- This lawsuit is not about who is right or wrong regarding the merits of the election or claims of fraud or mistake. It is about whether these issues are worthy of debate under the First Amendment, and whether a corporation that has participated in the election as a state-actor has the power to chill such debate by employing intimidating “Lawfare” tactics.
- Criticism of Dominion’s election technology is not new. Long before the November 2020 election, numerous investigative reports, public statements by officials and experts, and even popular movies like HBO’s documentary Kill Chain highlighted how electronic voting machines, including those manufactured by Dominion,[1] defeat verifiability of election results and could be easily hacked to manipulate votes. Despite such widespread criticisms, Dominion stayed silent before now. It is only in connection with the November 2020 election that Dominion launched its Lawfare campaign to silence those who might speak out about possible election irregularities.
- As part of this campaign, Dominion publicly boasted, with the assistance of Hamilton Place Strategies, LLC (“HPS”)—Dominion’s Public Relations Firm—on its website and in interviews that its lawyers, Clare Locke, LLP (“Clare Locke”) sent letters to over 150 individuals demanding they cease and desist from “taking part in defaming Dominion and to preserve all documents and communications that may be relevant to Dominion’s [unspecified] pending claims” and threatened ruinous “imminent” litigation—even if the recipients of the letters did not make any public statements about Dominion. In these letters, Dominion, among other things, demanded these Americans preserve all communications “related to Dominion or allegations of alleged voting improprieties” (emphasis added). Dominion’s true purpose is not thus simply to silence Plaintiffs and the Class, but to silence any person, including news networks whose job it is to hold government officials accountable, who might speak about election integrity and security or bring evidence of possible voting fraud or irregularities to light regarding the November 2020 election.
- Generally, Plaintiffs are everyday Americans. They are fathers, mothers, daughters, and sons. They are the neighbor you say good morning to on your way to work. Many of these people were poll watchers and challengers who donated their time to the most fundamental of all democratic rights—elections. They are Americans trying to participate in a public debate about election integrity and security. Plaintiffs have been intimidated from participating in the debate, however, because of Dominion, Clare Locke, and HPS’ Lawfare. The following letter, which was sent to Plaintiff Jennifer Cooper (“Cooper”), is an example of one of Dominion’s intimidation tactics:
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that may be relevant to Dominion’s pending legal claims.” Footnote 2 on page 1 of the letter says, “For the avoidance of doubt, this is a retraction demand pursuant to relevant state statutes and applicable rules of court.” On page 3, the letter demands Cooper to “Confirm receipt of this letter and that you intend to adhere to our request to retain documents as set forth above.” Despite requiring confirmation of receipt, no contact information whatsoever was included in the Letters.
- Among the recipients of these attack letters from Dominion and Clare Locke are dozens of average Americans—not public figures—who volunteered as poll watchers and challengers and signed sworn statements about election irregularities they personally witnessed. While it is unclear how Dominion and its co-conspirators determined the targets of their Lawfare campaign, Dominion dispatched Clare Locke to send threatening letters, falsely claiming they had defamed Dominion, even though many never mentioned Dominion. In fact, as above, the Letters demanded retraction of unspecified statements, and in some instances point out the billion–dollar lawsuits Dominion had filed (the “Letters”). Said another way, the Letters were boilerplate directives meant to instill fear and intimidation. Despite failing to identify the alleged defamation, Dominion then illegally demanded these private citizens preserve all communications, emails, texts— private or otherwise—and a host of other materials.
- Each of the named Plaintiffs herein received a Letter nearly identical to Cooper’s, and each of the Letters they received contained FN2, which demanded a retraction of some unspecified statement. The retraction demands received by the named Plaintiffs are especially offensive, as none of the affidavits executed by the named
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Plaintiffs that presumably led Dominion, HPS, and Clare Locke to send the Letters even mentioned Dominion.
- Dominion did not stop there. Within weeks after sending the Letters, Dominion began following through with its threats of “imminent” litigation by suing several individuals. Then, to give the Letters even more intimidating effect, Dominion’s public Lawfare campaign extended to suing news networks—Fox News, One America News Network, and Newsmax—and other individuals for billions of dollars. The lawsuits were subsequently amplified by a high–powered, well–orchestrated publicity campaign, likely developed by HPS, designed to spread their allegations to as many people as possible. Dominion and its co-conspirators intended for its media blitz to inflict a crippling fear of becoming the next target of a billion–dollar lawsuit if one decides to speak or testify regarding election integrity or security. And Dominion’s plan appears to have worked because news networks and individuals alike have begun self-regulating their speech concerning election integrity and security for fear of a billion–dollar lawsuit.
