Election 2020

Dominion Files $1.3 Billion Defamation Suit Against Rudy Giuliani

The crackdown on crackpot Kraken claims continues.

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This morning, U.S. Dominion, Inc. made good on its threats to sue Rudy Giuliani by filing a $1.3 billion defamation suit against him for propagating and repeating various unfounded conspiracy claims about Dominion Voting Systems and its various election-related products. This suit follows on a similar filing against Sidney Powell, demand letters filed against conservative media outlets, and a threatened suit against My Pillow CEO Mike Lindell.

Dominion's complaint is available here. The opening reads:

During a court hearing contesting the results of the 2020 election in Pennsylvania, Rudy Giuliani admitted that the Trump Campaign "doesn't plead fraud" and that "this is not a fraud case." Although he was unwilling to make false election fraud claims about Dominion and its voting machines in a court of law because he knew those allegations are false, he and his allies manufactured and disseminated the "Big Lie," which foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election. Giuliani reportedly demanded $20,000 per day for that Big Lie. But he also cashed in by hosting a podcast where he exploited election falsehoods to market gold coins, supplements, cigars, and protection from "cyberthieves." Even after the United States Capitol had been stormed by rioters who had been deceived by Giuliani and his allies, Giuliani shirked responsibility for the consequences of his words and repeated the Big Lie again. This defamation action follows.

Among other things, the complaint stresses that while Giuliani often repeated outrageous, unfounded claims against Dominion–and promoted the ravings of Sidney Powell, among others, on television and various public fora–he was careful not to include such allegations in any legal filings in which he participated, likely because he feared court discipline or other adverse consequences from such filings.

According to Axios, additional suits are possible, including perhaps a suit against Trump himself. And, of course, a suit against Lindell is still possible.

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  1. Continuing the theme of the post, Richard Overton once filed a lawsuit (Overton v. Anheuser-Busch Co., 1993), as did administrative Judge Roy Pearson (Pearson v. Chung, 2005).

  2. Glad to see this.

    We all know why Giuliani & co. were careful not to put outrageous factual claims into their pleadings, but even the arguments were, to my mind, Rule 11-worthy.

    1. As I posted below, I am dubious that Dominion will be able to show any cognizable damages, let alone $ 1.3 Billion.

      Do you think Rule 11 applies to bringing a suit for damages when you have none?

      1. “As I posted below, I am dubious that Dominion will be able to show any cognizable damages, let alone $ 1.3 Billion.”

        Wrong. They certainly suffered some cognizable damages. The amount … well, we will see. But saying that there were none? That’s not a supportable statement.

        “Do you think Rule 11 applies to bringing a suit for damages when you have none?”

        No serious attorney with experience in federal practice would say that.

        If someone stated in a complaint that X happened, and then in a deposition stated that X did not happen, and then a Rule 11 motion was brought …. then maybe, just maybe, you might get sanctions.

        But saying “but sanctions!” is they type of thing reserved for the people here who do not practice, Bored. You’re better than that. Aren’t you?

        1. Why don’t you speculate about what cognizable damages they suffered? Have they lost any business as a result of Giuliani and his cohorts?

          (In NY, such damages would have to be stated with particularity in the complaint, but I can’t speak for DC).

          1. Why should I speculate?

            It’s almost like there’s a Complaint filed! With headings! One of them is … DOMINION SUFFERS ENORMOUS HARM.

            It has 38 paragraphs (97-135). Admittedly, most of them are fluff that are establishing how wide-spread the reputational damage is. But you can read them.

            p. 118- recived calls for jail time and received death threats. There’s some good follow-up to this.
            p. 126- significant expenditures on private security
            p. 128- significant expenditures to fight viral disinformation
            p. 129-134- contracts with governments impaired
            p. 135- good summation, plus lost profits of 200 million, resale lue lost of 450-500 million.

            It’s almost like they had to plead this. C’mon, Bored.

            1. I wonder what kind of offsets to damage there will be, of the any-press-is-good-press variety, and of the general increase in notoriety and awareness, people thinking Dominion is fighting the good fight, want to hire them, etc.

              1. Offsets for press?

                To be clear, you’re claiming Rudy Two-Scoops should pay less because Dominion will make news for asserting their rights?

                1. I take tkamenick’s comment to be a suggestion that the large amount of press coverage Dominion has received could cause their revenue to increase and their valuation to rise, or at least not go down as much as it would have, following Giuliani’s (et al) allegations.

                  While I’m sure that would be part of the damages analysis, I personally can’t see any Republican state or local election official deciding that hiring Dominion to run vote counting for their next election is worth the political blowback; can you?

                  1. Do jurisdictions buy brand new machines for every election?

                    I assume they buy them once for many elections.

                    1. Jurisdictions enter into multi-year contracts with Dominion.

                      Again, as seen below and pointed out, thank you for confirming you didn’t read the complaint.

              2. What a great point. The benefits from an act should be deducted from the damages. Get an independent appraisal of the damages, then deduct the market value of the advertising.

                1. Um, that’s baked into lost business, not a separate item. Defendant: “sure, tons of people think you are a child molester, but now everybody in town knows your name because of the accusation!” Lost business is lost business. Publicity, however favorable, is only worth something if it gets you business. “Advertising” that you pay for is worthless if it fails to increase business. It may cost you something if you purchase it, but it gives one no benefit. BTW, the aphorism “no press is bad press” is an old Hollywood saying that was never true even when it was current, not a legal doctrine–else defamation wouldn’t be a thing.

                  1. Sex offenders get marriage proposals in prison.

            2. $1.3 Billion worth of harm? What did they do, hire the entire US Army?

              1. Thanks for confirming that you didn’t look at the complaint (or even the relevant part of the complaint) before criticizing it.

                1. No no, thank you for demonstrating a clear lack of humor and reconfirming that view of lawyers. I bet you don’t even laugh at lawyer jokes.

            3. p. 118- recived calls for jail time and received death threats. There’s some good follow-up to this.
              p. 126- significant expenditures on private security

              Are these cognizable damages for defamation? Would be curious to see some legal authority.

              p. 128- significant expenditures to fight viral disinformation

              Yes, that one seems like a good basis for damages.

              p. 129-134- contracts with governments impaired
              p. 135- good summation, plus lost profits of 200 million, resale lue lost of 450-500 million.

