Dominion v. Fox – Now What?

Members of the Emptywheel community are on top of almost everything. So you probably know that late over the weekend, the judge in the Dominion v. Fox defamation trial in Wilmington Delaware continued the trial. For one day, moving the continuation of jury selection from this morning, Monday, to the same time, 9:00 am, tomorrow, Tuesday.

That caused quite a stir on the internet, but, as the judge explained today, is quite common, although he did not say why it had been done in this case.

The speculation is that it was to give one extra day past the weekend for the parties to contemplate settlement. Courts, especially a rapid moving one like the Delaware Court, rarely do that on their own. One or both parties have to request it. Was it Fox, Dominion, or both?

Then late last night, there were reports there had been no settlement reached. That is not surprising in the least, as Sunday would have just been the start, any really settlement would come Monday. So far, so good, but now what?

Short answer is that is unclear. Even today is not a drop dead deadline. Trials can be settled even during jury voir dire or into arguments and evidence. I would very much think the judge here would rather it be sooner rather than later, but doubt given the strain on the court, would probably accept it at any point.

The internet hills are alive with the sound of (almost always) non-trial lawyers yammering that Dominion should “not” settle, because the “public” is entitled to this spectacle.

What a load of bullshit. There are two parties to this civil litigation, and the “public” is not one of them. But the two actual parties in interest, Dominion and Fox have their own interests and needs that obliterate public call for a show trial for their puerile amusement, and “popcorn” moment.

Attorney Brad Moss noted:

“For those asking why Dominion might settle, there are at least three things to remember:

1) non-trivial chance the pre-trial rulings get reversed on appeal and the whole thing is tossed;

2) trials are a wild card; and

3) if they can accomplish their primary goals, why not?”

Attorney Peter Zeidenberg, who this blog knows well if you go far enough back, said:

“Better reason: the damages case for $1.6B is pretty weak. If awarded it could easily get tipped on appeal. $500M would be a tempting offer.”

Frankly, I agree with both on this. Will the case settle? I have no idea, but there are good reasons for both parties to try. And it would certainly thrill the court. There is a lot of sense in making the attempt.

238 replies
  1. Ed Walker says:

    I agree Dominion might see the value of settlement. FWIW, if the case is as strong as it appears to be, punitive damages may be available. Remember that Dominion made written demands on Fox to stop with the crap and Fox didn’t. That could be the decisive fact on punitive damages. A quick check doesn’t show a limitation on punitive damages in Delaware.

    One possible explanation is here:
    It says Dominion has reduced its damages claim to $1 billion on the grounds that part of that claim was duplicative. Fox might have interpreted that as a settlement gambit. Of course who knows?

    I also would love to see a trial where the Fox clown show hosts had to testify. It would hurt those toads and maybe even reduce my cable fees a tad. But that’s not of any interest to Dominion.

    • bmaz says:

      Oh, think they have been discussing for a while now. Far as I can tell, Chancery Court, as a court of equity, does “not” permit punitive damages. I think economic is the measure of potential damages here. That may, and may well not, be able to be fully proved up.

      • PeteT0323 says:

        Would a potential settlement of this “type” – there must be precedent right? – require Fox to admit to one degree or another that what they broadcast and those who broadcast it were full of sh*t (that’s not a legal term AFAIK)?

        • earlofhuntingdon says:

          Yep, no precedents required. Shoey Generous [sui generis], as Trump might say. The terms need only not be unlawful. I imagine Dominion has a long list. Avoiding a few of them – a public apology, forced resignations – might be worth a few bob to Fox to avoid.

      • Ed Walker says:

        Dominion asked for punitive damages, and from a very brief look, it seems like a jury can award them.

        • ExRacerX says:

          Thanks. Apart from the possibility awarding punitive damages, does the case being heard in Superior Court affect other legal aspects pertinent to this case?

        • ExRacerX says:

          Thanks again, bmaz. Those are two pretty big differences. In my limited legal knowledge, a jury is usually better for the defense, but potential punitive damages has gotta be a pretty big negative for Fox here.

        • Drew in Bronx says:

          Chance, the lawyer–editor of Chancery Daily (& the person most familiar with Delaware Chancery court who’s not a Chancellor) notes that Chancery Court is a court of equiety and Superior Court is a court of law. I’ll leave it to the lawyers to parse that precisely, but the “equity” aspects refer to what is equitable, or fair –referring to interpretation of contracts, etc with Delaware corporations. The contrast is with interpretation of how laws are interpreted with relation to a set of facts. (Juries decide on facts, judges decide on law or equities depending)

      • J R in WV says:

        bmaz, you can stop using the word “purile” when referring to opinions you disagree with. Please!

  2. Lewis_17APR2023_1424h says:

    Dominion has insisted that FOX publicly apologize. Those apologies will be ignored by most FOX viewers unless the perpetrators (Hannity, Carlson, et al) are fired for their malfeasance. I get that if Dominion is only interested in money they will bargain away the apology, but they should be reminded that some counties (notably Shasta in California) have decided to stop using the voting machines based on FOX’s lies. The only way to stop that trend is to ensure that FOX is exposed for their treachery. A few on-air apologies is insufficient.

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    • bmaz says:

      I dunno, if I were Dominion, I would be FAR more worried about bolstering my company than “apologies” that give some subset of people happy feelings. There are serious pecuniary interests here above and beyond what the “popcorn” set longs to see. That was the whole point of the post, did you miss it?

      • Ginevra diBenci says:

        bmaz, thanks for your post. You added valuable perspective to a subject that I have a habit of reflexively viewing through the lens of emotion.

        I thought Dominion’s original suit had stipulated an on-air statement (to be repeated) to the effect that Fox had misrepresented Dominion’s performance, with a correction to include the facts. I don’t remember the “apology” part, which seems less important, but I would think Dominion would still insist on the correction as part of any settlement.

        • timbozone says:

          Yes, it seems unlikely that Dominion is going to accept anything less than a public apology from Fox. Then it’s up to Fox to figure out how much money over $100 million their willing to spend to avoid having to issue a public apology. Is it $500 million? $1 billion? Legally, it appears that it will no longer be much beyond $1 billion…

      • vicks says:

        Fox created this monster and they’ve lost control over it.
        There is a scenario where an apology could do more damage to Fox Corp AND Dominion than quietly agreeing to a giant settlement.

        • bmaz says:

          There is a scenario for all kinds of things. People truly need to quit imprinting their hopes and feelings onto something they are not involved in and know nothing about.

      • Desidero says:

        For background, “CEO Jeff Poulous said in a letter to the House Committee on Administration that he owns a 12% stake of the company, while 75.2% is owned by Staple Street Capital.”
        Poulos is a do-gooder altruist, but Staple Street is ex-Carlyle Group guys, unlikely to stray far from the money angle, nor risk damaging their extensive portfolio (Bud Light moments are too easy to come by). Dominion was valued at $80m not long ago, so even a $500m payout is a huge win for a group with ~$800m under management.

        • Desidero says:

          So agreeing with you that high likelihood to settle, w/o a big show trial, as we just saw.
          Plus there are many other defendents to go. Good returns for Dominion.
          And since Dominion’s CEO started the company to help the disabled & physically challenged vote easier, he’ll be able to turn his huge winnings into new altruism. Just not further Fox revelations.

