Smartmatic USA Corp. et al v. Lindell et al

Filing 52

ORDER denying #18 Motion to Dismiss/General; denying #23 Motion to Dismiss/General (Written Opinion). Signed by Judge Wilhelmina M. Wright on 9/19/2022. (DAC)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Smartmatic USA Corp., Smartmatic
International Holding B.V., and SGO
Corporation Limited,

Case No. 22-cv-0098 (WMW/JFD)

Plaintiffs,
ORDER
v.
Michael J. Lindell and My Pillow, Inc.,
Defendants.
Before the Court are Defendants’ motions to dismiss. (Dkts. 18, 23.) Plaintiffs
oppose Defendants’ motions. For the reasons addressed below, the Court denies the
motions.
BACKGROUND
Plaintiffs SGO Corporation Limited, Smartmatic International Holding B.V., and
Smartmatic USA Corp. (collectively, Smartmatic) are a parent company and its
subsidiaries, which provide election technology, support and services. Smartmatic
provided election technology, support and services to Los Angeles County, California,
during the 2020 United States election.

Defendant Michael J. Lindell, a political

commentator and resident of Minnesota, is the founder and CEO of Defendant MyPillow,
Inc. MyPillow is a Minnesota manufacturing company with its principal place of business
in Chaska, Minnesota.

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Los Angeles County engaged Smartmatic for the use of Smartmatic’s technology,
software, equipment and services to count and report the votes cast in Los Angeles County
in the 2020 election. Smartmatic did not provide election support to any other United
States county or state during the 2020 election. Los Angeles County allegedly experienced
no serious problems during the 2020 election, and no questions were raised about security
or the reliability or auditability of the results in Los Angeles County. Between the 2016
presidential election and the 2020 presidential election, there was no material change in
voting patterns in Los Angeles County.1 President Joe Biden and Vice President Kamala
Harris won the United States general election in November 2020, securing 306 electoral
votes. President Donald Trump and Vice President Mike Pence secured 232 votes and lost
the election.
Smartmatic alleges that, beginning in 2016, Lindell aligned himself with President
Trump and his allies and eventually secured President Trump’s endorsement of Lindell’s
MyPillow products.

President Trump’s support of MyPillow and Lindell increased

Lindell’s fame as well as the success of MyPillow. According to Smartmatic, when
President Trump lost the 2020 election and began to contest its result, Lindell began to
publicly promote the false narrative that the 2020 election was stolen, announcing that the
voting machines had been hacked and rigged in favor of President Biden and Vice
President Harris. Lindell claimed to have scientific, mathematical and forensic “100%

1

In 2020, the Democratic candidates for President and Vice President won more than
71 percent of the vote in Los Angeles County. In 2016, the Democratic candidates for
President and Vice President won more than 72 percent of the vote in Los Angeles County.
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proof” that the voting machines were used to perpetrate election fraud. Lindell created and
published a series of documentary videos that purported to provide evidence and facts
substantiating his theory that the voting technology of Smartmatic and two other election
technology companies, ES&S and Dominion, stole the 2020 election. Lindell advertised
and provided election-related promotional codes for his products to viewers and listeners
during internet, television and radio show segments in which Lindell allegedly defamed
Smartmatic and promoted his documentaries. Lindell also sponsored a “March for Trump”
bus tour to twenty cities promoting the January 6, 2021 rally in Washington, D.C., during
which Lindell rode in a bus bearing the MyPillow logo and endorsed the false narrative
that former President Trump won the 2020 election. Lindell held an in-person and livestreamed “Cyber Symposium” from August 10, 2021, to August 12, 2021, during which
he purported to uncover additional evidence that election voting machines—including
Smartmatic products—rigged the 2020 election.
Count I of the complaint alleges that Lindell and MyPillow defamed Smartmatic
when Lindell published false and inaccurate statements regarding Smartmatic’s
involvement in the 2020 election and election hacking conspiracy theories. Count II
alleges that Lindell’s false and defamatory statements constitute deceptive trade practices,
in violation of Minnesota Statutes Section 325D.44(8), and that Lindell is MyPillow’s
agent. Lindell moves to dismiss Smartmatic’s complaint, arguing that Smartmatic fails to
plead its defamation claim adequately and that Smartmatic’s claim for deceptive trade
practices fails because it mirrors Smartmatic’s defamation claim and pertains to statements

