Why Did Fox News Settle And Why Didn't They Do It Two Years Ago?

Terrible lawsuit, and such small portions!

Yesterday, Dominion Voting Systems reached a deal in the $1.6 billion defamation suit it brought against Fox News and its parent company Fox Corporation for $787,500,000.

"The parties have settled their case," Delaware Superior Court Judge Eric Davis told the assembled jurors and reporters plus those of us who parked on the public access line all day long waiting for opening statements that never came. (At least we were spared an infernal light jazz hold loop!)

“Your presence was extremely important," the judge continued, thanking the jury for its service, "this case was resolved because of you.” He went on to praise the quality of lawyering in the case, although just a day before he appointed a special master to investigate failures to produce discovery by Fox's counsel, including a recording of Rudy Giuliani admitting to Maria Bartiromo that he lacked evidence of the claims of vote fraud he was putting forward. But perhaps more to the point, Fox's lawyers ... ummm ... obscured the fact that Rupert Murdoch, chairman of Fox Corp, was also an officer at Fox News. This more than anything may have clarified the issue for the defendants.

Thanks to a grant of partial summary judgment in March, one of the few remaining issues at trial was whether Fox Corp, the parent company, bore responsibility for torts committed by its subsidiary Fox News. Generally, the answer would be no. But here, thanks to Rupert Murdoch's prolific emailing, as well as his son Lachlan's aggressive texting to Fox News CEO Suzanne Scott, there was ample record that officers at the parent company controlled the content and tenor of the network's coverage. There's also the minor matter of this exchange from Rupert Murdoch's testimony:

LAWYER: And you could have said to Suzanne Scott or to the hosts, “Stop putting Rudy Giuliani on the air”?

MURDOCH: I could have. But I didn’t.

The elder Murdoch would have been a terrible witness, as evidenced by page after page of deposition testimony in which he denied saying something, only to be immediately impeached by Dominion's lawyers directing his attention to an email where he said just that. But there were really no good witnesses for Fox. The prospect of putting Jeanine Pirro or Tucker Carlson on the stand would give any lawyer the vapors.

In contrast, Dominion had thousands of pages of texts and emails documenting Fox's decision to hide the truth about Trump's electoral loss from its viewers, who got mad on in the early hours of November 4 when the network was the first to call Arizona for Biden, and stayed mad for weeks. Fearing that viewers would abandon the network for upstart rivals OAN and Newsmax, which were gleefully airing Trump's election lies, the management made a deliberate choice to give the audience what it wanted — which was not the truth about Joe Biden's decisive win.

Here's a passage from the court's partial grant of summary judgment:

As ratings for Newsmax (a FNN competitor) increased, Ms. Scott sent an email to Kyle Godwin, the Vice President of Programming of FNN, directing him to “keep an eye.” Mr. Wallace called the Newsmax surge “a bit troubling.” Mr. Wallace said it was an “alternate universe.” Additionally, Mr. Wallace stated that Fox was on “war footing.”

On November 7, 2020, when Fox ultimately declared that President Biden had won the Election, its viewership went down. Lachlan Murdoch testified that the drop was concerning. On November 8, Rupert Murdoch emailed Ms. Scott, saying that Fox was “[g]etting creamed by CNN!” In response, Ms. Scott said that she had a “[l]ong talk with [Rupert] and Lachlan” and provided Rupert Murdoch with the main points of the talk, saying that he had “a lot . . . to think about this week.” On November 9, 2020, Ms. Scott emailed Rupert Murdoch, noting the importance of “keep[ing] the audience who loves and trusts us…we need to make sure they know we aren’t abandoning them and still champions for them.” Rupert Murdoch responded, “Thanks. All very true. Lots of sane Fox viewers still believe in Trump.”

It was in that order that Judge Davis ruled that all 20 of the allegedly defamatory statements were, in fact, defamatory. That took Fox's defenses off the table and left actual malice and the extent of damages as the only live issues (as well as Fox Corp's liability for those damages). All that Dominion had left to prove was that Fox knew the claims it was airing were false, or was at a minimum reckless about their veracity. And there was an absolute mountain of damning evidence to show that it was. From texts between Hannity, Carlson, and Ingraham saying that Rudy and Sidney Powell were crazy, to the email from Sidney Powell's "source" who claimed to be a ghost receiving messages from the wind, to Murdoch telling Jared Kushner that they weren't going to retract the Arizona call because "the numbers are the numbers" — it's clear they knew damn well there was no evidence of fraud, and yet they put Rudy and Sidney on the air anyway.

Faced with the prospect of having its hosts and executives paraded in front of jurors and broadcast live on the witness stand, with a downside risk of a punitive damage award in the ten figures, Fox blinked. (As they probably should have done two years ago before all this shit came out, IMHO.)

"Today's settlement of $787,500,000 represents vindication and accountability. Lies have consequences," Dominion lawyer Justin Nelson told reporters on the courthouse steps. His colleague Stephen Shackelford agreed: “Money is accountability, and we got that today from Fox.”

““Today's settlement of $787,500,000 represents vindication and accountability. Lies have consequences””

— Acyn (@Acyn) 1681849365 

And before you go whining that Dominion should have refused a settlement and gone to trial for America , that's not what corporations are for. The company is largely owned by private equity, which valued it at about $80 million in 2018. Under the most generous valuation (i.e., the number Fox's lawyers ran with), it's worth $220 million today. How could you justify to shareholders risking three quarters of a billion dollars on the whims of 12 anonymous strangers in service of some larger civic goal? The answer is you couldn't . And even a $3 billion dollar verdict wouldn't have put Fox out of business, since that represents less than one quarter's profits for the company.

But in two years of discovery, Dominion has given us an unprecedented look inside Fox, and all those documents remain in the public record. Meanwhile, Dominion's competitor Smartmatic has a pending $2.7 billion suit against Fox in New York, shareholders are suing the Murdochs for recklessly risking profits by airing all this defamatory shit, and Dominion is still suing OAN and Newsmax, as well as various Big Lie purveyors like Mike Lindell.

It sucks that we're not going to get the show trial we all wanted and deserved, but we got a lot out of this case. And the bloodletting isn't over.

Catch Liz Dye on Opening Arguments podcast.

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