    • GSSH-FullyReduced says:

      Lewis (and Clark?): Shasta County, home to The State of Jefferson, doesn’t want to use Dominion machines, that figures. IMO, many folks in these somewhat remote parts of NorCal and Southern Ore don’t need no voting machines. They’ve watched enough FoxN to know whose gonna help them secede successfully. But their votes are in the minority. Beyond the serious pecuniary interests, settling out of court ain’t gonna settle nothin in Shasta Cty, just make ’em more pissed.

      • Raven Eye says:

        One of the things that the Shasta County supervisors chose to ignore is the relationship between the county elections official and the Secretary of State. The Board of Supervisors does control the purse strings, but the Secretary of State controls elections in California.

        The current elections official advised the board that “… it would cost a minimum of $1,651,209.68 and require the addition of 1300 county staff members to implement a full manual tally.” Further, the Secretary of State may determine that a manual tally will not conform with state requirements, or may enact additional requirements to remove any policy ambiguities.

  3. earlofhuntingdon says:

    I would love to see the testimony of Fox executives and celebrities, presumably exposing their plethora of money-making lies. And this does seem to be a strong case. But as bmaz says, Dominion and Fox are the interested parties. We’re just the peanut gallery, which is also true of many of Donald Trump’s legal woes.

    • NickBarnes says:

      TFG’s most serious legal woes are (a) criminal matters, in which the public definitely has an interest, and (b) the case brought by NYAG against Trump Org etc, which is, IIRC, literally The People versus etc. It’s only things like E Jean Carroll’s suit which are pure peanut gallery.

      • bmaz says:

        Naw, Alvin Bragg is pretty much peanut gallery shit. And Fani Willis may well end up that way, we shall see. But at least the “people” have an interest in those.

      • earlofhuntingdon says:

        Trump may not find Carroll’s suit of interest only to the peanut gallery. The standard of proof is a preponderance of the evidence, in effect, 50% plus one. It might cost Trump, though not as much as the Dominion suit might cost Fox.

      • wa_rickf says:

        It doesn’t make sense that someone of Matthew Colangelo’s caliber, involved in 32 lawsuits ranging from immigration and civil rights to health care and state tax breaks, would partner with Manhattan DA Alvin Bragg if Trump’s indictment was merely peanut gallery material.

  4. Matt___B says:

    I heard that even if there is no settlement and the trial does take place, that all media is barred inside the courtroom anyway, so the “public spectacle” aspect is currently being denied by the judge. That means reporters’ sources will be from those personally inside the courtroom talking to them afterwards or a call-in audio recording of the prior day’s proceedings which the judge did concede to.

    • bmaz says:

      Oh, as far as I know there would be media there. Chancery Court is an open and public court. But not broadcast or live tweeting media. Their courtrooms are not huge though, so there may be a limit.

    • Ed Walker says:

      Even if they limit seats in the courtroom I’d bet they have a media room with at least audio and maybe even closed circuit TV with fixed cameras.

      • Matt___B says:

        I heard the judge is allowing audio only, and only after the proceedings for the day are complete and no video (even CC) whatsoever. Maybe they’ll give the media a roof over their heads, I don’t know about that aspect…

  5. Ed Walker says:

    One other interesting aspect of a settlement. Dominion and Fox have tons of lawyers working on this case, many of whom are probably junior. This case could make their careers, and be a really exciting thing in retrospect. Settling will really let them down.

    • Ravenclaw says:

      Though if I was an ambitious young lawyer, being able to tell future potential clients that I either (a) got Fox to pony up $500 million and a public apology or (b) got Dominion to agree not to force a public trial/mass resignations at Fox [depending which side I had been on] would be worth a lot. And we already billed for [hundreds? thousands?] of hours of our time.

  6. Rugger_9 says:

    Much depends upon the actual settlement terms. In CA, getting paid by your adversary means you’ve prevailed even without the admissions of wrongdoing or other specific statements. This marker can be leveraged as evidence by another suit (i.e. Smartmatic or even someone smeared by Faux like the GA poll workers) to show prior bad behavior.

    Settlements are also usually confidential fully buttressed with NDAs so we may not get specifics. I’d agree with bmaz and Earl on this, because juries are notoriously variable on stuff like this. I recall the case several years ago where the argument of defamation was proven, but the jury only rewarded one dollar in damages which was tripled due to the type of case. The plaintiffs went under with a thud shortly after.

    With that in mind getting something back (which will be substantial, I suspect) is better than risking jury fickleness.

    • Rugger_9 says:

      In case anyone wonders, we may see the settlement payout (I can’t see Dominion accepting a deal without one) in the financials that NewsCorp has to file as a publicly traded entity. It may be buried like the old expense report joke to ‘find the umbrella’ but hundreds of millions of dollars is hard to hide.

      That will show us if Dominion prevailed.

  7. FiestyBlueBird says:

    Thanks, bmaz. Good explainer.

    I still hope it goes to trial. I hope it penetrates some damaged minds. I never would have imagined decades ago that this nation’s most popular news network would be so thoroughly dedicated to advancing and monetizing what has become a full-fledged fascist movement.

    The damage they’ve done to susceptible minds is incalculable.

    But I get it, your point. None of us here or elsewhere are parties to this particular legal matter.

  8. Curveball says:

    Delaware is Dem-leaning. But a jury verdict there must be unanimous and that, in any situation, is a tall order. The evidence we’ve seen so far is damning, but there’s no sure thing. Except a settlement. But, gawd, I hate courtus interruptus.

  9. Overshire says:

    As just one more factor in the equation, but possibly the most important from Rupert’s end of things, I’ve seen it mentioned elsewhere today that Fox will be negotiating with a lot of cable companies over carriage fees in the coming weeks/months, and having their own employees testifying in open court that they are little more than a propaganda arm of the GOP might not be beneficial to increasing their apparent primary source of revenue.

  10. Bay State Librul says:

    Cleveland, Cooperstown, Toronto and Mount Rushmore.
    How about a Hall of Fame in Delaware, where the Court of Chancery is made up Judges who specialize in corporate law.
    Let’s enshrine the firm of Susman Godfrey, as they battle Fox News

    • bmaz says:

      “Cleveland, Cooperstown, Toronto and Mount Rushmore.”

      JFC. This is not some game of your fever dreams. How about we just ask for a fair trial or settlement, and not more of this relentlessly lionizing bullshit, which seems to be all you have had for quite a while. Give it a rest.

  11. John Forde says:

    Does Delaware have any cap on punitive damages?
    Can punitive damages be proportional to the damage the public has suffered?
    Take a swing at $50B. Smartmatic gets a second shot at the same. I’d really like to see some symmetry between the pain Rupert has inflicted on America and the pain he receives from it.

  12. David F. Snyder says:

    I’ll be surprised if Fox doesn’t offer a big enough plum for Dominion to settle. But if Fox is being miserly given their odds of beating the evidence, costs in lost ads etc. then Dominion will not, and should not, settle.

  13. Jharp jharp says:

    To me Fox has to be out of their minds to not settle.

    The trial and the truth getting out is gonna cost them a lot more than the $1.6 billion Dominion is asking for.

    And I 100% agree that Dominion doesn’t owe anyone other than it’s shareholders jack shit.

    Back up the Brinks truck. Fox is gonna pay dearly one way or another.

    • Katherine Williams says:

      “And I 100% agree that Dominion doesn’t owe anyone other than it’s shareholders jack shit”

      Yeah! Frack everybody but the shareholders! Screw the rest of the country!

