Skip to main content

Smartmatic Files ‘Precautionary’ 2020 Election Lawsuit Against Sidney Powell — Just Barely Within Washington, D.C.’s One-Year Statute of Limitations

Sidney Powell appears in an August 2021 interview with the Australian Broadcasting Corporation.

Sidney Powell appears in an August 2021 interview with the Australian Broadcasting Corporation.

Voting technology company Smartmatic on Friday filed what its attorneys called a “precautionary lawsuit” against conservative attorney Sidney Powell in U.S. District Court for the District of Columbia.

In court papers, Smartmatic’s attorneys said the claims were “materially identical” to claims the company already filed against Powell in New York State. The new Washington, D.C. lawsuit was filed one year and nine days after the date of the 2020 election and was explicitly designed to avoid a one-year D.C. statute of limitations that otherwise would likely have slammed the door shut on a claim by Smartmatic against Powell in the nation’s capital. The lawsuit specifically references a Nov. 19, 2020 press conference where Powell allegedly “traveled to the District of Columbia shortly after the 2020 U.S. election and then made defamatory statements about Smartmatic from within the District of Columbia.” Other statements by Powell are dated in the lawsuit as having occurred Nov. 14, 2020, on a Fox News broadcast. One year from Nov. 14, 2020, is Sunday.

The 203-page lawsuit alleges seven counts of defamation and five counts of injurious falsehoods. It seeks unspecified “[c]ompensatory damages in an amount to be determined at trial” along with “[a]ctual, consequential and special damages,” “[p]unitive damages,” attorneys’ fees, costs, interest, and other relief. Smartmatic asserts that it has spent “in excess of $400,000 on public relations and crisis management following Ms. Powell’s defamatory statements and will spend millions more in the coming years.” It also says it has spent “in excess of $100,000 on cybersecurity” and “in excess of $700,000 on retention and recruitment of personnel following Ms. Powell’s defamatory statements” and envisions spending “millions more in the coming years” on both of those fronts as well.

Smartmatic is already suing Powell separately in New York State Supreme Court as part of a $2.7 billion defamation action against a collection of conservative attorneys, personalities, and against Fox News itself. A letter filed in the New York State action on Friday sheds light on the concomitant D.C. action also filed Friday. The letter, to New York State Supreme Court Judge David B. Cohen, says the brand-new D.C. litigation “was filed to guard against any statute of limitations issues with respect to Ms. Powell should this Court find that it lacks personal jurisdiction over her.” The letter more fully explains Smartmatic’s tactics:

As the Court is aware, Smartmatic commenced this action on February 4, 2021 against Defendants for defamation and disparagement in connection with Fox’s coverage of the 2020 U.S. election. Many of the statements at issue in this action, including those made by Ms. Powell, began shortly after the November 2020 U.S. election. Ms. Powell is the only Defendant contesting personal jurisdiction. In the event this Court were to dismiss Ms. Powell for lack of personal jurisdiction, Smartmatic would have to prosecute its claims against Ms. Powell in a lawsuit timely commenced in another forum that has personal jurisdiction over her. With respect to this timing, many states have a one-year statute of limitations for defamation actions. Smartmatic therefore had to file a separate lawsuit at this time to comply with this limitation.

Recently, a federal district court in the District of Columbia found that it had personal jurisdiction over Ms. Powell for her conduct related to making defamatory and disparaging statements about another election company, Dominion Voting Systems (“Dominion”). The court’s finding was based, in part, on its recognition that Ms. Powell traveled to and rented hotel rooms in the District of Columbia to make some of the statements at issue in Dominion’s lawsuit against Ms. Powell. [Citations omitted.] Many of those statements made by Ms. Powell about Dominion from D.C. include statements at issue in this action because Ms. Powell was speaking of Dominion and Smartmatic.

The New York State litigation by Smartmatic is against Fox Corporation, Fox News Network LLC, former host Lou Dobbs, Maria Bartiromo, Jeanine Pirro, Rudy Guiliani, and Powell. Filed in early February, it alleges “defamation and disparagement in connection with Fox’s coverage of the 2020 U.S. election,” the Friday to Judge Cohen says in summation. Though Giuliani is not named as a defendant in the D.C. action, it does reference a Nov. 12, 2020 statement by him — exactly one year ago to the day that the action was filed. Fox News and its personalities have moved to dismiss the case.

After laying out the specifics of why procedural rules required the separate filing of the so-called “precautionary” case separately in D.C., Smartmatic continued to Judge Cohen in New York:

Notwithstanding Smartmatic’s filing of the Precautionary Lawsuit, Smartmatic’s preferred forum is — and always has been — in this Court in New York. And this is the forum where Smartmatic can and wishes to litigate all its claims together against all of Defendants, including Ms. Powell. Smartmatic filed the Precautionary Lawsuit only to preserve its claims against Ms. Powell if this Court finds that it does not have personal jurisdiction over Ms. Powell. Smartmatic had no choice but to file the Precautionary Lawsuit given that the District of Columbia has not adopted a “saving” statute. Smartmatic plans to ask the U.S. District Court for the District of Columbia to stay proceedings with respect to the Precautionary Lawsuit until after this Court resolves Ms. Powell’s jurisdictional objection.

Smartmatic’s D.C. lawsuit, filed Friday, recounts the rationale for the separate litigation in similar fashion:

This is an action against Sidney Powell for the disinformation campaign she embarked on against Smartmatic in November and December 2020. This action is materially identical to a prior action pending in the Supreme Court of the State of New York, Smartmatic USA Corp., et al. v. Fox Corporation, et al., No. 151136/2021 (filed February 4, 2021), except this lawsuit is solely against Ms. Powell. It is commenced in this Court as a precautionary measure to protect Smartmatic, whose reputation and business has been damaged by Ms. Powell, by preserving Smartmatic’s claims under the relevant statute of limitations, and as a prophylactic measure in the event that personal jurisdiction is found lacking in the Supreme Court of the State of New York. This Court has already found personal jurisdiction over Ms. Powell in a related lawsuit for claims arising out of substantially similar events. US Dominion, Inc. v. Powell, No. 21-cv-00040 (CJN), 2021 WL 3550974, at *14–15 (D.D.C. Aug. 11, 2021). Smartmatic also intends to respectfully request a stay of this precautionary action until the personal jurisdiction issue is finally resolved by the New York Courts.

Read the letter to Judge Cohen below:

Read the full D.C. lawsuit below:

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.