- For example, Plaintiffs are restricted—according to the Letters—from speaking about a topic of major public concern: the largest cyber breach in U.S. history. In December 2020, the U.S. government announced it suffered the largest cyber breach in history through the Solar Winds hack. This breach demonstrates how vulnerable electronic voting systems are to hackers because those systems are, directly or indirectly, connected to the internet.[2] Despite Dominion CEO John Poulos’s claims that Dominion had never used SolarWinds, an archival screenshot of Dominion’s website shows a now–
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erased SolarWinds logo.3 Based on this evidence, it appears that Dominion did use SolarWinds software. Public debates, audits, and/or investigations of the 2020 General Election are currently being conducted or contemplated by state legislators in Arizona, Georgia, Wisconsin, Pennsylvania, and other states to ascertain the scale of vulnerabilities and whether they were exploited. By widely publicizing its intimidation campaign, Dominion and its co-conspirators seek to intimidate and silence not just Plaintiffs and the Class, but also the public at large from exercising their right to speak and to share their own testimonial evidence relevant to proceedings investigating election fraud in the November 2020 election.
- Dominion has not waged its Lawfare campaign as only a corporate citizen, but also as a state–actor, e., the government. Dominion is a state–actor because States across the United States have outsourced their constitutional obligation to run elections by deferring to Dominion’s professional experience and contracting out the administration, collection, counting, recording, and auditing of ballot results through voting technology, software, and thousands of hours of technical and election services. For example, Georgia paid Dominion roughly $90,000,000 for a complete, end–to–end election solution in their Master Solution contract.4 In the Master Solution, Georgia specifically stated “[t]he unique abilities, knowledge, and skills of [Dominion] constitute
- Zachary Stieber, Dominion Voting Systems Uses Firm That Was Hacked, THE EPOCH TIMES, Dec. 14, 2020. https://www.theepochtimes.com/mkt_app/dominion–voting–systems–uses–firm–that–was– html.
- See Master Solution Purchase and Services Agreement at 17, ¶ 10 & 93–94 (Fee Schedule). https://sos.ga.gov/securevoting/ (Contract link) (last visited Sep. 28, 2021).
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a material inducement for State entering into this Agreement.”[3] Such reliance and partnership between Dominion and States, according to which Dominion itself takes the place of the government, makes Dominion’s conduct of elections and all its related activities a state-action. The administration, collection, counting, recording, and auditing of ballot results in elections are inherently a traditional, exclusive public function. So not only have these Americans received Letters from a corporate citizen with tens of millions in annual revenue and private equity support, but they have also been threatened by, in effect, the government itself.
- As stated previously, many Plaintiffs did not mention Dominion in their sworn statements. Yet, Dominion and its co-conspirators not only sent the Letters but also demanded unspecified “retractions” from Plaintiffs. Considering Plaintiffs did not talk about Dominion in the affidavits that presumably brought them to Dominion’s attention in the first place, it appears that Dominion’s true purpose was not to stop defamation, but to compel Plaintiffs to retract the statements attesting to their observations regarding election integrity generally. Dominion has no authority, especially when acting as a state actor and the government, to demand such retractions.
- Through its promiscuous delivery of aggressive threats of litigation and its deliberately broad advertisement of its own threatening activities, Dominion seeks to intimidate anyone who might speak out regarding election integrity and security concerns, whether such speech is related to Dominion or not. Plaintiffs and the Class have been damaged by Dominion’s Lawfare campaign.
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5 See Master Solution Purchase and Services Agreement at ¶ 6.7. https://sos.ga.gov/securevoting/ (Contract link) (last visited Sep. 28, 2021). Case 1:21-cv-02672-STV Document 1 Filed 09/30/21 USDC Colorado Page 10 of 73
JURISDICTION AND VENUE
- This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 of the Class Action Fairness Act of 2005 because (1) there are 100 or more class members, (ii) there is an aggregate amount in controversy exceeding $5,000,000, exclusive of interest and costs, and (iii) there is minimal diversity because at least one plaintiff and one defendant are citizens of different states. This Court has supplement jurisdiction over state law claims pursuant to 28 U.S.C. § 1367.