      That soulless attitude by corporations is what brought the US, and the world, to this corporate hellscape of billionaires, and corporations affiliated with enemies of the USA controlling an entire political party. Where corporations are actively destroying the actual, you know, planet, and nobody is even trying to stop them. Because shareholders.

      It would be in the best interests of FOXnews and Dominion to settle. It would be in the best interests of Americans to go forward with the trial.

  14. Artemis says:

    While the “popcorn” aspect of the trial definitely appeals to my worst side, I think it’s unfair and surprisingly narrow-minded to argue in your piece that most people want this case to get publicity for their “puerile amusement” while completely ignoring the broader implications that people still believe these lies about the election and the truth could have an influence on future coup attempts, or lack thereof. While it’s absolutely true that the public has no say in whether it goes to trial or not, the desire is *obviously* not all about childish amusement.

    • bmaz says:

      Naw, I will stick with puerile amusement. Which you seem to admit appeals to you. Maybe it is YOU that is ignoring this lawsuit is a limited defamation action that has nothing whatsoever to do with remedying the wrongs or “coup attempts”, or whatever you generally feel. That is not how this works. So I will “narrow-mindedly” stand pat.

      • Artemis says:

        While I do plan to gleefully revel in the embarrassment for Fox on twitter, I am also using the trial to try to convince my uncle to stop watching far-right news. For his own good. Partly because he is retired, on dialysis, and didn’t want to get the Covid vaccine. So yes, it may directly impact whether I can get my uncle out of conspiracy theories. I am not trying to claim anyone else has to make decisions based on my attempts with my uncle…that would be silly. But it’s also silly to ignore the broader context of this case, including jan6, etc. But maybe that’s why you’re a lawyer, not an academic. I would have preferred a more academic deep dive on the topics than a lawyer flippantly saying “Fox vs. Dominion doesn’t care about your feelings.” It just doesn’t add much to the conversation.

        • bmaz says:

          “But maybe that’s why you’re a lawyer, not an academic. I would have preferred a more academic deep dive on the topics than a lawyer saying “Fox vs. Dominion doesn’t care about your feelings.” It just doesn’t add much to the conversation.”

          What a load of crap. I have multiple degrees, including the high holy doctoral one. You know what does not “add much to the conversation”? Horse manure like academia versus people that not only have that but also practice for decades in the specific field at current issue. Wanting to help your uncle is admirable, and yet it is beyond nonsense to expect this limited civil case to do that for you. THAT is the epitome of adding nothing to the conversation. This is precisely why I wrote this post.

        • David F. Snyder says:

          A point of seeing takes precedence over experience.

          But not even creative insight is a substitute for experience.

          — an aphorism, via Robert Fripp

      • Troutwaxer says:

        Agreed. The lawsuit isn’t about “remedying coup attempts,” but the overall effect of Fox News losing badly might be to do a little remedying (to a lot of remedying) depending on exactly how things play out. But that’s absolutely not the reason for any part of the trial/settlement.

        Dominion has a tort. That is all.

        • Artemis says:

          In the history books, this case will go down as a limited civil case that had nothing to do with anything else?

        • bmaz says:

          It already is. Can never be a salve for your perceived politics. Never. The only way it will ever be as important as you claim and clamor for is if it results in the eventual undoing of NYT v. Sullivan. Is that a “victory” you really want? Have you really thought though anything here??

        • Artemis says:

          I meant history books, not law school textbooks. Look, I’ve been working on my uncle for 2 years already, so I know that there isn’t going to be one thing that magically pulls him from the brink. But examples with lots of info available, repetition, and time does work to change minds. In that broader context, having more information from a trial might be helpful in an instructional way to change minds. But like I said, you are only viewing from the law perspective.

        • Artemis says:

          How does this case fit into the broader sociopolitical context of this historical moment in time, and what are the possible ramifications of wide publicity vs quick settlement on public perception and future elections? These are interesting questions that have nothing to do with the law. Flippantly saying this case is utterly meaningless ignores so, so much.

        • Artemis says:

          The reality that you don’t seem to want to acknowledge is that it might make a difference for public opinion whether this is a six week trial or a swift, confidential settlement. I’m pretty sure Fox’s lawyers are thinking about that reality right now.

        • TREPping says:

          Artemis, I sympathize with your position, but I do not see an outcome in favor of Dominion has changing much of anything. Fox World (the viewers not the network) will still stick with the brand that reinforces their worldview.

          In terms of history, I am skeptical that this case will matter by itself. What will matter is where the outcome fits in with other outcomes before and after. As a country, we are still in dangerous territory with one political party active seeking to overturn democracy and impose an authoritarian model that is an blend of fascism and theocracy.

        • bmaz says:

          I think there is one way this case could be historically changing, and that is if it resulted in SCOTUS eliminating the actual malice standard of New York Times v. Sullivan. And that is a non-zero possibility with this SCOTUS. Other than that, probably not so much from this one individual case.

    • LeeNLP941 says:

      I’ve had enough of an academic career myself that while I feel due respect and amazement at others’ levels of knowledge and accomplishment in matters like law that I have close to no grasp of whatever, I am still not terribly impressed by the years or the degrees or the post-degrees and all the certificates and accoutrements that come with those accomplishments. And while I know that I know jack shit about the technical aspects of the Dominion lawsuit, I also know that the trial matters for reasons unrelated to those aspects, just as any medical procedure matters for reasons beyond the domain and technology of medicine. Both law and medicine came into being because things other than law and medicine matter in this world; they didn’t evolve as ends in themselves. Calling citizens’ concerns for how the trial plays out “puerile” or “popcorn worthy” is like calling a family’s concern about the outcome of a brain operation on a beloved uncle “puerile”, because they know nothing about the science of the brain or the unfathomably complicated surgical techniques involved. As I sit in the waiting room day and night, it has nothing to do with puerile interest, and I can attest that I will be making no trips to the vending machines for popcorn.

      And just like the brain operation, the Dominion trials matters. It matter for moral reasons, and the citizens of this country and of the world have a vested interested in the outcome of the trial for those reasons. *Of course* they don’t have legal standing, nor should they. But I would argue that if the moral reasons didn’t exist, then both the legal system and medicine itself would be completely superfluous and ought not to exist either.

      • bmaz says:

        1) I do not give a damn what you are “impressed with”.

        2) No, you really do not know jack shit about the applicable law.

        3) You know who “medical matters matter to”? it is to the actual patients, not clamoring jackasses on the internet.

        4) This is neither a “brain operation” nor any of the other of the garbage you have raised. Did you learn nothing from the post?

        5) This is a completely full of shit, and false posit, comment. But, hey, thanks, please tell me more about your “morality”.

  15. subtropolis says:

    Dominion brought this suit ostensibly because its public image had been tarnished by FOX. Thus, they have acknowledged a public interest in the case, albeit not as plaintiff but as — they hope — an interested party, though not in the legal sense.

    • bmaz says:

      Lol. No, simply because public damage was claimed absolutely does not make the “public” an interested party. Where do people come up with this stuff?

      • R. Stanton Scott says:

        Dominion cares how the public thinks about the case and its outcome insofar as it affects its corporate image, and that fact influences whether Dominion settles, and what terms the firm would accept. This means that public interest in the case matters to Dominion-and likely also to Fox.

