its principal place of business in Plaintiff Dominion Voting Systems Corporation is an Ontario corporation with its principal place of business in Dominion Voting Systems, Inc.

6 And Dominion Voting Systems Corporation are wholly owned subsidiaries of US Dominion, Defendant Fox is a Delaware LLC with its principal place of business in New Fox operates the Fox news Channel, the Fox Business Channel, Fox News Radio, and Fox News Digital, which it refers to collectively as Fox News Media. 13 B. RELEVANT NONPARTIES Maria Bartiromo is a Fox News and Fox Business personality who hosts Mornings with Maria on Fox Business and Sunday Morning Futures with Maria Bartiromo on Fox Ms. Bartiromo is Fox s Fox broadcasts Mornings with Maria and Sunday Morning Futures from New Fox also controls Ms.

7 Bartiromo s social media 8 Compl. 8. 9 Id. 9. 10 Id. 10. 11 Id. 9, 10. 12 Id. 11. 13 Id. 14 Id. 12. 15 Id. 16 Id. 17 Id. Deadline4 Tucker Carlson is a Fox News personality and hosts Fox s Tucker Carlson Mr. Carlson is Fox s Fox operates Mr. Carlson s Instagram Lou Dobbs is a Fox Business personality who hosted Lou Dobbs Until at least February 5, 2021, Fox operated Mr. Dobb s social media Sean Hannity is a Fox News personality and hosts Fox s Mr. Hannity is Fox s Jeanine Pirro is a Fox News personality who hosts Justice w/ Judge Ms. Pirro is Fox s Fox operates Ms. Pirro s social media Sidney Powell is an attorney that briefly pursued litigation challenging the 2020 Presidential Those cases were all summarily dismissed by December 9, Fox repeatedly hosted Ms.

8 Powell after the 2020 Presidential Rudolph Giuliani, the former mayor of New York City, is a YouTube podcast host, radio show host and attorney to President Donald Trump and the Trump Fox repeatedly hosted Mr. Giuliani in the weeks following the 2020 Presidential Election. 18 Id. 13. 19 Id. 20 Id. 21 Id. 14. 22 Id. 23 Id. 15. 24 Id. 25 Id. 16. 26 Id. 27 Id. 28 Id. 17. 29 Id. 30 Id. 31 Id. 18. Deadline5 Mike Lindell is the founder and CEO of My Pillow, Inc. ( MyPillow ), one of Fox s biggest Fox invited Mr. Lindell on Tucker Carlson Tonight, where he repeated lies about Dominion in response to questions about why he had been banned from C.

9 DOMINION VOTING SYSTEMS Dominion s voting systems are certified under Election Assistance Commission ( EAC ) The EAC accredits independent testing laboratories that also review and test Dominion s voting In addition, Dominion designs its voting systems to be Dominion s systems include paper ballot backup to verify Dominion contracts with state and local governments to provide voting systems These contracts typically have multi-year terms and range in value from tens of thousands of dollars to over a hundred million Dominion s contracts are historically long-term with high renewal In the 2020 election, Dominion provided voting machine technology in over 28 states including in more than 50 New York D.

10 FOX ANTICIPATES SIGNIFICANT MAIL-IN VOTING DURING THE 2020 ELECTION. Leading up to the 2020 election, Fox reported that election officials expected record mail-in voting because of coronavirus pandemic Fox also reported that mail-in voting was widely expected to favor Democrats, in significant part because prominent Republicans, 32 Id. 19. 33 Id. 34 Id. 21. 35 Id. 36 Id. 37 Id. 38 Id. 25. 39 Id. 40 Id. 41 Id. 42 Id. 29. Deadline6 including former President Trump, consistently encouraged supporters to avoid voting by The Fox News Decision Desk head predicted that Fox would be unable to call some states where it seemed that former President Trump was in the lead because there would still be 20-30 percent of the vote The Desk head also recognized and Fox reiterated before the election that this would occur because former President Trump criticized mail-in voting while Democrats encouraged voting by Ms.