              These are completely speculative when you read them. As of today, no court would award those damages.

              So they may well have something, but far less than what is pleaded.

              The complaint reads more like a political statement than a legal pleadings. Which is understandable given the context.

              Have to give the lawyers credit for humor, though. Among other things, they not that during the allegedly defamatory podcasts, Giuliani took time to hawk some swag.

              “Also during that defamatory podcast, Giuliani claimed supplements would cure his viewers’ achy joints and muscles and implored them to “stop wasting money and switch.” He instructed them to use his name when ordering and said they could get a second bottle free if they ordered “now.”

              They then include an image of Rudy’s face alongside the supplements. (That’s at paragraph 21, pp. 8-9)

              1. “These are completely speculative when you read them. As of today, no court would award those damages.

                So they may well have something, but far less than what is pleaded.”

                Um, sure. But saying, “At this time, I, Bored Lawyer, think they might get less in damages than what they have pled,” is a lot different than, “I, Bored Lawyer, without reading the Complaint, will pontificate that not only can there be no damages, but they didn’t plead any, and are subject to sanctions (??!!???) given that there can be no damages.”

                Sure, it’s a big ask for 6.5 in compensatory, and 6.5 in punitive. But have you ever seen a complaint ask for less than the damages that the Plaintiff might be able to prove up?

                “Sure, maybe they’ve destroyed 400-500 million in valuation for our company that we can document and the other side will argue about with expert testimony, but why bother asserting it and having the other side defend it? Seems effortful.”

                1. Do you know the meaning of the phrase beating up on a straw man?

                  1. I would, if it was a strawman.

                    Seriously, you’re an attorney. Which means that, unlike the Dr. Eds of the world I hold you to a slightly higher standard.

                    That means that:
                    1. Without even reading the complaint, you should have known that they would be able to “prove up” some level of damages. That’s so simple, it shouldn’t have to be explained to you.

                    2. You should have taken the time to read the complaint before pontificating, if you’re going to do that. And if you’re called out on it, you should at least graciously accepted it and move on. Instead of continuing to dig the whole.

                    1. I doubt this guy is an attorney, although I suppose he could have a degree from South Texas College of Law Houston.

                    2. “Seriously, you’re an attorney. Which means that, unlike the Dr. Eds of the world I hold you to a slightly higher standard. ”

                      It’s hard for me to read tone in blog comments – was that meant as a joke?

                    3. It’s not a joke at all. I suspect one thing that loki and I quite agree on is that when lawyers comment publicly on legal issues, even in informal fora such as a comments thread, we are still representatives of the bar and have an obligation both to the public and the bar to be informed and informative in our comments.

                      I may not live up to that in every comment I make on a legal issue, but I do try and I know loki tries as well, and we expect others to try harder than Bored Lawyer was here.

              2. Bored Lawyer, how is someone liable for the *criminal* acts of third parties? Isn’t that the whole thing in “doxing” and the rest?

                Remember that if I say that you live at 1 Second Street and that your phone number is 123-456-7890, I haven’t harmed you. It’s the third parties reaction to this information (the post-midnight crank phone calls and rocks through your windows) that you are worried about, and those are criminal acts.

                Dispersing computer viri is a Federal felony, I believe (hope) a fairly serous one, and there are assorted laws against telephone/email harassment, not to mention that threats of violence, regards of the means of transmission, are generally frowned on in every jurisdiction.

                So how is Giuliani saying that Dominion is (whatever) and someone else being labeled a “racist”? In both cases, both their persons and property are placed into jeopardy by third parties acting illegally.

              3. Actually, “general damages” for harm to reputation can get quite high. It is like “pain and suffering.” A reasonable basis for assessing the damage might include survey data about how many people believed the defamation. If it is, say, 50 million people, damages of $10 per person would get you $500 million right there. You want to refine it, survey the people who would oppose their local government using Dominion for elections, though I expect the difference wouldn’t be much. (If one believed it, who wouldn’t oppose it?)
                General damages, such as emotional distress, or in this case reputational harm, are “speculative” to some degree, but are left, for the most part, to the discretion of the jury to decide what constitutes “reasonable compensation” for the harm. As Prosser says damages in such cases are “an estimate, however rough, of the probable extent of actual loss a person had suffered and would suffer in the future, even though the loss could not be identified in terms of advantageous relationships lost, either from a monetary or enjoyment-of-life standpoint.”
                Death threats, harassment, tearful employees are all great jury material, and more than enough to support a verdict for reputational harm.
                The $1.3 billion is made up of $600 million+ actual damages, and another $600 million+ punitive damages, well within constitutional limits on punitive awards. There have been defamation verdicts over $200 million for stuff you probably never even heard about. ABC News got sued for $1.9 billion by Beef Products Inc. in response to broadcasts describing “lean finely textured beef” made by the company as “pink slime.”
                Giuliani’s statements were made to 10s of millions more people than most defamation cases involve. Way more people paid attention and acted on the information. A reasonable estimate of the reputational damage is easily within a 9-figure range.

                You also mistake the inclusion of Rudy’s hawking of merchandise as gratuitous. It is directly relevant to pleading a basis for punitive damages–specifically that his motive for making the defamatory statements, was, at least in some part, his own enrichment, as opposed to merely overzealous political beliefs stated as fact. The $20k per day allegation is to the same effect. Obviously, if the jury finds a profit motive, puni’s skyrocket.

            4. Even assuming everything they pled, there’s no way this is worth $1.3 billion. That’s just ludicrous.

              1. For eff’s sake, read the dang complaint.

                HALF OF IT IS PUNITIVE DAMAGES.

                So sure, maybe (maybe?) they will have trouble proving up 650 million. Given we don’t know how much damage has been inflicted on the company and the company’s contracts, neither of us know the answer to that. But it’s hardly ludicrous given that some individual contracts are worth (according to the allegations) over 100 million.

              2. We also have no way at this point of knowing how much the value of the company may have declined.

                We, or at least Dominion, probably does have a decent idea of lost future profits. In companies that have a lot of ongoing business with the same customers the salespeople will be in touch with customers regularly, so they will have some idea of which contracts are in jeopardy, which prospects are going elsewhere as a result of these lies, and so on. Since it’s a sort of niche business, they will also get a lot of information from other industry sources, customers they retain, and the like.