        This case and it’s resolution has and will have sociopolitical impacts outside the purely legal issues involved. This is true whether you think it should or not.

        • bmaz says:

          And you think that is key to an actual jury trial? That is absolute bullshit, “whether you like it or not”. Again, jury trials are NOT about your personal sociopolitical concerns. And, by the way, if this goes south for Dominion, and it easily could, they will not have an extant corporation, much less image.

        • Mattpete says:

          Simply two companies doing what’s in the best interest of their shareholders. Dominion is no different than Fox.

  16. Purple Martin says:

    It’s certainly logical for Dominion to consider a settlement with a lower damages amount. I would hope it still includes as clear an apology—aired on a mandated, repeated, primetime schedule—as they accepted from the much less deep-pocketed conservative web site who agreed to publish the below. I’ve removed their site link but this Snopes confirmation links to the the statement:

    We received a lengthy letter from Dominion’s defamation lawyers explaining why they believe that their client has been the victim of defamatory statements. Having considered the full import of the letter, we have agreed to their request that we publish the following statement:

    American Thinker and contributors Andrea Widburg, R.D. Wedge, Brian Tomlinson, and Peggy Ryan have published pieces on [website] that falsely accuse US Dominion Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation (collectively “Dominion”) of conspiring to steal the November 2020 election from Donald Trump. These pieces rely on discredited sources who have peddled debunked theories about Dominion’s supposed ties to Venezuela, fraud on Dominion’s machines that resulted in massive vote switching or weighted votes, and other claims falsely stating that there is credible evidence that Dominion acted fraudulently.

    These statements are completely false and have no basis in fact. Industry experts and public officials alike have confirmed that Dominion conducted itself appropriately and that there is simply no evidence to support these claims.

    It was wrong for us to publish these false statements. We apologize to Dominion for all of the harm this caused them and their employees. We also apologize to our readers for abandoning 9 journalistic principles and misrepresenting Dominion’s track record and its limited role in tabulating votes for the November 2020 election. We regret this grave error.

    Yes, I agree with bmaz that’s entirely up to two parties’ based on their business judgement, but Dominion’s public statements have said both calculated monetary damages and Fox’s public acknowledgement of the false information they aired, are necessary if they are to be made whole.

  17. NaMaErA says:


    Not a lawyer. In my view, Fox has done irreparable harm to the republic starting at least in 2000 w/ their “Bush wins Florida” Hail Mary (which worked), with the stakes and the harm growing ever since, peaking w/ Trump from 2015 onward (or earlier, if you count the racist Obama birther platform). What is the actual downside of (1) making them pay many dollars, and (2) suffer grievous public humiliation as a result? The only thing they care about is $ and prestige and if you take away both, just maybe they’ll change their behaviour. Kidding, of course, but we should still collectively kick them in the groin anyway because they so dearly deserve it.

  18. BobBobCon says:

    Gabriel Sherman’s story on Rupert Murdoch has me wondering if part of what’s happening here is due to Murdoch being a much less engaged (or possibly rational) client than he might have been a decade ago when his phone hacking disaster hit.

    The whole story with the Jerry Hall divorce and the apparent affair, engagement and then broken engagment with Christian nationalist Ann Leslie Smith is really odd, and overlaps with much of Fox’s lack of an agreement on settlement with Dominion over the past year.

    Maybe Murdoch was just distracted, maybe he was paying too much attention to the arguments of Smith, maybe he is actually in decline, who knows. But all of this sure seems to have been eating up a lot of his attention at a minimum.

    • Rayne says:

      Meh. More like he let his personal preference for primogeniture get the best of him, allowing Lachlan to run too far to the reactionary right. Had he let his younger son James run the show Fox might not have fucked up quite so badly.

      • BobBobCon says:

        Rupert was an idiot for thinking he would live forever, or that his DNA somehow would be an extension of himself.

        I get the sense, though, that Lachlan is neither the sharpest nor bravest tool in the shed, and he was completely unable to tell the lawyers before they handed over the documents to just shell out an extra $500 million or $1 billion to put all of this in the past, no matter what dear old Dad was telling them.

    • DizziNes says:

      IMO, FN has been on an inevitable path to destruction for years. Once Roger Ailes left, no one had the knowledge/ control of the pieces and parts needed to keep it from going off the rails.

      It would be interesting to know who the folks are on the FN side discussing the settlement. How many are there and what weight does each have in deciding what’s acceptable? Depending on who is in the mix, it may be tough for FN to agree on the terms of any settlement. The list of folks who will be impacted by an agreement is long, with a lot of push-pull interests:
      • Rupert, of course,
      • The rest of the Murdoch family: sons, daughters, wives, ex-wives, ex-girlfriends, etc.
      • The FN talent: Hannity, Carlson, Baier, etc.
      • Other executives and shareholders of FN, Fox Corp., and News Corp.

      (Mod: First use of my new 8-character name.)

      [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

      • BobBobCon says:

        Ailes had the pull to fire Glenn Beck when he became inconvenient. Nobody today at Fox has the pull to dump Hannity or Carlson.

        I guess to be accurate once Ailes was a liability due to his assaults, nobody had the pull to fire him either, until it all went public.

        It seems pretty clear that Fox has lacked real leadership for ten years. That says something bad about Jeff Zucker, Licht, and whoever has run MSNBC that they couldn’t capitalize.

        • HikaakiH says:

          Regardless of Fox’s leadership issues, how would those you name have been able to win over the archetypical Fox viewer without shedding as many or more of their own existing set of viewers? The Fox viewer, as Murdoch himself said when expressing worries about OANN et al, wants to hear comforting fantasies that the world conforms to their prejudices. I don’t think you’d seriously think CNN would be a better business today if they had run even harder to the right and were serving up right-wing fables on prime-time hours each day to win themselves some fraction of Fox’s viewership.

        • BobBobCon says:

          A big part of the problem is seeing things simply as a function of ideology or partisanship. Fox gets a lot of viewers by default due to production values and understanding the non-political aspects that hold viewers. Not so much the typical Tucker Carlson viewer, but definitely the people who tune in to Fox and Friends or the afternoon shows. And by getting those viewers, Fox builds its audience for the rest of its programming.

          CNN’s talent development is also abysmal. They have kept people like Wolf Blitzer and Don Lemon around for years because they have no replacements, despite the fact that there are almost no real loyalists for these people.

          It’s all management by inertia, and that’s a terrible way to operate in this particular business.

  19. Drew in Bronx says:

    Thanks for this. The observations about the amount of money damages and the advantages of a settlement as opposed to winning a verdict that will be appealed are surely correct. I do think that Dominion has an important *business* case for needing reputational repair, that won’t be addressed by money damages and that will be the most difficult point of negotiations.

    However, I think it is important and significant that the judge said that he was likely to order an investigation into whether Fox lied to him about Rupert Murdoch’s role at Fox News. That makes it far more likely that he would grant Dominion’s demand to have him compelled to testify at the trial. It would make a lot of sense that Murdoch would decide to have his attorney’s offer “whatever it takes” to settle, including enough admissions to get Dominion to accept the cash. This might not be enough to satisfy all our fantasies of the public humiliation of Tucker Carlson, et al. but it might be significant. $500M is a lot of money for most people–it wouldn’t surprise me if that would be a number Dominion would accept if there non-monetary needs were satisfied.