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made by Lindell in his personal, rather than professional, capacity. MyPillow separately
moves to dismiss Smartmatic’s complaint, arguing that MyPillow is shielded by the First
Amendment to the United States Constitution, MyPillow did not make any statements
about Smartmatic, and Lindell’s statements cannot be imputed to MyPillow.
ANALYSIS
A complaint must be dismissed if it fails to state a claim on which relief can be
granted. Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, the complaint must
allege sufficient facts that, when accepted as true, state a facially plausible claim to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When determining whether a complaint states
such a claim, a district court accepts as true all factual allegations in the complaint and
draws all reasonable inferences in the plaintiff’s favor. Blankenship v. USA Truck, Inc.,
601 F.3d 852, 853 (8th Cir. 2010). The factual allegations need not be detailed, but they
must be sufficient to “raise a right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007).

A plaintiff, however, must offer more than “labels and conclusions” or a

“formulaic recitation of the elements of a cause of action.” Id. at 555. Legal conclusions
that are couched as factual allegations may be disregarded. See Iqbal, 556 U.S. at 678–79.
The Court addresses, in turn, Smartmatic’s defamation claim, MyPillow’s alleged
vicariously liability for Lindell’s statements and Smartmatic’s deceptive-trade-practices
claim.

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I.

Defamation

The parties dispute whether Smartmatic alleges facts sufficient to state a defamation
claim against Lindell and MyPillow. Defendants contend that, because Smartmatic is a
public figure, it must demonstrate actual malice to state a defamation claim. Smartmatic
disagrees.
To state a defamation claim, a plaintiff must allege that the defendant made a
statement that was false, the statement was communicated to someone besides the plaintiff,
and the statement “tended to harm the plaintiff’s reputation and to lower [the plaintiff] in
the estimation of the community.” Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406,
410 (Minn. 1994). To recover damages for a defamatory falsehood, a public figure also
must prove that the defamatory statement was made with “actual malice.” New York Times
Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); Curtis Publ’g Co. v. Butts, 388 U.S. 130, 162
(1967) (Warren, C.J., concurring in result) (extending the New York Times standard to
“public figures”). Three categories of public figures exist. See Gertz v. Robert Welch, Inc.,
418 U.S. 323, 345 (1974). The first category is “involuntary public figures,” which pertains
to those who “become a public figure through no purposeful action of [their] own.” Id.
The second category is “all purpose[ ]” public figures, which pertains to those who “have
assumed roles of especial prominence in the affairs of society.” Id. This category
“contain[s] celebrities and prominent social figures.” Jadwin v. Minneapolis Star & Trib.
Co., 367 N.W.2d 476, 484 (Minn. 1985). The third category is limited-purpose public
figures, which pertains to people who “have thrust themselves to the forefront of particular

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controversies in order to influence the resolution of the issues involved.” Gertz, 418 U.S.
at 345. Under Minnesota law, a corporation is a public figure and must “show that a
statement was made with actual malice to establish a defamation.” Nw. Airlines, Inc. v.
Astraea Aviation Servs., Inc., 111 F.3d 1386, 1393 (8th Cir. 1997). Here, as Smartmatic
comprises three corporate entities, Smartmatic is a public figure under Minnesota law.
A public figure must prove, by clear-and-convincing evidence, that the defendant
made the allegedly defamatory statement with actual malice—“that is, with knowledge that
it was false or with reckless disregard of whether it was false or not.” New York Times,
376 U.S. at 279–80; accord Gertz, 418 U.S. at 342. If the contested statements involve
matters of public concern, a plaintiff also must present “evidence of actual harm to
reputation.” Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 879 (Minn. 2019).
Speech involves “matters of public concern when it can be fairly considered as relating to
any matter of political, social, or other concern to the community or when it is a subject of
legitimate news interest; that is, a subject of general interest and of value and concern to
the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal citations and quotation
marks omitted). That the statement is inappropriate or controversial is irrelevant to the
determination of whether it deals with a matter of public concern. Rankin v. McPherson,
483 U.S. 378, 387 (1987). Here, Smartmatic challenges statements that Lindell made
pertaining to purported hacking of the 2020 election results. The invalidity of a presidential
election as a result of hacking is a matter of public concern. Smartmatic must, therefore,

