IN THE SUPREME COURT OF THE STATE OF DELAWARE
FOX NEWS NETWORK, LLC, §
§
Defendant-Below, § No. 218, 2026
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
GAVIN C. NEWSOM, § C.A. No. N25C-06-251
§
Plaintiff-Below, §
Appellee. §
Submitted: June 12, 2026
Decided: August 6, 2026
Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.
ORDER
After consideration of the notice and supplemental notice of appeal from an
interlocutory order and the exhibits attached thereto, it appears to the Court that:
(1) On June 27, 2025, Governor Gavin C. Newsom filed a complaint in the
Superior Court against Fox News Network, LLC (“FNN”) for defamation per se and
violations of California’s Unfair Competition Law. The Superior Court summarized
the events leading to this litigation as follows:
On June 6, 2025, at approximately 10:23 p.m. Pacific Daylight Time
(or June 7, 2025, at approximately 1:23 a.m. Eastern Time), Governor
Newsom spoke on the telephone with President Donald Trump for
about sixteen minutes. Following the phone conversation, Governor
Newsom publicly spoke about his conversation with President Trump,
and multiple news outlets covered Governor Newsom’s statements
about the call.
On Tuesday, June 10, 2025, during a press conference President Trump
was asked “[w]hen was the last time you spoke to Governor Newsom?”
President Trump responded, “[a] day ago.” Governor Newsom took to
X to respond “[t]here was no call. Not even a voicemail. . . .” Informed
of Governor Newsom’s X post, President Trump provided FNN host
John Roberts a screenshot of his call log revealing the sixteen-minute
phone conversation between Governor Newsom and President Trump
on June 7, 2025.
Later that day, Roberts referenced the phone call and described
President Trump as stating the call occurred “yesterday or the other
day.” And that evening Jesse Wat[t]ers Primetime played an edited
clip of the press conference that excluded President Trump’s comment
that he spoke with Governor Newsom “[a] day ago.” A chyron
displayed a “Fox News Alert” that “Gavin Lied About Trump’s Call.”
In an effort to satisfy Governor Newsom’s retraction demand, on July
17, 2025, Jesse Watters, on Jesse Watters Primetime, played the
unedited video of President Trump’s response to the question: “When
was the last time you spoke to Governor Newsom?” and included
President Trump’s response that he and Governor Newsom spoke “[a]
day ago.” Watters then explained that he understood Governor
Newsom’s X post stating “[t]here was no call. Not even a voicemail”
to mean there was never a call between Governor Newsom and
President Trump, not that President Trump’s description of the timing
was incorrect. Watters concluded by noting, “[Newsom] didn’t deceive
anybody on purpose, so I’m sorry, he wasn’t lying. He was just
confusing and unclear. Next time, Governor, why don’t you just say
what you mean.” The chyron beneath Watters read, “Gavin Didn’t Lie,
He Was Just Sloppy.”1
(2) On August 5, 2025, FNN moved to dismiss the complaint under Superior
Court Civil Rules 12(b)(3) and (b)(6). Governor Newsom then filed an amended
complaint that included allegations concerning FNN’s response to his retraction
1
Appellant’s Suppl. Notice of Appeal from Interlocutory Order Ex. A (Del. Super. Order dated June 8, 2026 ¶¶ 3–6 (citations omitted)).
2
demand and eliminated the count asserting violations of California’s Unfair
Competition Law. On September 25, 2025, FNN moved to dismiss the amended
complaint. Invoking the doctrine of forum non conveniens, FNN argued that allowing
the litigation to proceed in Delaware would impose a substantial hardship on FNN.
FNN further contended that the amended complaint failed to state a claim for
defamation.
(3) On April 30, 2026, the Superior Court issued a decision denying the
motion to dismiss (the “Opinion”).2 Weighing the “Cryo-Maid factors,”3 the court
concluded that FNN had not shown it would face an overwhelming hardship by
litigating in Delaware. The court also held that Governor Newsom stated a claim for
defamation under California law. The court ruled that it was reasonably conceivable,
based on the pleaded facts, that: (i) FNN knew the statements were false at the time
of making them; (ii) Watters’ statement was not a constitutionally protected opinion;
and (iii) FNN acted with actual malice.