  20. Molly Pitcher says:

    bmaz, If Fox settles with Dominion, what impact might that have on the Smartmatic suit ?

  21. JDAL says:

    C’mon people, this isn’t the Palmer Report. Still waiting for the single blow, the deus ex machina, that will thrust us back to the saner world of yesteryear? It ain’t happening, and certainly not in this one court proceeding. BMAZ has nailed it, and I am astounded at his restraint and comparative good nature in rebutting all the magical thinking. Not what we have come to expect!

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters AND STICK WITH THE SAME USERNAME. We are moving to a new minimum standard to support community security. You have a nasty history of changing usernames, having commented here as John Dal, J Dal, John Dalessandro, John DAlessandro, J Dalessandro, and now the far-too-short JDAL. If you do not select a compliant username and stick with it each time you comment, you will find your comments get stuck in auto-moderation. Thanks. /~Rayne]

    • Troutwaxer says:

      While I agree with bmaz that the trial is central, and that we can’t plan on getting the kinds of public, Fox-or-Trump-humiliating spectacle we’d like to see, there’s no denying that whatever happens will have some political effect. It certainly won’t change what the fanatics think, but it might push the more independent thinkers amongst the public an unknowable distance in their understanding of just how poor the factual case for Republican policies or ideas might be.

      But the key word in what I wrote above is “unknowable.” Depending on what happens and how it’s interpreted the push could be anything from microscopic to significant, where “significant” means, at the outside maximum, a single percentage point.

  22. Village idiot says:

    (apologies if I’ve used my other email address; I comment here rarely).

    As this is a speculative thread I wanted to ask something. There’s always a possibility that Dominion might settle. They’ve asked for a lot, but that could have been a negotiating position as much as anything else, and it makes sense to get the settlement locked in while Fox still have two coins to rub together.

    However they’re not the only show coming up – Smartmatic are in the wings, making what seem like similar claims against Fox, and asking for even more money. This makes me think of two questions. The easiest is that what happens to the evidence gathered so far? Can Smartmatic use it? Could it be buried as part of a settlement between Dominion and Fox, or is it already all out there?

    The second is a question to the fine legal minds out there – if you were Fox, what would you do/advise Fox to do? Settle to get Dominion out of the way and limit the damage from Smartmatic as, I presume, being found guilty in one trial is unlikely to help in the next one? Tough it out and hope you get away with it?

    [FYI – I am changing your email to match your other more frequently used address. You’ll find mismatches cause delays in your comment’s publication, including times when you’ve not added a space between “Village” and “idiot.” Thanks. /~Rayne]

    • bmaz says:

      “As this is a speculative thread I wanted to ask something. There’s always a possibility that Dominion might settle.”

      Of course. Did you actually read the post or comments? Dominion is NOT Smartmatic. Dominion cannot and should not worry about Smartmatic.

      • Village idiot says:

        I was probably less than clear. The part you quoted was the setup for the questions (note the lack of question marks) and it seemed to be in-line with the article’s premise. I’ll try to minimize the day drinking from now on. Not sure what comments you’re referring to though (but I’ll take a look at the ones the precede it again).

        I thought I was asking about:
        – whether Smartmatic would have access to evidence from the Dominion case? Now that Dominion have settled their case this seems even more relevant.
        – what would Foxes best litigation approach be, given they would need to defend the Smartmatic case too?

        Events have overtake speculation, but I’m still curious. Both questions still seem relevant. Apologies if the questions were annoying simplistic, or OT.

        • bmaz says:

          And maybe I misunderstood you. Yes, I would fully expect Smartmatic to have access to what Dominion had. Whether through professional courtesy or subpoena. I “think” Fox will settle Smartmatic too. Your questions are fine and appropriate…has been already a long day here.

  23. Savage Librarian says:

    Dominion has an interesting philosophical history, plus a dynamic with a private equity firm that I just learned about today. It will be interesting to see how these things impact the resolution of this case. Here are some excerpts form the article I cite below:

    “The company is named after Canada’s 1920 Dominion Elections Act, which removed barriers to voting that had excluded women and voters of certain racial, religious or economic groups. Mr. Poulos’s business idea was to help people with disabilities, such as paralysis or blindness, cast their ballots as independently as possible while still leaving an auditable paper trail. Dominion incorporated accessible technology like audio readouts and large screens into election machines.”
    “How did Dominion get started? John Poulos, the company’s chief executive, started Dominion out of his Toronto basement in 2003. The company scored its first American contract in 2009, providing voting technology to dozens of counties in New York. The next year, it moved its headquarters to Denver, where it now has several hundred employees.”
    “Staple Street Capital, a private equity firm in New York, is the majority owner of Dominion. Mr. Poulos, Dominion’s chief executive, retains a roughly 12 percent stake. PennantPark Investment, a financial firm in Miami, is another investor.”
    “Staple Street’s owners, Stephen D. Owens and Hootan Yaghoobzadeh, first worked together in 1998…Mr. Yaghoobzadeh had authorized Dominion’s lawsuit against the network…”

      • Troutwaxer says:

        I think a skilled lawyer could discuss those facts in a way that made Dominion into very sympathetic plaintiffs. I’m not sure that’s necessary in this case. I think stuff like Dominion’s ideal of making voting easier for handicapped people is kinda heartwarming. Now contrast that to Fox News’s history, which looks like one shit-show after another.

        Granted, this isn’t the way a court case should be won, but the idea that a good lawyer would miss the rhetorical possibilities is something I find hard to believe.

        • timbozone says:

          There are different kinds of “good” lawyers apparently? For instance, ideally, you might want a lawyer that can communicate your story beyond the basic facts of the case. On the other hand, you might wish to consider getting a lawyer that can cut out all the extraneous stuff and get to the heart of the case quickly and succinctly. Also, you might want a flexible lawyer that can quickly change course depending on circumstances. In Dominion’s case, they don’t appear to need much sympathy from the court as they apparently had a decent case without needing extraneous garnish. I guess the question is whether or not you care about PR or just winning the case based on its merits in court. (Or reaching a settlement before trial—the apparent actual outcome.)

  24. flounder says:

    Dominion is basically dead as a company thanks to the malicious lies that Republicans like Fox spread. So my take is Dominion will either settle for fuck you money that’s like what the owners valued the company at 5-10 years from now with no acceptance of liability. If Fox wants to pay less, they have to do a high level of public shamings/apologies that allows Dominion to attempt to salvage an elections based business. And if Fox isn’t willing to meet these terms, Dominion rolls their dice on the trial.
    I think Fox might settle mid trial fwiw when stuff that will damage them in other trials starts becoming public.

  25. Cheez Whiz says:

    What I’m not seeing is any speculation or thought on what it is Dominion or Fox would require from a settlement. I suppose bmaz would say it’s none of our beeswax but by that standard nothing about this case is our “business” so we should all go back to Trump. But if all Dominion wants is a payday, it’s all over but the shouting. But what if they want something else? Something worth more that the odd billion dollars? Either way we’ll find out soon.

  26. 2Cats2Furious says:

    Will Dominion settle? I honestly don’t know.

    But for those insisting that Dominion should NOT settle, there are a lot of arguments as to why settlement could actually be a good thing.

    As a lawyer who has actually tried cases to a jury, jurors can be unpredictable buggers. If you can come out ahead financially via settlement, take the win.