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allege both malice and actual reputational harm to state a defamation claim. The Court
addresses, in turn, each element of Smartmatic’s defamation claim.
A.

False Statements

Smartmatic alleges that Lindell made false statements about Smartmatic’s
involvement in, and purported interference with, the 2020 election. Defendants argue that
Lindell never believed his statements to be false and that his statements are not inherently
improbable.
“A statement or communication is false if it is not substantially accurate,” and a
“statement or communication is not substantially accurate if its essence is not true.”
4 Minn. Dist. Judges Ass’n, Minnesota Practice Jury Instruction Guides, Civil, CIVJIG
50.25 (6th ed. 2014); accord LeDoux v. Nw. Publ’g, Inc., 521 N.W.2d 59, 67 (Minn. Ct.
App. 1994) (explaining that a statement may be false if it is “not substantially accurate”);
Statement, Black’s Law Dictionary (11th ed. 2019) (defining a false statement as “[a]n
untrue statement knowingly made with the intent to mislead”). Smartmatic alleges that
Lindell made false statements about Smartmatic from February 2021 through June 2021,
suggesting that: (1) Smartmatic was widely used in the 2020 election, (2) Smartmatic
conspired with other election technology companies, (3) Smartmatic stole the 2020
election, (4) Smartmatic’s technology or software was compromised by the People’s
Republic of China, (5) the Smartmatic technology used in the 2020 election was connected
to the internet to enable hacking, (6) Smartmatic is involved in a widespread criminal
enterprise, and (7) Smartmatic’s technology was designed to steal elections.

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Defendants contend that Smartmatic does not sufficiently plead falsity because
Smartmatic does not allege sufficient facts to support the allegation that Lindell doubts the
veracity of his statements and that Lindell’s statements are inherently improbable. But the
complaint relies on a wealth of information that was publicly available at the time Lindell
made his allegedly defamatory statements and that contradicts Lindell’s statements. For
example, the complaint cites to individual states’ election reports and audit reports, media
reporting, the websites of election technology companies, testimony and public statements
by election officials and election security experts, election reports from monitoring
organizations, and litigation brought by Smartmatic against other alleged defamers in
February 2021. The Court concludes that Smartmatic has alleged sufficient facts to support
its allegation that Lindell’s statements were false.2
B.

Communication to Third Parties

Although the parties dispute the falsity of Lindell’s statements, the parties do not
dispute that the challenged statements were communicated to members of the public and
entities other than Smartmatic.

Smartmatic alleges that Defendants promulgated

defamatory statements at a January 5, 2021 “Save the Republic” rally at the United States

2

In the complaint, Smartmatic references and relies on publicly available
information. Defendants do not object to the authenticity of this information. The Court,
therefore, considers this information. See Dittmer Props., L.P. v. Fed. Deposit Ins. Corp.,
708 F.3d 1011, 1021 (8th Cir. 2013) (recognizing that courts may consider “matters
incorporated by reference or integral to the claim, items subject to judicial notice, matters
of public record, orders, items appearing in the record of the case, and exhibits attached to
the complaint whose authenticity is unquestioned” in ruling on a Rule 12(b)(6) motion to
dismiss (internal quotation marks omitted)).
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Capitol, in a defamatory documentary video series about the 2020 election, during at least
thirteen media appearances, and through an in-person and livestreamed “Cyber
Symposium” in August 2021. Therefore, Smartmatic has alleged sufficient facts to support
its allegation that Lindell’s defamatory statements were communicated to parties besides
Smartmatic.
C.