                My guess is they have a case for a substantial number, given the likely hostility from many Republican election officials.

                I would note that you can’t really count both lost future profits and decline in value, since value is, more or less, the present value of future profits. That’s a bit simplistic, but the general point is sound.

                1. “I would note that you can’t really count both lost future profits and decline in value, since value is, more or less, the present value of future profits. That’s a bit simplistic, but the general point is sound.”

                  Damn – I actually agree with Bernard – because he got the concept correct. you can tinker with the math, but value is the present value of future cash flows / profits

                  1. Graduate school in finance will actually teach you a thing or two.

                    1. I am amazed how many valuations are devoid of reality which total lost any concept of cash flows

                      1)commercial real estate values just prior to the 80’s S&L crisis
                      2) Tech stock valuations in 1999-2000
                      3) the valuation of Gibson Bakery in the Oberlin college lawsuit by both sides fake experts
                      4) Tesla Stock –
                      5) the current valuation of the FANG stocks which are the primary drivers of the S&P ( caveat, I havent look at those valuations for sometime, but they seem way out of line)

            5. recived calls for jail time and received death threats, significant expenditures on private security, significant expenditures to fight viral disinformation, contracts with governments impaired, plus lost profits of 200 million, resale lue lost of 450-500 million.

              Can’t Giuliani turn around and file a countersuit for the exact same damages which he can argue that he suffered as the result of what Dominion said about him?

              You honestly don’t think he hasn’t been getting death threats or had to hire more security? Or that he has lost speaking engagements and other lucrative things? That he hasn’t been defamed too?

              1. Um, no, because the statements would have to be false to support a defamation claim.

                1. Likewise, his statements would have to be false to support a defamation claim.

                  1. You mean like the statement that Dominion is owned by Smartmatic and that Smartmatic was formed “in order to fix elections” by “three Venezuelans who were very close to … the dictator Chávez of Venezuela”? Or the statement that “Smartmatic, the company that owns Dominion” was being run by one of the people who was number two or three in George Soros’s organization? Or the statement that “Dominion software … really is Venezuelan … it’s called Smartmatic”?

                    I mean, that’s from one randomly-chosen page of the complaint. Somehow I don’t think Dominion is worried about meeting that bar.

                    1. Corporate ownership can get quite complicated…

              2. Can’t Giuliani turn around and file a countersuit for the exact same damages which he can argue that he suffered as the result of what Dominion said about him?

                That’d be really dumb.

                But I’d bet Rudy is up for it.

              3. Can’t Giuliani turn around and file a countersuit for the exact same damages which he can argue that he suffered as the result of what Dominion said about him?

                No.

                This has been yet another episode of Simple Answers to Stupid Questions.

            6. Rudy has filed a response…

          2. Look up “slander per se”, which this obviously is. No special damages need be pled.

          3. did dominion not suffer any damages with the Democrats complained in prior elections or prior to the 2020 election?

            1. complained about?

        2. Does this fall into the “libel per se” category where it would not be necessary to prove damages in order to receive an award or would it be necessary to plead per se in the complaint, if they haven’t?

          1. Libellously alleging that someone is guilty of a felony? Or is that not/no longer the rule?

          2. The complaint does claim the Mr. Guiliani’s statements are defamatory per se. Dominion claims that Mr. Guiliani has accused Dominion of serious crimes.

      2. At the very least, the death threats and hate mail that poured into their employees required extra security and doctors visits, and inflicted pain and suffering.

        And at most, if the jury finds the defendant intentionally sought to destroy their entire business, he can be found liable for what he intended to do even if it didn’t succeed.

        1. Do you think Dominion is a public official? Otherwise, why set the bar at intentionally?

          1. Because the bar for actual malice is not limited to “public official”.

        2. Death threats and hate mail leading to extra security might get you into low millions. But probably not. As someone who’s had to contract for exactly those services in other contexts, that’s a high-five-digit, maybe-six-digit solution. So, $1.299 Billion to go to justify their claim.

          Re: liability for the entire value of the business because he intentionally sought to destroy it – I can’t think of any case anywhere that’s followed that logic. In fact, I can’t even think of any that allowed “intended” damages instead of actual damages in any context. I guess you could say that attempted murder is a charge about “intended” damages but has any court actually done what you are claiming?

          1. Lost business and goodwill, and lost valuation due to reputational injury can be proven up in corporate defamation cases.

            1. Giuliani can claim the same….

              1. LOL! If he’s not defamation-proof, I don’t know who is.

              2. Is Giuliani claiming that Dominion defamed him?

              3. Are you arguing that filing a defamation lawsuit is defamation?

                1. Hell, Trump claimed debt collection was defamation.

            2. In theory, yes they can prove lost business and good will. In practice, they’ll be lucky to get into seven digits. There’s no possible way they’re getting to 10 digits on that. As several people have already pointed out, even if you assumed that the defamation drove them bankrupt, the company isn’t worth nearly that much.

              Regardless, that dodges my point which is that the company must show actual damages, not merely intended damages as ReaderY claimed.

          2. What about loss of key employees due to threats, harassment, etc. , or difficulty in hiring in general?

      3. I looked at a Dun & Bradstreet “snapshot” of Dominion. It shows annual revenues of $36.5 million. Without more digging, I couldn’t break out a profit statement, but I doubt they are even profitable. Assuming they are generating a 20% return on revenues, they are asking for 150 years worth of current profits as damages. Maybe Lin Wood drafted their complaint?

        https://www.dnb.com/business-directory/company-profiles.dominion_voting_systems_inc.afb4f7862bf394ab3056650d03f0a8b0.html#financials-anchor

        1. Five years of projected revenues, at net present value, to get them to ~$200 million. Destruction of the goodwill and sale value of the company, ~$500 million (there are lots of companies that trade at ten times revenue, obviously they’re projecting some growth). Plus they’re claiming punitive damages equal to the amount of actual damages.

          1. You don’t get lost revenues, you get lost profits as damages. And the damage are calculated based on the length your business is expected to be impaired. I don’t see any argument that they will earn exactly zero for five years, based on the disparaging statements. But if they could show this, they would only get their lost profits. Obviously, punitive damages are a “bounded wild card”, but they are going to have put some real damages on the table to get within hailing distance of their damages demand.