- Venue properly lies in this judicial district pursuant to 28 U.S.C. § 1391 because Defendants transact business in this district and are subject to personal jurisdiction in this district. Additionally, Defendants have received substantial revenue and profits from sales of its products in this district. Further, Defendants sent Letters to Plaintiffs from this district or made the business decision in this district to instruct Clare Locke to send such Letters because Defendants are a resident of this district and have their principle places of business here. Therefore, a substantial part of the events and/or omissions giving rise to the claims herein occurred, at least in part, within this district.
- The Court has general personal jurisdiction over Defendants because they have conducted substantial business in this judicial district, are headquartered in this district, make this district their principle place of business, and intentionally and purposefully place their products into the stream of commerce throughout the United States from within this district.
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THE PARTIES A. Plaintiffs:
- Plaintiff Jennifer L. Cooper (“Cooper”), a small business owner, is an individual and resident of the State of Michigan and was a poll watcher and challenger during the November 2020 General Election. See 1 (Affidavit of Jennifer Cooper Nov. 9, 2020). Prior to election day, Cooper was trained to take notes of anything out of the ordinary that she witnessed during her work as a poll watcher and challenger. On the day of the election, Cooper was at an offsite location counting absentee and military votes. The day after the election, Cooper was a ballot challenger at the TCF Center in Detroit. See id. While there, she witnessed numerous problems and challenged these problems with the election workers. See id. Cooper also felt harassed and intimidated by the other election workers. See id. After having these experiences, Cooper traveled to Livonia, Michigan with the notes she recorded from the TCF Center and drafted an affidavit specifically detailing these issues.[4] See id. Cooper did not mention Dominion in her affidavit. See id.
- Despite never mentioning Dominion, Cooper received a FedEx envelope one day in early January 2021 that contained a Letter. See 2 (Dominion and Clare Locke Lawfare Letter Dec. 31, 2020). As Cooper started to read the Letter from Dominion and Clare Locke, she immediately had a visceral reaction, one of dread and fear. In fact, the receipt of the Letter threatened the most valuable thing in Cooper’s life—her sobriety. Cooper is a recovering alcoholic and is eleven (11) years sober. But that Letter made her
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6 Cooper was unaware that her affidavit would be used for any specific litigation.
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question everything. So much so that she immediately attended an Alcoholics Anonymous’ meeting for support from her community. Cooper’s strength to abstain is a testament to her character. But Cooper was still unsure what her future looked like because the Letter demanded a retraction of some unknown statement she allegedly made. It threatened ruinous litigation that she could not afford. And it demanded her to preserve evidence she did not have. She played out numerous situations in her head. What had she said that was defamatory toward Dominion? How did they know where she lived? Why would they want to sue? Could her small business survive? Was she going to be audited by the IRS? Was she going to lose everything she had worked so hard for during her life? These types of questions should never be asked by an American who volunteered her time to protect the most fundamental of all democratic rights—elections.
- Because of the threatening and intimidating nature of the Letter, Cooper was scared and thought unknown people may visit her home. To combat this, Cooper invested in her own security by purchasing, among other things, a Ring video doorbell. Dominion, HPS, and, Clare Locke’s Lawfare campaign has clearly damaged Cooper.
- Plaintiff Eugene Dixon (“Dixon”), a retired director of credit, is an individual and resident of the State of Michigan. Dixon was a poll watcher and challenger during the November 2020 General Election. As a poll challenger for the Election Integrity Fund, Dixon worked at the TCF Center in Detroit monitoring and challenging the ballot count and witnessed, among other things, ballot duplication. See Ex. 3 (Affidavit of Eugene Dixon Nov. 3, 2020). After witnessing numerous concerning issues,
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Dixon was asked to draft an affidavit and send it to local government officials, which he did.[5] Dixon’s affidavit did not in any way discuss or even mention Dominion. See id.