Actual Malice

The parties disagree as to whether Smartmatic has alleged facts sufficient to
establish that Defendants acted with “actual malice” in defaming Smartmatic.
A corporation alleging defamation based on a statement addressing a matter of
public concern must prove that the defendant made the defamatory statement with “actual
malice.” Maethner, 929 N.W.2d at 879. The “actual malice” standard requires a plaintiff
to prove that a defamatory statement was made “with knowledge that it was false or with
reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279–80.
To defame with reckless disregard, “the defendant must have made the false publication
with a high degree of awareness of . . . probable falsity, or must have entertained serious
doubts as to the truth of [the defendant’s] publication.” Harte-Hanks Commc’ns, Inc. v.
Connaughton, 491 U.S. 657, 667 (1989) (internal quotation marks and citations omitted);
accord St. Amant v. Thompson, 390 U.S. 727, 732 (1968) (concluding that “recklessness
may be found where there are obvious reasons to doubt the veracity” of the information);
Nunes v. Lizza, 12 F.4th 890, 900–01 (8th Cir. 2021) (explaining that “[a] speaker who
repeats a defamatory statement or implication after being informed of its falsity does so at

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the peril of generating an inference of actual malice” and that such republication “may be
treated as evidence of reckless disregard” (internal quotation marks omitted)).
Recklessness also may be found when “a story is fabricated by the defendant” or “is the
product of [the defendant’s] imagination.” St. Amant, 390 U.S. at 732.
Here, Smartmatic alleges that Lindell knew the falsity of his claims about
Smartmatic, Smartmatic’s involvement in the 2020 election, the operation of Smartmatic
technology, the hacking of Smartmatic technology, and Smartmatic’s participation in a
conspiracy to steal the 2020 election.

Smartmatic alleges that publicly available

information contradicted Lindell’s statements and those made by Lindell’s docuseries
guests. Smartmatic cites various sources of information disproving Lindell’s statements,
including individual states’ election reports and audits, media reports, the websites of
election technology companies, the testimony and public statements of election officials
and election security experts, election monitoring organizations’ reports, and litigation
brought by Smartmatic against other alleged defamers in February 2021. Smartmatic
alleges that this publicly available information contradicts Lindell’s statements that
Smartmatic’s election technology was connected to the internet and deployed in locales
outside Los Angeles County. And, according to Smartmatic, this publicly available
information establishes that Smartmatic and its competitors are separate companies, that
the 2020 election was secure, and that there was no basis to believe that hacking, fraud or
rigging had occurred.

Smartmatic also alleges that Defendants continued to make

defamatory statements about Smartmatic even after receiving contradictory information,

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including retraction letters Dominion sent to Lindell and a copy of the February 4, 2021
lawsuit that Smartmatic filed against other proponents of election interference theories.
Smartmatic contends that Lindell knew of and/or purposefully avoided this prevalent,
publicly available information that refuted Lindell’s false statements about election
interference and Smartmatic. Smartmatic also alleges that Lindell made and promoted his
defamatory statements for his own profit. For example, Smartmatic alleges that on several
occasions Lindell told audiences to purchase MyPillow products after making claims of
election fraud and supplying audiences with MyPillow promotional codes related to
Lindell’s election-hacking theories.
Lindell counters that Smartmatic has failed to allege actual malice because Lindell
has never expressed doubt as to the truthfulness of his challenged statements, Lindell’s
statements were not inherently improbable, Lindell has relied on publicly available
information, and some voting machines have flaws.3 And Lindell contends that allegations
of a defendant’s ill will or profit motive, without more, do not satisfy the actual malice
standard. Lindell’s arguments, however, address the merits of the case and not whether
Smartmatic has alleged a viable cause of action. On a motion to dismiss, the court must
construe the facts in the light most favorable to the non-moving party. Blankenship, 601
F.3d at 853. Construing the facts in the light most favorable to Smartmatic, the Court
concludes that Smartmatic has alleged facts sufficient to suggest that Lindell knew or

3

Most of the sources to which Defendants cite appear to be generalized commentary
about the weakness of voting machines and allegations of interference in prior elections
rather than evidence of interference with the 2020 election.
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should have known that his statements were false and acted with actual malice in promoting
the challenged statements.
D.