    More importantly, a settlement could give Dominion better terms than they would get from a jury trial, which can only give monetary damages. In contrast, Dominion could insist that any settlement requires Fox to admit that they didn’t conduct proper due diligence before publishing defamatory statements made by Powell, Rudy, and Lindell re: Dominion. Fox has never offered a retraction of their bs claims against Dominion; a settlement could force them to do so now. If I were representing Dominion and could get Fox to post an appropriate retraction, plus appropriate $, I would do so in a heartbeat.

    • bmaz says:

      Yes. Also, settlement eliminates pesky appeals that can drag on forever. By the time any trial would be over, there will be a ton of appealable issues (there already are several). Fox can wait that out, can Dominion?

      Do people really think Dominion should risk their entire business existence so random uninvolved people in the US can have dinner time chats with their crazy aunts and uncles about how bad Fox is? The logic of that completely escapes me.

      • Konny_2022 says:

        Exactly. And settlements remain possible along the road anyway. I don’t know the number, but I do know that many post-trial settlements happen. So it comes down to the assessment of the worth of the current bargaining chips for a pre-trial settlement. Generally speaking: getting an obligation from the other side to pay a considerable amount right now is better than to wait for a higher amount that may or may not materialize many years from now. That’s applicable not only to the damages but also to declarations Dominion might obtain from Fox.

        • earlofhuntingdon says:

          It also depends on how the trial develops day by day. Lawyers have good days and bad, good decisions from the bench and not so good. Witnesses can perform as expected, worse, or better. External events can have an impact, if not on the trial, on what each side thinks will be the best deal they can get.

      • flounder says:

        I think currently that Dominion’s entire business existence is already over at present. I mean we still see Dominion scapegoated in random US Counties where MAGA gets a hold of a little power.
        With this dynamic, what I would think Dominion is looking for is enough money for owners to scrap the company for parts and feel like they got a good ROI. or else less money with a lot of grovelling from Fox and enough damage to the Stop the Steal movement that they can recoup some business opportunities. Should be interesting to see how it all plays out.

      • David v Falkner says:

        Fox can wait out the appeal all it wants. 9% compound interest on a billion is a pretty hefty hit

        • bmaz says:

          Oh, can it now? That assumes they ultimately win the appeal. What if Dominion loses ultimately? What if the result of appeals is to remand for a new trial? How are they going to survive that? The blitheness with which a lot of people assume a giant win for Dominion is astounding.

      • Drew in Bronx says:

        Michael Avenatti was never the most scrupulous of lawyers, but from the facts that came out during his various trials, I noticed that one thing that happened was that he won a $400 million dollar verdict, apparently thought it was in the bag & spent money like he had his share in the bank and then it was completely reversed on appeal, leaving him in the hole on the case.

        A lot of his worst stealing from other clients commenced shortly after that.

        So, settling IS a lot better for plaintiffs and their attorneys than winning a contested verdict from a company that has the wherewithal to vigorously appeal forever.

  27. Bay State Librul says:

    What now?

    Even a WSJ commenter can be aspirational in his approach to the trial.

    “I’m sure the bean counters at Fox would love to settle the case – probably with an airtight non-disclosure agreement – but this case needs to go to trial. It raises serious questions about the extent to which the first amendment protects a media outlet that promotes knowingly false speech. And wasn’t it Donald Trump who said that America’s libel laws were too weak?

    • bmaz says:

      That WSJ commenter would be ignorant, and apparently has no idea in the world about what actual jury trials are about and how they work. And, no, Trump doesn’t think “America’s libel laws are too weak”, he thinks they are far too strong. Seriously where do you come up with this stuff?

    • earlofhuntingdon says:

      It’s neck and neck to determine whether the WSJ or NYT have, as a body and a few individuals excepted, the worst OpEd pages in media.

  28. waban1966 says:

    Does anyone know of any detail-oriented reporter doing a live-tweet or blog (like Brandi Buchman is doing for the Proud Boys trial)?

    Also, an observation on the settlement question. There is a good chance that a driving motive for Dominion comes from the fact that Dominion is private-equity owned. Not just a stand alone company.

    A smallish-to-mid sized fund. Thus the ownership isn’t driven by mere survival — they need IRR (internal rate of return) in line with their projections. The IRR of a fund is what they market when they want to raise the next fund. And the market competition for investors is fierce. That is, the driver for the settlement likely is more than just the narrow merits of the suit. Rising interest rates also drive down the potential return on any other fund investments. That is because existing investments, likely leveraged, may also be performing below the plan for the fund as a whole.

    If Dominion’s growth prospects have been seriously damaged for good — no red state might ever buy their machines — then there is a fundamental impairment of the investment. Dominion is large enough to probably be one of the owner-fund’s larger investments. If so, the lawsuit becomes the investment and a big driver of the total return for the fund. I can imagine that it is THE investment that could drive the return for this fund, and the private equity owners want to raise another fund after this one.

    Winning big with actual damages (and not just taking a deal) could have the advantage of letting the private equity owners claim their investment thesis was right, for their future investors. And getting a chunk of punitives makes the current investors happy, to want to invest again.

    This is compared against a traditional risk-averse settlement just on the probabilities of the litigation.

    You never know — a lot depends on the style of the PE owners, other investments, fundraising prospects, and even the views of the PE fund’s larger investor(s) (who themselves may be fine “shooting the moon”).

    • c-i-v-i-l says:

      Re: your question, from Brian Stelter: “Friendly reminder as the Dominion v. Fox trial begins — there is no live video or audio stream, so the best way to follow along is through the reporters in Wilmington — here’s a Twitter list of reporters I am curating
      So, not a specific reporter that I’m recommending, and some of the people in his list are commenting on other things in addition to Dominion v Fox, but it still seems useful.

    • Fran of the North says:

      This is an insightful analysis. Yes, venture money may have a completely different set of desirable outcomes. Who knows, one might be that Fox get off with as little impairment as possible. Doubtful that they make the decision, they just have the executive team’s collective ear.

    • Danzbe says:

      “Dominion is large enough to probably be one of the owner-fund’s larger investments” Dominion is an investment out of Staple Street Capital Fund II, a $260m fund. The purchase price wasn’t disclosed but they raised just $30m of debt in 2018 for the deal (per PitchBook) meaning that it likely less than a $20m equity check – not a huge concentration within the fund itself at all. IRR is NOT the only thing that funds use to market themselves, but it is one of a few important benchmarks. Staple Street also already closed on a $520m Fund III in October 2020 so its likely that Fund II was performing (or marked) well already. With the next fund already raised they’re not as dependent on the IRR, MOIC, or anything else of Fund II for their fund raising going forward making it much less likely to drive the decision making process.

      As to the “Winning big with actual damages (and not just taking a deal) could have the advantage of letting the private equity owners claim their investment thesis was right” – I seriously doubt their thesis revolved around winning a lawsuit against Fox. It is all going to come down to probability weighted payouts (settlement vs. trial) discounted out however long it might take to go through appeals processes etc. If Fox wants to make this go away with a settlement they’re likely to have a very receptive audience from Dominion/Staple Street who will likely take a fairly significant discount given the uncertainty related to going to trail.

      LPs aren’t going to have any power to dictate if Dominion “Shoots the moon” or whatever plus they’ve already either re-upped or not in the next fund anyways. Staple Street doesn’t give a shit about any of the moral or public concern here, they’ve got a fiduciary duty to their LPs who gave them money to invest. They’re going to take whatever the best deal they can get in order to return the most amount of cash to their LPs on a risk adjusted basis, nothing more.

