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Dominion Voting Systems is a company that “provides local election officials with tools they can use to run elections” including voting systems, machines, and software. Since the November 2020 presidential election, it is also a company at the center of widespread allegations of election fraud. According to the lawsuit Dominion filed against Rudy Giuliani on January 25, 2021, the company has suffered irreparable harms including lost revenue and having been “unfairly subjected to the hatred, contempt, and distrust of tens of millions of American voters.”
The lawsuit alleges Rudy Giuliani repeatedly defamed Dominion by stating Dominion systems or software were part of efforts to “steal” the election from former president Donald Trump. Mr. Giuliani reportedly made statements implying that Dominion machines helped “flip” votes cast for Trump to votes for President Joe Biden. Dominion refers to these and other allegations of election fraud as “the Big Lie” throughout its lawsuit.
The lawsuit, despite its hefty 107 pages, brings only one claim: defamation per se.
At its core, defamation involves false (or misleading) statements of fact that cause the subject of the statements harm.
“Per se” refers to statements that are so serious that they are assumed to cause harm. Part of the significance of the per se designation is that in some jurisdictions, it can mean that one element of a defamation claim, harm, is already established for purposes of liability.
There are typically two main components of a civil claim: liability and damages. Liability refers whether someone did something unlawful for which they will be liable for damages. Damages is about money. It refers to how much harm the unlawful acts cased. In other words, the two key questions are, 1) did someone do something wrong (in a way that’s legally actionable), and 2) what is that harm worth?
According to Dominion, the harm to the company may be worth more than a billion dollars.
Where does the billion dollars come from?
In the lawsuit, Dominion alleges it is entitled to a judgment against Mr. Giuliani and an award of no less than $651,730,000 in compensatory damages.
Dominion spends nearly 20 pages explaining all the harms the company suffered in the wake of Giuliani’s repeated statements. The damages include loss of revenue, lost contracts with state and local governments, lost investors, and harm to the company’s public reputation. The magnitude of the harm is so significant, the company argues, because of how many millions of people appear to believe “the Big Lie” that involves Dominion.
The company also alleges that as a result of people believing Mr. Giuliani’s allegations, Dominion employees have been harassed and received death threats. The company says it has expended substantial resources in attempting to mitigate not only the harm to its reputation and profits but also to protect the lives of its employees.
Dominion notes that Mr. Giuliani continues to repeat his claims of election fraud involving Dominion, despite Dominion’s demands he stop and despite what the company says is credible, hard evidence to the contrary.
For example, the lawsuit claims Mr. Giuliani alleged in various statements that Dominion machines had an astronomical failure rate. According to statements he made about votes in one Michigan county, Mr. Giuliani alleged the machines produced a “62 percent inaccuracy rate.” The lawsuit describes how Mr. Giuliani’s claims about Michigan (and other states) have been “repeatedly disproven by independent audits and hand recounts of paper ballots” that arrived at nearly exactly the same results that were originally reported.
Dominion asks for no less than that same amount, $651,730,000, in punitive damages. Compensatory damages are tied to economic and non-economic harms. But punitive damages are not. They are meant to, as the name suggests, punish bad actors. They’re also meant to send a message to others that such behavior is costly and will not be tolerated. Dominion claims that punitive damages are warranted in this case, in part because it alleges Mr. Giuliani knowingly and intentionally made false statements about the company.
Dominion filed another defamation suit against another Trump attorney, Sidney Powell, for similar reasons and seeking the same damages: $1.3 billion.
The next interesting step will be to see how Mr. Giuliani and Mr. Powell respond to the suits. It’s reasonable to suspect that they will try to get the lawsuits dismissed. If that doesn’t work, they’ll have to the complaint and admit or deny its allegations. Their answer will also be where they preview what defenses they plan to bring to shield them from liability and from having to pay $1.3 billion dollars to Dominion.