Actual Reputational Harm

Defendants do not dispute Smartmatic’s claim that Lindell’s statements have
harmed Smartmatic. When a defendant’s defamatory remark pertains to a matter of public
concern, the plaintiff must “present[ ] evidence of actual harm to reputation.” Maethner,
929 N.W.2d at 879. Here, Lindell stated that Smartmatic was one of several election
technology companies that rigged the 2020 election, which caused people to believe that
Smartmatic’s technology could not be trusted.

Smartmatic alleges that Lindell’s

defamatory statements made Smartmatic’s name and brand synonymous with election
fraud in the minds of members of the public and government officials. Smartmatic also
alleges that, as a result of Lindell’s defamatory remarks, Smartmatic’s officers and
employees have been threatened and the company has expended over one million dollars
on public relations, crisis management, cybersecurity, and employee retention and
recruitment efforts. Smartmatic alleges that its business depends on its reputation for
safety, accuracy and auditability, and that Lindell’s defamatory statements have tarnished
Smartmatic’s reputation. Construing the facts in the light most favorable to Smartmatic,
and recognizing that the parties do not dispute Smartmatic’s reputational harm, the Court
concludes that Smartmatic has alleged facts sufficient to support a claim of reputational
harm resulting from Lindell’s defamatory statements.

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For these reasons, the Court concludes that Smartmatic has alleged sufficient facts
to support a defamation claim. The Court, therefore, denies Defendants’ motions to
dismiss Smartmatic’s defamation claim.
II.

Vicarious Liability

The parties disagree as to whether Smartmatic has adequately alleged that MyPillow
is vicariously liable for Lindell’s defamatory statements. Smartmatic alleges that Lindell
used the platform he gained making defamatory statements about Smartmatic as a means
for promoting MyPillow such that MyPillow should be held vicariously liable for Lindell’s
defamation. MyPillow maintains that Smartmatic fails to allege that Lindell made the
defamatory remarks in the scope of Lindell’s employment duties and in furtherance of
MyPillow’s business.
The doctrine of respondeat superior is a common-law doctrine under which an
employer may be vicariously liable for the torts of an employee committed within the
course and scope of employment. Urban v. Am. Legion Dep’t. of Minn., 723 N.W.2d 1, 4
(Minn. 2006); Semrad v. Edina Realty, Inc., 493 N.W.2d 528, 535 (Minn. 1992).
Defamation is a tort. See Ferrell v. Cross, 557 N.W.2d 560, 562 (Minn. 1997). A
corporation can be held liable for defamatory statements made by the corporation’s
employees. See, e.g., Cognex Corp. v. VCode Holdings, Inc., No. 06-1040 (JNE/JJG),
2008 WL 2113661, at *36 (D. Minn. May 19, 2008) (denying summary judgment on
business defamation claim based on defendant’s employee’s false statements about
plaintiff corporation). Courts will impose liability when “there is some connection between