          2. You can’t actually add profits and lost value. That’s double counting.

            I couldn’t break out a profit statement, but I doubt they are even profitable.

            Why would you doubt that? Is there other financial information available?

            there are lots of companies that trade at ten times revenue, obviously they’re projecting some growth

            No there aren’t. Apple trades at about seven times revenue. Amazon at less than five times. If a company’s earnings are 10% of revenues that would imply a 100 P/E ratio.

            The only companies that might trade at large revenue multiples like that would be small tech companies, or biotechs, that have no significant revenue yet, and are trading on hope.

            A company like Dominion just doesn’t have the great growth prospects needed to justify a huge multiple.

            1. I’m not adding lost profits and value. I agree that would be double counting.

              I doubt they are profitable because they have a pretty big footprint for such small revenues. I was surprised the revenues were so small, given that their machines or software is reportedly in such wide use. That said, I thought assuming 20% profits was more than fair.

              I am not aware of stock valuations being used to calculate damages of this type. So, while a huge multiple might seem totally plausible from a trading perspective, I do not believe that the damages calculation, for this type of lawsuit, would turn on that. I get that profit expectations are forward-looking, but I haven’t seen disparagement or economic loss cases that predicated such huge damages on such slender profits.

              1. I’m not adding lost profits and value. I agree that would be double counting.

                No. But the complaint seems to.

                I doubt they are profitable because they have a pretty big footprint for such small revenues.

                Yet they’ve been in business since 2003. They would have gone through an awful lot of capital if they weren’t making money.

                I thought assuming 20% profits was more than fair.

                It is.

                I am not aware of stock valuations being used to calculate damages of this type.

                I don’t know if the are or not, but maybe they should be in some cases. After all, the market price is the best estimate we have of the value of a traded company.

                For a privately held firm like Dominion you might us an EBITDA multiple, or if you can some comparable public firms you can use those multiples, trimmed for illiquidity.

                So, while a huge multiple might seem totally plausible from a trading perspective, I do not believe that the damages calculation, for this type of lawsuit, would turn on that. I get that profit expectations are forward-looking, but I haven’t seen disparagement or economic loss cases that predicated such huge damages on such slender profits.

      4. Obviously you’re not a defamation lawyer, despite your contention otherwise.

        Look up “slander per se”, for which no cognizable damages need be pled.

      5. IF Dominion employees made Farcebook postings as to how they intended to rig the election — if such posts exist — they’d be admissible, wouldn’t they?

      6. They’re a vote counting machine being unjustly accused of miscounting votes to steal an election. To claim there are no cognizable damages is absurd.

        If I were Dominion I would probably be looking at a way to change my name. If I were a competitor I’d be looking to scoop their markets or even buy them out at a discount.

  3. Giuliani should win, at least if the CIA lets him subpoena the data they got when they raided Dominion’s server farm in Frankfurt.

    1. Update: If there were no voter fraud, then why has the new Congress begun its session by floating a bill to legalize every fraud technique known to man? This amounts to open admission that they did it.

      https://gellerreport.com/2021/01/treason-democrats-first-bill-of-2021-is-to-lock-in-fraudulent-elections-forever.html

      1. None of those proposals is voter fraud, all are used in at lease one state already, and all are aimed at allowing more eligible people to vote. Rs are afraid of having more people vote because voter suppression is the only way they can win, and they have openly admitted this.

        1. So, your argument is that if even one state does it, it can’t be a bad practice, so let’s level down our election security to some combination of all the states’ worst practices?

          I’ve just briefly scanned it, this thing is a monster, but there are a lot of problematic things.

          Basically universal registration of everybody even suspected of being qualified to vote. (Having people on the registration lists who don’t actually vote is the raw material for absentee ballot fraud.)

          Repealing the protection of contributors to non-profits who might be subject to retaliation. Basically this thing mandates that you provide a target list for people out to destroy your contributors.

          Mandating curbside, drop box, and mail in elections.

          Banning requiring voter ID. Banning requiring that signatures be witnessed. Requiring counting ballots arriving up to 10 days after the election. Requiring that ballot harvesting be legal.

          Basically this is taking a list of worst practices for election security, and mandating their use nation-wide.

          1. Oh, and they included a finding related to Citizens United, calling for the 1st amendment to be gutted.

          2. Basically universal registration of everybody even suspected of being qualified to vote. (Having people on the registration lists who don’t actually vote is the raw material for absentee ballot fraud.)

            For the record, I continue to be confused about why voter registration is even a thing. I never had to do it until I moved to England. What’s so hard about just letting everyone vote?

            1. Well, not everybody is legally entitled to vote, and even the people legally entitled to are only entitled to do so where they reside. How do you keep people from voting someplace other than where they live, possibly multiple other places, without such a system?

              I’ll grant you that, if you have at large PR, it is quite possibly not as big a deal, since you’re just contributing to totals over a large area, rather than helping pick the representative for a particular district.

              And, if you combine no need for registration, with mail in voting, and essentially no ID checks, what’s to stop somebody from voting via post multiple times under different names?

              1. And, if you combine no need for registration, with mail in voting, and essentially no ID checks, what’s to stop somebody from voting via post multiple times under different names?

                That’s pretty easy to answer, Brett. Rewards are almost non-existent, notably less than from shoplifting bubble gum. Penalties for getting caught are severe.

            2. Apart from those not qualified at all, in a large country like the United States, not everyone is qualified to vote everywhere. I am qualified only in my state, county and municipality, not someone else’s. Registration is one way of ensuring that the votes is voting in the correct jurisdiciton, and avoiding fraud both as to voting twice and voting in the wrong place.

          3. Sorry, Brett, but I don’t find you particularly credible on the subject of election security. I don’t think your concerns are honest.

            1. Where is our bad faith monitor? Even if Brett’s concerns are not honestly held he is right about these proposals. It’s a train wreck and if implemented we will never have another election that the people can trust.

              1. No, he’s not right.

                The whole “vote fraud” business is a scam used to suppress voting.

                His claims are evidence-free.

    2. Silly jdgalt1. Do you really think we wouldn’t have already destroyed that data at the request of our Lizard People overlords?

    3. I thought this was parody until you posted your update.

      Just shows that Poe’s law is holding strong.

    4. No such raid.

      Stop spreading lies.