2
Newsom v. Fox News Network, LLC, 2026 WL 1182408 (Del. Super. Apr. 30, 2026). 3
Id. at *4 (“Where there are no issues of prior pendency in other jurisdictions, this Court, in assessing a forum non conveniens claim, considers the ‘Cryo-Maid factors’:
(1) the relative ease of access to proof; (2) the availability of compulsory process for
witnesses; (3) the possibility of the view of the premises; (4) whether the controversy
is dependent upon the application of Delaware law which the courts of this State
more properly should decide than those of another jurisdiction; (5) the pendency or
nonpendency of a similar action or actions in another jurisdiction; and (6) all other
practical problems that would make the trial of the case easy, expeditious and
inexpensive.”)
(quoting Martinez v. E.I. DuPont de Nemours and Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citations omitted)).
3
(4) After receiving an extension of the ten-day period to apply for
certification of an interlocutory appeal, FNN filed its application for certification on
May 18, 2026. FNN contended that the Opinion decided a substantial issue of
material importance and that the following Rule 42(b)(iii) criteria weighed in favor of
certification: (i) the Opinion resolved a question of law—whether California Civil
Code § 48a requires a plaintiff to serve a retraction demand before filing suit—for the
first time;4 (ii) interlocutory review might terminate the litigation;5 and (iii)
interlocutory review would serve considerations of justice.6 Governor Newsom did
not dispute that the Opinion decided a substantial issue of material importance, but he
otherwise opposed the application.
(5) On June 8, 2026, the Superior Court denied FNN’s application. In
refusing certification, the Superior Court first acknowledged the parties’ agreement
that the Opinion decided a substantial issue of material importance and found this
threshold requirement for interlocutory review satisfied. The court next considered
the Rule 42(b)(iii) criteria that FNN cited. The court rejected FNN’s reliance on Rule
42(b)(iii)(A), explaining that it applied well-established principles of statutory
construction to determine that California Civil Code § 48a requires a plaintiff to issue
4
Del. Supr. Ct. R. 42(b)(iii)(A).
5
Id. 42(b)(iii)(G).
6
Id. 42(b)(iii)(H).
4
a retraction demand within twenty days of the publication of the defamatory statement
but does not require a retraction demand before the filing of a lawsuit.
(6) As to Rule 42(b)(iii)(G), the court questioned the likelihood of an
interlocutory appeal terminating the litigation and found that the appeal was not
exceptional as required by Rule 42. The court viewed this case as similar to US
Dominion, Inc. v. Fox News Network, LLC,7 another defamation case involving FNN,
in which the court refused to certify for interlocutory appeal the denial of FNN’s
motion to dismiss. In rejecting FNN’s argument that certification was appropriate
because appellate reversal would terminate the litigation, the Dominion court
emphasized that acceptance of this argument “would validate routine appeals from
most motion to dismiss decisions.”8
(7) The court also was not persuaded by FNN’s position that interlocutory
review would serve considerations of justice under Rule 42(b)(iii)(H). FNN
contended that interlocutory review and reversal would discourage forum shopping
and ensure early dismissal of meritless defamation lawsuits. The Superior Court
described the forum shopping claim as meritless, noting that FNN had chosen to
incorporate in Delaware. Finally, the court found that the benefits of interlocutory
review would not outweigh the probable costs.
7
2022 WL 100820 (Del. Super. Jan. 10, 2022).
8
Id. at *7. This Court refused FNN’s interlocutory appeal in Fox News Network, LLC v. US Dominion, Inc., 270 A.3d 273, 2022 WL 274235 (Del. Jan. 31, 2022) (TABLE).
5
(8) 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 this Court.9 In the exercise of our discretion and giving due weight
to the Superior Court’s view, we conclude 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 do not exist,10 and the potential
benefits of interlocutory review do not outweigh the inefficiency, disruption, and
probable costs caused by an interlocutory appeal.11
NOW, THEREFORE, IT IS ORDERED that this interlocutory appeal is
REFUSED.
BY THE COURT:
/s/ Abigail M. LeGrow
Justice
9
Del. Supr. Ct. R. 42(d)(v).
10
See id. 42(b)(ii).
11
See id. 42(b)(iii).
6