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the tort and the business such that the employer in essence assumed the risk when it chose
to engage in the business.” Hagen v. Burmeister & Assocs., Inc., 633 N.W.2d 497, 504
(Minn. 2001). But “[a] plaintiff need not prove that an employer actually foresaw that the
particular employee would commit the particular tortious act.” Hartford Fire Ins. Co. v.
Clark, 727 F. Supp. 2d 765, 772 (D. Minn. 2010). Instead, a plaintiff merely must show
that “an employee’s conduct is not so unusual or startling that it would seem unfair to
include the loss resulting from it among other costs of the employer’s business.” Hagen,
633 N.W.2d at 505.
Lindell, the CEO of MyPillow, intentionally promoted MyPillow while allegedly
defaming Smartmatic in media and other public appearances. Lindell used the MyPillow
logo during media appearances in which he allegedly defamed Smartmatic. During these
appearances, Lindell promoted the MyPillow business and provided audiences with
promotional codes to use when buying MyPillow products. The MyPillow promotional
codes Lindell relayed to audiences used words and phrases that correlated to Lindell’s
allegedly defamatory statements (e.g., “FightforTrump” and “Proof”). Riding a bus that
bore the MyPillow logo, Lindell sponsored a twenty-city “March for Trump” bus tour to
promote the January 6, 2021 rally in Washington, D.C., the false narrative that President
Trump had won the 2020 election and the allegation that the 2020 election was hacked. In
doing so, Lindell expressly associated his defamatory statements with the MyPillow brand.
MyPillow did not distance itself from Lindell’s statements. Indeed, MyPillow associated
itself with Lindell’s bus tour by having its logo emblazoned on Lindell’s bus, and MyPillow

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provided Lindell with promotional codes to relay to audiences during his appearances. The
Court, therefore, concludes that Smartmatic’s allegations state a plausible claim that
MyPillow may be vicariously liable for Lindell’s actions. For this reason, the Court denies
MyPillow’s motion to dismiss on the issue of vicarious liability.
III.

Deceptive Trade Practices

Defendants move to dismiss Smartmatic’s claim under the Minnesota Deceptive
Trade Practice law (MDTPL), arguing that Smartmatic’s MDTPL claim is impermissibly
duplicative of Smartmatic’s defamation claim. Lindell also argues that the MDTPL does
not apply to him because he made the allegedly defamatory statements as part of “personal
activities.” Smartmatic disagrees.
Under the MDTPL, “[a] person engages in a deceptive trade practice when, in the
course of business, vocation, or occupation, the person . . . disparages the goods, services,
or business of another by false or misleading representation of fact.”

Minn. Stat.

§ 325D.44, subdiv. 1(8). A court that finds that a defendant violated the MDTPL may
grant injunctive relief and award costs and attorneys’ fees. Minn. Stat. § 325D.45. The
MDTPL expressly contemplates that conduct might be actionable as both a common law
tort and under the MDTPL by providing relief “in addition to remedies otherwise available
against the same conduct under the common law.” Minn. Stat. § 325D.45, subdiv. 3;
accord US Dominion, Inc. v. Powell, 554 F. Supp. 3d 42, 65 (D.D.C. 2021).
Here, Smartmatic alleges that Lindell disparaged Smartmatic’s goods, services and
business through Lindell’s false and misleading representations of fact regarding

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Smartmatic and the 2020 election. Smartmatic alleges that Lindell acted in his capacity as
CEO and spokesperson for MyPillow when Lindell made these false statements.
Smartmatic further alleges that Smartmatic has suffered irreparable harm and will continue
to suffer such harm as a result of Lindell’s false statements. As addressed above,
Smartmatic has alleged sufficient facts to support Smartmatic’s claim that Lindell’s
statements were made, in part, to promote MyPillow and that MyPillow is vicariously liable
for those statements. The Court concludes that Smartmatic’s allegations, accepted as true,
also are actionable under the MDTPL. Because the MDTPL expressly contemplates that
a plaintiff may pursue claims under both the MDTPL and the common law, Smartmatic’s
MDTPL claim is not impermissibly duplicative of its defamation claim.
ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT
IS HEREBY ORDERED:
1.

Defendant Michael J. Lindell’s motion to dismiss, (Dkt. 18), is DENIED.

2.

Defendant My Pillow, Inc.’s motion to dismiss, (Dkt. 23), is DENIED.

Dated: September 19, 2022

s/Wilhelmina M. Wright
Wilhelmina M. Wright
United States District Judge

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