  4. This is a federal suit. Rule 26(a)(1) requires at the beginning of each case for each party to make initial disclosures, including:

    (iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered;

    Pray tell, how is Dominion going to provide a “computation” of its damages? Remember that hurt feelings are not a basis for damages for a corporation.

    Seems like more of a stunt than anything else. Not that I feel sorry for those involved (Giuliani seems to have lost it mentally and needs to retire.)

    1. I doubt the damages are $1.3 billion, but I would say that Guiliani’s claims against Dominion were certainly defamatory, a reasonable person could have believed them, and its reputation suffered as a result. On the merits, this is far from a frivolous lawsuit.

    2. Defamation actions allow for, inter alia, goodwill as special damages for corporations. This would be in addition to other economic damages as can be proven up by testimony, including loss of value of the corporation and loss of business due to the allegations (including in other markets).

      It’s somewhat peculiar that people are saying that these widely-spread, false allegation amount to “no harm, no foul.”

      1. Dominion likely had significant costs responding to these allegations, especially if some of their customers sought their assistance evaluating them.

        1. They claimed around a million dollars worth of out of pocket costs, according to one of today’s articles.

          1. That sounds awfully low to me.

      2. Except I did not say “no harm, no foul.” I asked what are the legally cognizable damages. And how Dominion plans to fulfill its Rule 26(a) obligation to provide a “computation” of its damages.

        In some kinds of cases, you can get away with punting on that. In many IP cases, your damages or disgorgement of profits depend upon how much infringing product the defendant sold. So you can reasonably say you need discovery before you provide a
        “computation.”

        I don’t see that here.

        They might be able to do it. But I am dubious. Thus far all I received is some general hot air about Rule 11, and they probably had some damages, but no substantive speculation to support it. (The $1.3 billion is an obvious gross exaggeration, but some pleading rules encourage that.)

        1. “I don’t see that here.”

          Because you didn’t read the Complaint.

          This is Dr. Ed territory. You’re better.

          1. Dr Ed is wondering if Giuliani can subponea Texas authorities and ask them to explain why they *banned* Dominion from all Texas elections. It is a matter of public record that they did, and that they did it because they didn’t consider Dominion to be secure — or something like that.

            Well, isn’t that admissible???

            1. No because under RICO laws the subpoena would violate HIPAA and Section 230.

              1. Well, the Trilateral commission could overrule that. Unless the Lizard People intervene.

                It’s complicated.

            2. Dr Ed is wondering if Giuliani can subponea Texas authorities and ask them to explain why they *banned* Dominion from all Texas elections. It is a matter of public record that they did, and that they did it because they didn’t consider Dominion to be secure — or something like that.
              Well, isn’t that admissible???

              It is already a matter of public record “why” Texas chose not to contract with Dominion, so no “subponea” [sic] need be utilized. Just a web browser. It is not, contrary to the fever swamps that you play in, because they found any wrongdoing by Dominion. If you were not so lazy and dumb, you could google and find the reports yourself, just as I did.

    3. how is Dominion going to provide a “computation” of its damages? Remember that hurt feelings are not a basis for damages for a corporation.

      I don’t know. Maybe they could point to lost business, for example. No doubt they know more about how all this has affected them than we do, and will be presenting that information.

      Offhand it seems sort of silly to say that they won’t be able to show any cognizable damages.

      1. Which I did not say. I said I was dubious.

        And what I pointed out is the requirements of Rule 26(a). Those can be onerous and have real teeth, if the judge has any spine. Many lawyers and many clients overlook this. They think, hey, the other guy did something outrageous, so sue. Today, federal courts say, that’s nice, but tell us right up front, in detail, the basis for your damages.

        Like you, I don’t know how they will meet their Rule 26(a) requirements. But I am willing to bet that the result will be a lot different from what is in the Complaint.

        1. “And what I pointed out is the requirements of Rule 26(a). Those can be onerous and have real teeth, if the judge has any spine.”

          Uh huh. They have to show how they calculated it. I have yet to see any bona fide attempt dismissed.

          Heck, the allegations in the complaint are already enough for most 26(a) conferences. If they actually get to the point of showing the full breakdown, that would be the cherry on the sundae.

          (And as someone who almost exclusively works on the defense side in federal court, having someone say that a complaint would be dismissed because of a 26(a) failure is … interesting? I’d certainly love it, but have yet to see it. At most, a command to do better and stop bugging the court is pretty much as good as you’re going to get.)

          1. Take a chill pill. You are making things up. I know you don’t get a complaint dismissed at the pleading stage because of Rule 26(a). But at some point they are going to have to comply, and then they will have to do more than what they have done.

            And the Complaint is not sufficient under Rule 26(a), sorry, that is not a computation. I have represented both sides in federal litigation. Those are allegations, not computations. Which is enough for now, but will not be enough very soon.

            1. “Take a chill pill. You are making things up.”

              Said the person who claimed, without even reading the complaint, that there couldn’t possibly be any damages so that this would probably be a Rule 11 case! Sure. Maybe I shouldn’t expect more from you than Dr. Ed?

              I’m guessing you didn’t actually read what I wrote, all-powerful person who has clearly “won” cases on Rule 26(a) and is now mysteriously invoking it? Good for you!

              1. I stand by my comments as written, not as you distort them. Reread and perhaps you will be educated.

                Now do you seriously think that the allegations of the Complaint suffice for a Rule 26(a) disclosure? If the plaintiff’s counsel simply cut and pasted them into their initial disclosures, that would be enough?

                I don’t think so, and if I were the defendants’ counsel, I would immediately move for an order requiring them to amend and comply with the rule.

                1. I don’t think so, and if I were the defendants’ counsel, I would immediately move for an order requiring them to amend and comply with the rule.

                  Denied. Next.

  5. There is an additional irony in all of this.

    Giuliani didn’t put these allegation in court documents because he knew they were false and didn’t want to deal with possible court sanctions.

    Instead, he just said the false statements publicly.

    However, if he refrained from the false public statements, and just put them in court documents, he likely could not have been sued … given that there are variations of either litigation privileges, or Noerr-Pennington, that would protect him.

    Kind of funny, if you think about it.

    1. Yes, it’s almost as if Giuliani isn’t actually a very good lawyer.

  6. Based on the press coverage (I haven’t read the 100+ pages of lawyer spew) this is almost as bad as the Kraken lawsuits and Giuliani’s lawyering. It’s primarily an abuse of the legal system to get publicity. But there may be a valid claim remaining after a rule 12(f) motion, so it’s not as bad.