      [Moderator’s note: Please do not change your name or pull other machinations just to force a comment to clear. Your comment may have included a word which caught the auto-moderation as an example, and sockpuppeting won’t fix that, only making more work for the moderation team.

      But you do need to change your name to comply with the new minimum standard to support community security. lease choose and use a unique username with a minimum of 8 letters. Thanks. /~Rayne]

  29. Rwood0808 says:

    “I would very much think the judge here would rather it be sooner rather than later, but doubt given the strain on the court, would probably accept it at any point.”

    I could give a rat’s ass about the strain on the court. Do your frickin job.

    Like it or not things happen outside the courtroom, and not all people/companies are motivated by the all-mighty dollar alone. The deciding factor will be what value the owners of Dominion place on their business. If they view it as something they spent a large portion of their life building, a labor of years, they may have a different view than an outsider who is merely assigning a price tag to it and looking for the easy way out.

    It’s not hard to see what a Fox News apology is worth. If Dominions goal is to save their company they have to restore value to the name. A trial that puts all their talking heads and their lies on display for weeks will do that far more than a settlement and a one-time apology. Unless we know the true motivation behind the owners of Dominion it’s rather early to predict how this will go. Personally, I hope they are pissed as hell and want nothing more than to see Fox burn to the ground.

    There’s also the next case, and the ones after that to consider. Smartmatic has their own suit filed, and I’m already reading about shareholder cases, which could multiply rapidly. Fox may not die from Dominion alone, but it could be the first domino to set that in motion. What does Fox insurance company feel about this?

    If Fox manages to escape with a settlement then it will be yet another example of the rich buying their way out of trouble. Something that will perpetuate the damage Fox has already inflicted on us all.

    • bmaz says:

      So you don’t give a rat’s ass about strain on the court? Seriously?? This one civil case is THAT important to your world? Resolving this WOULD be doing their job. This is a seriously idiotic comment.

      Suppose this civil case causes 25 murder cases to be neglected or dismissed, do you give a rat’s ass about those victims, or that part of the Delaware justice system? Wilmington is not a giant metropolis with unlimited resources. And, yeah, it is a small enough court system that judges such as Davis try criminal cases too, not just civil ones. Do you “give a rat’s ass” about that, or is it all about your little fee fees? JFC.

      • Rwood0808 says:

        If one civil case can derail that many murder cases then the court has the problem, not me or my “little fee fee’s”.

        Sick of hearing about the “strain on the courts”. If it’s too hard to do the job you’ve been entrusted with by the people then get the F out. Letting cases slide because they are “too hard” or a “tax on resources” is the reason we get lifelong grifters like trump in the first place.

        That excuse would get nowhere in ANY other job/position, so why are we expected to tolorate it when it comes to upholding the law?

        • bmaz says:

          You are full of shit. Since you care so passionately about this, I highly suggest you donate every penny you own to the New Castle County Court system. Do your donation job if you are so fucking concerned. And do it immediately.

          Otherwise spare me. “So why are we expected to tolerate it when it comes to upholding the law?” Because of so many concerned citizens like you never pay enough taxes. That’s why. Get a grip.

      • waban1966 says:

        I hear you about the appeal (and what a jury might actually do before that), but how about this logic? Would the Delaware Supreme Court really overturn a verdict on First Amendment grounds? As I understand the briefing/SJ decision, it’s pretty clear that no funky state privileges apply. That would leave SCOTUS for a 1st Amd appeal. The betting line there is that they want to overturn NYT v Sullivan. Which would make it easier for the plaintiffs to prevail. To be fair and realistic, protecting big companies and Fox in particular could be something that SCOTUS feels it needs to do.

        As for the jury, lest we not forget that a jury in the Sandy Hook case just gave a stunningly large punitive award. Not exactly the same, but also not totally different.

        • bmaz says:

          Would the DE Supreme Court overturn? I don’t know, but it is possible because they protect corporations in DE, so you never know. Either way though, that is the delay in appeals problem, it “would” get to SCOTUS.

          NYT v. Sullivan originally was litigated in Alabama, went through the Supreme Court of Alabama, and then reviewed by SCOTUS. This is my point. And, yeah, the original plaintiff in Alabama, Sullivan, originally won, until he didn’t.

        • waban1966 says:

          Dominion is possibly now in a no-growth zone — having been boxed out of new business in red states. In which case even a decent probability of an upheld verdict with the 9% post-judgment interest rate is not a bad investment thesis.

          Sorry I wasn’t clear — of course a federal question appeal (1st Amd) from the Delaware Supreme Court can go to SCOTUS. I just keep thinking that (1) SCOTUS wants to retreat from Sullivan, not help a defendant on that and (2) the case would be so high profile that CJ Roberts might not want it there at all to rule for Fox, to prevent another hit to court legitimacy. That said, his project to preserve Court legitimacy is in a total shambles, and he now has much less control over cert decisions.

          I have this nagging feeling I am missing something on the 1st Amendment appellate dynamic, so let me know.

        • bmaz says:

          Heh, we are getting pretty far out here. I just don’t know. But it is my inclination that if any party appeals, 1A will be argued in some fashion. Somehow. And I do think SCOTUS is dying to address it, though as you note, maybe not CJ Roberts. He can’t stop things anymore though, and that is a problem.

        • Super Nintendo Chalmers says:

          You keep mentioning Sullivan. The judge already ruled that Fox defamed Dominion and that they couldn’t hide behind the First Amendment and the “we were just asking questions” defense.

        • c-i-v-i-l says:

          No, the judge hadn’t “already ruled that Fox defamed Dominion.” He ruled for Dominion on falsity, but Dominion still needed to prove actual malice in court (now mooted by the settlement).

        • earlofhuntingdon says:

          The actual malice standard evolves around the intentional falsity of the published statements. Pretrial events made meeting that standard unusually easy. But complex trials, jury verdicts and appeals made it no sure thing.

    • waban1966 says:

      While I disagree with a bunch of this, you rightly raise the motivations of the people who built this company. They did sell to private equity, but retained a 25% stake, according to reporting. That could mean that they already have their downside protected from their “life’s work,” from cash they previously took out. That gives them a potential incentive now to shoot the moon (not settling). And while they are a minority owner, the go-forward value of the operating investment depends on them being happy, given the specialty knowledge of a company like this. Thus they could have more de facto say than even the investors technically in control.

      All this just goes to the point that while there is always a financial calculus as the driver of these things, the basic risk-adjusted probabilities (merits and damages) of the lawsuit alone often don’t comprise all the elements of the cost-benefit analysis for the parties who technically and/or actually have large roles in the decision making.

      • Rwood0808 says:

        Exactly. Fox knows where their true value lies. They committed these acts so as not to loose their viewers. The value to them is ALL about public perseption. Without the rubes they feed their propoganda to every day they know they are worth nothing.

        Dominion knows that their value is also tied to their public image. If the Fox lies are allowed to stand then Dominion is worth nothing.

        This case is ALL about public perception. The money is secondary to that.

