IN THE SUPREME COURT OF THE STATE OF DELAWARE
FOX NEWS NETWORK, LLC, §
§
Defendant Below, §
Appellant, § No. 412, 2021
§
v. §
§ Court Below–Superior Court
US DOMINION, INC., DOMINION § of the State of Delaware
VOTING SYSTEMS, INC., and §
DOMINION VOTING SYSTEMS §
CORPORATION, § C.A. No. N21C-03-257
§
Plaintiffs Below, §
Appellees. §
Submitted: January 20, 2022
Decided: January 31, 2022
Before SEITZ, Chief Justice; VALIHURA and VAUGHN, Justices.
ORDER
After careful consideration of the notice of interlocutory appeal, the
supplemental notice of appeal, and their exhibits, it appears to the Court that:
(1) The plaintiffs below/appellees US Dominion, Inc., Dominion Voting
Systems, Inc., and Dominion Voting Systems Corporation (together, “Dominion”)
filed a complaint in the Superior Court against the appellant, Fox News Network,
LLC, for defamation per se. The complaint alleges that: (i) Fox intentionally
provided a platform for guests that Fox’s hosts knew would make false and
defamatory statements of fact on air; (ii) Fox, through Fox’s hosts, affirmed,
endorsed, repeated, and agreed with those guests’ statements; and (iii) Fox
republished these defamatory and false statements of fact on air, Fox’s websites,
Fox’s social media accounts, and Fox’s other digital platforms and subscription
services.
(2) On May 18, 2021, Fox moved to dismiss the complaint for failure to
state a claim. Fox argued that three affirmative defenses—the neutral reportage
defense, the “fair report” privilege, and the opinion defense—mandated the
dismissal of Dominion’s complaint, even if the court accepted Dominion’s
allegations as true. On December 16, 2021, the Superior Court denied the motion
(the “Opinion”).1 First, the Superior Court found that there was no reason to deviate
from the general rule that the law of the forum governs procedural matters and
applied Delaware’s “reasonable conceivability” pleading standard to the motion.2
Second, the Superior Court examined and rejected Fox’s defenses. Third, the
Superior Court found that Dominion’s complaint adequately pled actual malice.
(3) On December 27, 2021, Fox asked the Superior Court to certify an
interlocutory appeal from the Opinion under Supreme Court Rule 42. Fox
maintained that the following Rule 42(b)(iii) factors warranted interlocutory review:
1
US Dominion, Inc. v. Fox News Network, LLC, 2021 WL 5984265 (Del. Super. Ct. Dec. 16,
2021).
2
The Superior Court had previously ruled that New York substantive law would apply to the
defamation claim.
2
(i) the Opinion conflicts with other trial court decisions,3 (ii) interlocutory review
would terminate the litigation,4 and (iii) interlocutory review would serve the
considerations of justice.5 Dominion opposed the application.
(4) On January 10, 2022, the Superior Court denied the application for
certification.6 Noting that Fox had not addressed whether the Opinion concerned a
substantial issue of material importance—a threshold consideration under Rule
427—the Superior Court nonetheless determined that the Opinion addressed a
substantial issue of material importance because it considered the merits of
Dominion’s complaint. But the Superior Court found that the Rule 42(b)(iii) factors
did not weigh in favor of interlocutory review. The Superior Court disagreed with
Fox’s characterization of the Opinion and found that certification was not warranted
under Rule 42(b)(iii)(B) because the Opinion does not conflict with other Delaware
trial court decisions. And the Superior Court observed that certifying an
interlocutory appeal on the basis of Rule 42(b)(iii)(G)—Fox’s success on appeal
would terminate litigation—would endorse routine appeals from denials of motions
3
Del. Supr. Ct. R. 42(b)(iii)(B).
4
Del. Supr. Ct. R. 42(b)(iii)(G).
5
Del. Supr. Ct. R. 42(b)(iii)(H).
6
US Dominion, Inc. v. Fox News Network, LLC, 2022 WL 100820 (Del. Super. Ct. Jan. 10, 2022).
7
Del. Supr. Ct. R. 42(b)(i) (“No interlocutory appeal will be certified by the trial court or accepted
by this Court unless the order of the trial court decides a substantial issue of material importance
that merits appellate review before a final judgment.”).
3
to dismiss, an outcome inconsistent with Rule 42’s instruction that interlocutory
appeals be exceptional, not routine. The Superior Court also found that the
considerations-of-justice factor did not weigh in favor of certification because Fox’s
application did not identify any specific or unique injustice that would warrant
interlocutory review. Mindful of Rule 42’s directive that a trial court should refuse
to certify an interlocutory appeal if it finds the balance of the Rule 42 factors to be
uncertain,8 the Superior Court denied Fox’s application.
(5) We agree with the Superior Court that interlocutory review is not
warranted in this case. Applications for interlocutory review are addressed to the
sound discretion of the Court.9 In the exercise of its discretion and giving due weight
to the Superior Court’s analysis, this Court has concluded that the application for
interlocutory review does not meet the strict standards for certification under Rule
42(b). Exceptional circumstances that would merit interlocutory review of the
Superior Court’s decision do not exist in this case,10 and the potential benefits of
interlocutory review do not outweigh the inefficiency, disruption, and probable costs
caused by an interlocutory appeal.11
8
Del. Supr. Ct. R. 42(b)(iii).
9
Del. Supr. Ct. R. 42(d)(v).
10
Del. Supr. Ct. R. 42(b)(ii).
11
Del. Supr. Ct. R. 42(b)(iii).
4
NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is
REFUSED.
BY THE COURT:
/s/ Karen L. Valihura_________________
Justice
5