    1. Like Loki said: “before anyone else writes more foolishness about damages, READ THE COMPLAINT.”

  7. Also, before anyone else writes more foolishness about damages, READ THE COMPLAINT.

    They break out the damages they are entitled to (compensatory) in the amount of $651,735,000.00.

    And they are also requesting the same amount, in addition, as punitive damages.

    Now, will they be able to prove up all of the compensatory damages? Probably not. Most of it (450-500 million) is in valuation – goodwill, resale value, etc., which is subject to all sorts of issues of proof and expert testimony. But it will be a lot greater than “nothing at all.”

    And while I generally dislike “Ima sue you for ONE BEELEEON DOLLARS” lawsuits, there is some basis for this. At least as a starting point.

    1. Just to help out, you can start at Section 97 to learn about some of the threats and so on. Then go to Section 135 to get a picture of financial damages.

    2. Question:

      Dominion have now sued two individuals for $1.3B. IANAL, but it would seem unreasonable for them to be able to collect it twice. Meanwhile, they are making noises about filing suits against others, probably for the same amount.

      What are the machinations of consolidating the (so far only) two suits? And what would be the strategy of filing individual suits against multiple defendants vs a single suit with multiple defendants?

      Interesting in hearing from actual attorneys as opposed to the Greek Chorus of Trumpists that hang out here. Thanks.

      1. but it would seem unreasonable for them to be able to collect it twice

        Could it be a strategy to set up a prisoner’s dilemma situation between the defendants?

      2. No they cannot collect the compensatory damages part of it twice. (Half). The amount is their damages. To the extent that each defendant is liable for essentially the same defamation, they would be jointly and severally liable for the whole amount, and entitled credits for what any co-defendant paid. Punitive damages would be separately assessed against each defendant based on the jury’s evaluation of their culpability. (For instance, pillow guy likely to get off easier than the lawyer defendants).
        I suspect that once all the suits are filed–and they seem to be in federal court–that they all might be consolidated in one federal district under multi-district litigation rules.

  8. I think Giuliani will have a solid defense with post-election forensic examination of some Dominion machines finding they had a huge tabulation error rate and voters account of their votes being switched, enough I think to show Giuliani had a reasonable basis for his allegations.

    1. You base this on what?

      1. Surely there’s a YouTube video or a FW FW FW FW FW email that clearly establishes that “fact”.

    2. Well sure, but that’s because you’re a fucking idiot.

    3. Gee, weren’t there at least 60 some lawsuits already decided on those matters, and found against?

    4. The only problem is that there weren’t any such errors, and votes cannot be “switched” by Dominion machines. This is not like the days of electronic voting with no paper trail in which someone can claim that he pressed Trump but it counted it for Biden. All Dominion machines do is turn a voter’s vote into a printed ballot, which is then scanned for tabulation. Those printed ballots are saved, and can be (and were!) recounted to assure that the tabulation is correct.

  9. Filed in DC. A Republican can’t get a fair trial in that city. You will get a jury filled with the only people who can’t get excluded from jury duty: angry DC African Americans who boil over with rage at how bad their lives are. They will have decided Giuliani is liable before hearing any witnesses or seeing any evidence. I worked for a company that was sued in DC and that was the dirty secret our attorney (a liberal Democrat) told us.

    1. Construing your comment as making a point about personal jurisdiction, I’d generally agree that US rules on personal jurisdiction are improperly generous, with the result that companies in particular can be sued just about anywhere. However, in this case the plaintiff alleges that Giuliani

      caused tortious injury by acts committed within the District of Columbia, including and specifically by making false and defamatory statements about Dominion from within the District of Columbia on Twitter, on his podcast and radio shows, on televised media appearances, and at the “Save America” rally before the storming of the U.S. Capitol on January 6, 2021

      …which is good enough for me.

      1. Was he physically in DC? Where is the radio show out of?

        1. “at the “Save America” rally before the storming of the U.S. Capitol on January 6, 2021”

          Probably on Mars or some such place.

        2. I don’t know why you bother. You embarrass yourself constantly.

        3. It´s called the single publication rule. If the show is broadcast in D.C., that should be sufficient for the exercise of personal jurisdiction.

  10. Not much interested in these suits but am mildly curious if a corporation can be a “public figure” for Sullivan purposes?

    Dominion does market to public officials and elections are a matter of public concern.

    But I don’t have an opinion, just curious.

    1. “Not much interested in these suits but am mildly curious if a corporation can be a “public figure” for Sullivan purposes?”

      Yes. I’m not sure if SCOTUS has said it but most courts (that I’m aware of) say there should not be a distinction between individuals and corporations for purposes of determining whether the plaintiff is a “public figure”. The courts that think there is a distinction, have said that corporations always have to prove actual malice, since the protected interests in Gertz for instance (individual reputation) would not apply to corporations at all.

      For a brief discussion by a state supreme court in favor of no distinction, see Vegod Corp. v. ABC 603 P.2d 14 (Cali. 1979). I think there’s a lot of law and academic writing on this, that it’s all over the place, but the general consensus is that corporations can be a public figure for Sullivan purposes.

      1. I think it’s pretty clear that Dominion is a public figure, at least in this context. You can’t play a key role in an election without being a public figure. Of course in this case it doesn’t matter, because Dominion is asking for punitive damages so it has to prove actual malice per Gertz even if it weren’t a public figure.

  11. I’m curious about a couple of things.

    1. What is the deadline for Giuliani and Powell to respond?

    2. In a situation like this, where Dominion is suing at least two, possibly ultimately more, individuals for essentially the same thing, can it strike a “plea bargain” with a defendant, agreeing to a gentle settlement in exchange for testimony against other defendants?

    3. How would damages be divided among defendants? Suppose they win a $1.3B judgment against Giuliani, for example. Unlikely, I know, but then again he’s unlikely to be able to pay any large amount. Can they get a similar judgement against Powell, or is it reduced by whatever Rudy gets hit for?