- After fulfilling his civic duty, Dixon received the same intimidating Letter from Dominion and Clare Locke, threatening a defamation lawsuit if his “defamatory” speech continued. See Ex. 4 (Dominion and Clare Locke Lawfare Letter Dec. 28, 2020). The Letter also demanded a retraction and ordered him to preserve all evidence. See id. After reading the Letter, Dixon was consumed with a sense of fear. He was also confused. What did he do to receive this Letter? What had he said that was defamatory toward Dominion? Was his volunteering as a poll challenger somehow tied to the Letter? If so, how could fulfilling his civic duty result in such a draconian Letter? How did Dominion and Clare Locke know who he was? Concerned and not knowing whether people would visit his home, Dixon purchased security equipment to protect himself and his family, something that Dixon never thought was necessary before. Clearly, Dixon has been damaged by Dominion, Clare Locke, and HPS’ Lawfare campaign.
- Plaintiff Francis J. Cizmar (“Cizmar”), a former employee of a large accounting firm, is an individual and resident of the State of Michigan. Cizmar, a poll challenger, also received an intimidating Letter from Dominion and Clare Locke, threatening a defamation lawsuit if his speech continued, demanded a retraction, and required him to preserve evidence. See 5 (Dominion and Clare Locke Lawfare Letter Dec. 28, 2020). Like the other named Plaintiffs, however, Cizmar never mentioned Dominion in his affidavit. See Ex. 6 (Affidavit of Francis J. Cizmar Nov. 8, 2020). Feeling
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7 Dixon was unaware that his affidavit would be used for any specific litigation.
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overwhelmed, concerned, and afraid by the Letter and not understanding why it was sent, Cizmar decided to call Clare Locke, but no contact information was provided on the Letter. Clearly, Clare Locke was not interested in hearing from the people they were harassing and intimidating with their Lawfare campaign, and their vexatious demand for confirmation of receipt at the end of their Letters was apparently intended only to burden and harass the recipient—just like the onerous preservation requests. With no number on the Letter, Cizmar Googled the law firm and found a contact number. Cizmar called the number but was directed to voicemail where he left his name and contact information and requested a call back from Clare Locke regarding the Letter. Clare Locke never returned Cizmar’s voicemail. Because of the letter, Cizmar has become consumed with the safety of himself and his family. He never leaves his home without making sure his security system is turned on. And while at home, he makes sure that all doors and windows remain locked. Cizmar also keeps the curtains drawn to prevent people from looking inside his home. Dominion, Clare Locke, and HPS’ Lawfare campaign has damaged Cizmar.
- Plaintiff Anna Pennala (“Pennala”), a mother and part-time office administrator, is an individual and resident of the State of Michigan and was a poll watcher and challenger during the November 2020 election. See 7 (Affidavit of Anna Pennala Nov. 8, 2020). As a poll challenger at the TCF Center in Detroit, Pennala observed several irregularities, including but not limited to unattended ballot boxes. See id. Several days after the election, local officials requested that anyone who witnessed issues with the election sign affidavits regarding the same. Wanting to fulfill her civic
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duty, Pennala traveled to Livonia, Michigan and filled out an affidavit that detailed the issues she personally witnessed while working at the TCF Center. Pennala’s November 9, 2020 affidavit never mentioned Dominion.[6]
- Shortly after Christmas 2020, Pennala was taking down her Christmas tree when she received a FedEx envelope containing a Letter. The Letter was from Clare Locke and Dominion and it threatened ruinous litigation, demanded a retraction, and ordered her to preserve evidence. See 8 (Dominion and Clare Locke Lawfare Letter Dec. 23, 2020). Pennala was terrified and nervous. She has four (4) children, what did she get herself involved with when she fulfilled her civic duty? All Pennala did was observe an election. How did this law firm and people who run elections know where she lived? After researching Clare Locke and Dominion, Pennala realized that these were serious people who could destroy her life. Scared and not knowing whether people would come to her home, Pennala decided to purchase security equipment to protect herself and her family. Clearly, Pennala has been damaged by Dominion, Clare Locke, and HPS’ Lawfare campaign.
- Plaintiff Kathleen Daavettila (“Daavettila”), a mother, is an individual and resident of the State of Michigan and a poll challenger. Daavettila was a poll challenger at the TCF Center in Detroit the day after the election. See 9 (Affidavit of Kathleen Daavettila Nov. 8, 2020). Daavettila witnessed numerous issues while at TCF and wrote notes to keep track of all the problems. See id. Several days after the election, local officials requested that anyone who witnessed issues with the election sign affidavits