    1. 1: Should he 28 days from service of the complaint. But there might be a stipulated extension of time to respond/they can move for an extension. I assume they’ll move to dismiss instead of answer.
      2. I can’t think of any reason that they can’t.
      3. Should be joint and several: i.e. each defendant is on the hook for the same amount and the plaintiff can go after whoever to enforce the judgment. But there won’t be double recovery. If Rudy somehow has 1.3 billion in a bank account and that’s executed on to satisfy the judgment, then they can’t get more from Powell/Lindell etc. But the defendants can then seek contribution from each other, with cross-claims or later litigation.

  12. I do not know whether Rudy G carries insurance that obligates the carrier to defend and potentially indemnify a defamation judgment, but if he does, the policy likely requires his cooperation. Recall that as attorney, Rudy G is an agent acting for a principal, who in this case was Donald Trump. Suppose as a matter of state tort law an agent who commits a tort on behalf of a principal is entitled to indemnification by the principal in whole or in part. Again, that may not be the case, and would matter only if there were insurance. So here’s the question — Rudy G. has insurance, can his carrier require him to agree to implead Trump as a third party defendant on pain of loss of coverage? Inquiring minds want to know.

    1. I bet it means Trump gets deposed, a deposition that will be well worth the price of admission.

    2. If he were to implead Trump, would’t Trump then have a malpractice claim against him?

      If I hire an attorney and my attorney (agent or not) libels someone and I wind up liable for it, isn’t that a textbook example of malpractice — an attorney is supposed to know better than to do it.

      I don’t see how any insurance that Giuliani carries could force Trump to waive a malpractice claim against Giuliani — and hence should Giuliani’s insurance company go after Trump, they’re only creating a second suit against them where Trump seeks to recover the same back under the auspices of malpractice.

      Now what I wonder is if an insurance company can do is often done to doctors (and nurses) in medical malpractice suits — make him admit fault as part of a settlement deal and tell him that he is on his own (without insurance) if he doesn’t accept it.

      It’s the same reason why I didn’t sue UMass — they would have made a low 5-figure settlement offer along with making me sign a nondisclosure agreement and my attorney would have forced me to accept it. And I know several medical professionals who did NOT commit malpractice as a reasonable person (i.e. *me*) would view it. But the insurance company considered it simpler to settle it than fight it — and the lawyer preferred to grab his third of something now and go chase the next ambulance rather than litigate.

      In one case, mother and boyfriend de jour had an infant in the ICU. They were literally picking up and tossing the child (much to his amusement) and needless to say, this adversely affected the IV in the infant’s arm. Was this the fault of the nurse?

      It gets better — mother overdosed before she could even receive the settlement money….

      1. Now what I wonder is if an insurance company can do is often done to doctors (and nurses) in medical malpractice suits — make him admit fault as part of a settlement deal and tell him that he is on his own (without insurance) if he doesn’t accept it.

        This is a thing that doesn’t happen.

          1. I will defer to your established expertise as a professional maker up of stories.

  13. Public figures in a dispute about a subject of public interest. Zero chance of prevailing under the NY Times doctrine.

    The plaintiff lawyers should be reported for their violations of the rule against filing claims with no merit, under the Rules of Conduct (3.1, and 3.4 (d)) and under the Rules of Federal Civil Procedure (11 (b) (1)).

    1. And you should be reported for not taking your meds again.

      1. Your mean spirited and cruel remark, mocking the mentally ill, really hurt my feelings. And, yes, my dick is tiny too. Please, do not bring that up either. You need to apologize for your ableist insult.

        1. You’re right; I should have limited myself to saying that your comment was idiotic.

      2. Why do you have to crap up this forum with remarks like that, childish personal attacks?

        1. True, we should be regaling in this one David Behar post that is not dripping with anti-semitism

    2. How do you know that Giuliani doesn´t meet the actual malice standard of Times v. Sullivan and its progeny?

      1. That is an impossible mind reading hurdle in the US. They had a better chance suing in England. There, defamation will net $50000.

  14. SLAPP. The suit, the process, is the punishment, and Dominion is suing, and for such large amounts, to discourage this kind of investigation or claim by others.

    There IS evidence of vulnerability to fraud in these machines.

    And, there is controversy about what analysts have found in these machines, and that in some cases , Dominion denies; for example, the weighted race feature.

    Discovery will be interesting.

    Dominion is to Giuliani as Mann is the Steyn.

  15. I hope Giuliani, et.al., have issued letters asking Dominion and many elections officials and precincts to preserve evidence. And, if 2020 machine logs have already been deleted, as has been reported, what does that say of the situation?

    1. Wow….

      Dominion may regret filing this suit…

    2. What will you guys say if this lawsuit goes off and Giuliani loses? Will that be proof that you guys are wrong about what you think Dominion found?

      1. Trump hating judge and biased DC jury.

        1. Ok Bob, you may SAY that but I doubt even you will be silly enough to believe it.

    3. Isn’t destruction of evidence to be interpreted in the most adverse light by the court?

    4. Giuliani should depose these three Democratic Senators and one Dem. Congressman:

      Warren, Kloobuchar, Wyden, and Pocan.

      They signed a letter in Dec., 2019, complaining, among other things, of Dominion machines switching votes.

      https://www.warren.senate.gov/imo/media/doc/H.I.G.%20McCarthy,%20&%20Staple%20Street%20letters.pdf

      1. They did no such thing. Not sure whether you didn’t read it, or whether you’re deliberately misrepresenting things. Also, I think you’re a bit confused about how litigation works; you don’t get to depose random non-parties because you read a newspaper article about them.

        1. What are you talking about, saying “they did no such thing?” You can’t just lie about things and get away with it. Go to the link I supplied and SEE THEIR SIGNATURES, and read where they talk about Dominion switching votes. Geez!

          1. Did you read the letter, Publius?

            It seems doubtful, given your claims about it.

  16. I just want to say that I would pay money to be a fly on the wall for Guiliani’s deposition. Now that will be something well worth attending.

    If Guiliani has any sense he’ll settle the case before he gets deposed, but when has he displayed having sense?

    1. What if Giuliani actually *has* something on them?

      ANYTHING is possible….

      1. That would mean that Giuliani withheld that information from the President and the public when it could have made a difference in the election, hiding it instead for his own defamation defense. That would mean Giuliani was part of the deep state all along, and feigned incompetence and discretion in order to damage the President’s ability to overturn an actual fraud committed by Dominion. In other words your theory is stupid.

      2. The most likely situation is that he has some clues, but nothing solid. No smoking gun. That seems to be the case, from the forensic investigation and and the various things. There’s nothing near enough to overturn the election, but it’s enough that you can rationally draw the conclusion that there’s a severe problem. The kraken might be missing tentacles, but it’s not fictional.

        That would get us to the point that Guliani can’t prove that they did anything wrong in a court of law, but he wasn’t lying, just filling in the gaps using rhetoric. Given that everyone involved is a public figure, they have to prove that he actively knew that his claims were false and did them anyway. That’s near-impossible in the best of circumstances.

        1. The most likely situation is that he has bupkes.

    2. FWIW, it’s “Giuliani,” not Guiliani.”

      It has become part of the Democratic/liberal/progressive narrative that Giuliani is without sense, stupid, senile, etc. I want to say that this is just part of the Alinsky playbook, and has been used consistently against ALL those opposed to their positions, along with “everyone against us is Hitler.”

      I think Rudy has done a pretty good job, was an excellent and successful prosecutor, and an excellent mayor.

      Why don’t you say something on the merits rather than calling people names?

      1. “Why don’t you say something on the merits rather than calling people names?”

        Accusing someone else of being senile is at least as substantive as “part of the Alinsky playbook”.

      2. I didn’t say he was senile. I said he lacked common sense, which he very clearly does. And his deposition will be well worth the price of admission because he’s going to have to explain the blatant falsehoods he repeatedly made.

        But NtoJ is right; the raw silliness in invoking Allinsky pretty much disqualifies you from being taken seriously.

        1. Given Alinsky is the evil mastermind behind all things Left, this is what I find strange : For every one mention of his name by a Lefty there’s probably a thousand from the Right. Hell, I admit finally looking up the guy’s name only after the fourth or fifth I heard his ghost controls all I say or do.

          Someone willing to devote a lifetime to the effort should categorize & catalog all the Right-wing fetishes, of which Alinsky is one of the more bizarre. The collection would probably run to a dozen volumes at least, since today’s Right rivals the most primitive stone-age tribe in all its voodoo tics and totem obsessions.

        2. Do you think that it’s closer to 1 in 10,000 or 1 in 100,000? That is, mentions of the “Alinsky playbook” by conservatives vs. actually having read anything Alinsky wrote?

          1. I guess the irony of using Alinsky techniques to attempt to discredit those who assert the employment of Alinsky techniques is lost on you guys.

            Krychek_2, your reading comprehension is poor. I didn’t say you said he was senile.

            grb, can you possibly exaggerate any more?

            1. Actually, it’s the Gingrich playbook, from his GOPAC days.

  17. I’m just interested to see the distinction made between this and the Covington case. If you don’t recall, a bunch of media companies tried to get a bunch of kids killed (and almost did get them expelled) by painting them as horrifically evil people while they were just standing there. When a libel suit came forth, a judge bent over backwards to dismiss the case in a preliminary motion. Most prominent in my recollection, he stated that the word “swarmed” was opinion and could not be defamatory in any circumstances. It was so absurd that he actually granted a motion for reconsideration after the public outrage.

    These kids, who by any definition are quintessential private citizens, was only granted justice due to the public outcry despite the case being a textbook example.

    On the other hand, as a public entity, Dominion doesn’t just have to prove Guiliani was wrong, but that he was knowingly lying. This is generally a near-impossible standard unless someone goes on a supervillain rant. However, I can’t help but suspect that they will get far more traction in the courts.

    1. The big difference here is that Giuliani told a completely different story to the federal courts than he did to the media. The best way to prove someone knowingly lied is that he told a very different story to someone else.

      When I was doing counterfeiting cases, we would always ask for purchase invoices from the defendant, so he would show us what his expenses are. We would then subpoena their customs broker (who are required to maintain very thorough records). It often happened that the very same invoice for the very same goods appeared in both files, except the one in the customers broker files showed much lower charges. The same shipment of fake “Gucci” handbags that one the defendant’s invoice showed he paid $50,000, the custom broker version showed he paid only $25,000. This was done, of course, to cheat Customs, since those are calculated as a fixed percentage of the product sale price.

      And it was great evidence for the case. If the defendant was willing to defraud Customs, he was certainly willing to defraud his customers by selling fakes.

      So that is Giuliani’s problem. He told the truth to multiple courts, and then lied to the American public. That strongly supports the contention that he is a deliberate liar.

  18. Giuliani is Trump’s lawyer. Trump never pays a bill, according to his Art of the Deal. If Giuliani loses he can offer Trump receivables in settlement.

    1. He can offer whatever he likes.

  19. When it comes to damages I wonder if the rampant censorship of anything election fraud we saw Big Tech, et. al. engage in will limit that to just about nothing. The media reconciled any claims Dominion (or other fraud) to nothing more than baseless conspiracy theory. How much damage can you suffer from someone repeating information that has been deemed a lie by just about anyone with a megaphone to the public and the public largely believing any claims are utterly false?

    1. That “largely” is doing a whole lot of work there, considering how many people commenting on this very story appear to give credit to the alleged Dominion conspiracy. Again, how many Republican state officials do you think are going to be signing on to use Dominion to run their next election cycle?

      1. But the same people have told us anyone who talks about Dominion and voter fraud are just bat shit crazy conspiracy theorists. People who no one takes seriously produce little in the way of damage to reputation. And it is hard to paint these people are having a sophisticated two sides. One that is just crazy and ought to be ignored while the other side needs to be taken seriously.

        1. They are bat shit crazy conspiracy theorists. They are also a large portion of the GOP base. It is much harder to say no-harm-no-foul while on the same board people are ranting about CIA raids and crowing about discovery requests.

  20. Dominion should lose all of their government contracts, on the notion that private companies should not be counting votes using computer code that is proprietary to them and cannot be reviewed by the public.

    Aside from this, there are numerous weaknesses in their systems which have been documented and detailed long before the 2020 election, by governments that conducted a responsible review of their proposals before declining to engage their services.

    Not a single government contract lost on this type of basis will be a result of any defamatory statements about fraud and corruption. Therefore such lost contracts won’t be the the basis of recoverable damages. Rather, they will need to show that the lost contracts were due to concerns over widespread systemic fraud. That seems doubtful, notwithstanding whatever billows of smoke will be blown about scattered statements here and there.

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