        • waban1966 says:

          Disagree. Fox could be “ok” losing (rather than agreeing to a big settlement and thus de facto conceding), instead blaming it on “woke” courts in a blue state. Even a massive verdict doesn’t bring down Fox. That might be their best play with their audience, if they still think OAN is a threat. And even if not. Their hosts are not tethered even to what testimony they give in court, because Fox does not expose its audience to the contradictory facts. And there will be no video which is the only thing that actually can change minds for the public.

          It’s always about the money. It’s just not always about the cost-benefit of just the lawsuit by itself. Long-term shareholder value for a “news” organization with the business plan that Fox has (controlling narrative without challenge) isn’t in the danger of the immediate verdict. Their revenue is mostly tied to cable carriage fees. Anyone who thinks that Fox has reduced leverage on that over “because” of this suit is dreaming.

        • Rwood0808 says:

          I can agree up to a point. Assuming that the Fox bubble is impenetrable is where it gets grey.

          It’s not, and Fox knows it. Social Media plays a huge part of what Fox airs. It’s to the point now that their viewers “beliefs” get started there and they then go to Fox for confirmation. It’s become a wag the dog structure and there is not a lot that Fox can do to change it.

          But that bubble gets pierced. A lot. Those conversations with the crazy aunts and uncles at the dinner table do occur, and we can already see the results with the independent voters in the polls. It’s a system based on lies, and that ground is ever shifting with a finite stability.

          It’ll be interesting to see what impact this trial has on the Fox viewing public. The lack of video will lessen the blow, but the word will get out.

          I have to wonder why Dominion settled with OAN and the others, yet chose to go all-in on the Fox suit. That may be an indicator of their mindset right there.

        • Rayne says:

          I have to wonder why Dominion settled with OAN and the others, yet chose to go all-in on the Fox suit.

          Think number of voters reached by each of the outlets. That’s why Fox, IMO.

        • Rwood0808 says:

          Simple math + cutting away the dead weight to focus on the real prize. It was retorical question, but I think it speaks loudly as to their intentions/end goal.

          Somebody obviously recognizes that this battle is happening outside the courtroom as much as inside. Viewers = Votes. Votes + Money = Power.

        • bmaz says:

          And somebody, literally you, seems to think this is about things personal to you, and what you get to, in a very uninformed manner, yap about on this blog.

          “Somebody obviously recognizes that this battle is happening outside the courtroom as much as inside. Viewers = Votes. Votes + Money = Power.”

          Have you ever been in a real jury trial courtroom, much less tried cases in one? No… then take a seat.

        • Rayne says:

          It’s the demographics of the audience as well. OAN will skew younger than Fox’s audience, and the older audience is more likely to have both money and political clout.

        • Rwood0808 says:

          From PEW:

          “Fox News was more popular among adults older than 50, but has strong viewership of adults under 50 as well. Thirty-nine percent of adults between ages 30 and 49 said they got political news from Fox News while just six and five percent said the same about Newsmax and OAN, respectively. Thirty-seven percent of adults between 18 to 29 got political news from Fox News while six percent said the same about both Newsmax and OAN.”

          I didnt realize the demographics were that skewed. Good point.

        • earlofhuntingdon says:

          For millions of people, Fox is part of the firmament. It’s real news organizations that are radical interlopers.

        • bmaz says:

          Well, jeebus, sure. Let’s insist that the trial court justice system help out the dumb ass conversations with the crazy aunts and uncles at the dinner table. You have any other brilliant ideas for our justice system?

  30. Attygmgm says:

    @McFarlaneNews, meaning Scott McFarlane of CBS, appears to be intending to cover the Dominion v Fox trial.

    I’ve done civil litigation for 40+ years, including defamation trials, almost always for the plaintiff. I long ago started advising clients that if they get an offer not that they LIKE but that they can LIVE WITH, they should seriously consider taking it.

    Bmaz is right that while many of us follow the case with interest, only Dominion and Fox are in this case, only their interests matter as to trial or settlement. Any case can be lost. Trials are unpredictable. A case can try well or poorly, and a unanimous jury is unpredictable. Juries can focus on evidence none of the lawyers argue or talk about (says the lawyer who, to his amazement, got seated on a criminal trial jury, an invaluable experience for a trial lawyer of which I took full advantage). And the bigger any verdict Dominion gets, if it gets a verdict, the greater the chances of appeal, with years going by before any final resolution. Which could include winning all the way up until they find the US Supreme Court altering the defamation law that has stood since 1964 for a media outlet or public figure.

    In other words, and to borrow a sports metaphor, while we all watch the at-bat with interest, Dominion hitting a long fly that ultimately gets caught at the warning track, even with a leaping catch that robs them of a homer, is in the end just as unsatisfying to them, and as unproductive, as a strikeout or a dribbler to the mound. Risks abound for everyone in a trial.

    • bmaz says:

      Jeebus, you got to sit on a jury? Of any kind? I would kill for that experience. Never gonna happen unfortunately.

      • Attygmgm says:

        I know, right? Incredible luck.

        I of course had to identify myself as a lawyer in qualifying, so the other jurors insisted I be the foreman, and the trial judge, before whom I had appeared many times, was glad to let me. It enabled me to always speak last in deliberations, the invaluable part.

        The trial concerned four food-and-beverage worker friends out for a late night celebrating one of the four’s birthday, but a fight broke out. One of the pugilists lost an eye, hence the criminal charge (initiated by the ER when he showed up for treatment the next day). As those involved directly were all hammered before the fight, no one’s story made complete sense. The jury deliberated about 10 hours over two days to sort it out, with impressive attention to details discussed and not discussed by counsel. Deliberations took almost as long as the trial. We convicted on a lesser included charge.

        One of the premier experiences of my lawyer life.

        • bmaz says:

          Have told the story here before, but don’t think you were here back then….but I let a then 9th Circuit judge, but former District judge, sit on a criminal jury once. The dipshit prosecutor laughed at me, but we had a good case and got an acquittal. Probably would have been castigated professionally if had screwed that up.

      • Alan Charbonneau says:

        I served on a jury once, a carjacking case. My biggest takeaway was how incompetent the defense attorney was. I could have done a better job. One of the jurors broke up laughing at her closing arguments. The biggest surprise to me is that the attorney was not a public defender. I thought, as did the other jurors, “they paid money for this?”

        The guy was guilty as sin, nobody could’ve gotten an acquittal, but even so, the defense attorney was atrocious.

        • punaise says:

          May have told this story before here. I was about to be empaneled on a jury in a ticky-tacky DUI case: the presumably inebriated (at the time) defendant had backed her car onto the street to park it during a party. Violation of the law? Quite probably, but…

          Over the course of the initial statements by the two sides during jury selection (I’m sure there’s a fancy Latin term for that), and the subsequent voire-dire questions and responses, it became pretty clear that the prosecutor was “losing the room”. After lunch break we were excused; the charges had been dropped.

        • bmaz says:

          Trials are fickle things. Juries even more so. As a commenter earlier, who has dealt with them, said: “You never know what the buggers will do”. And it is so true.

        • P J Evans says:

          I was in jury pools a couple of times in the 70s, in the Bay Area.
          One time the defendant and his lawyer came in, looked at the pool, and the guy decided to change his plea to guilty.
          Another time, everyone was there, ready, except the defense lawyer, who was elsewhere. (Never did get the story on that.) Felt sorry for the court, though.

    • waban1966 says:

      Thanks for the steer to the live tweets, at least a major network’s. Ah, to have those who really know it and have studied it commenting. Alas.

      Question: Wouldn’t the likely change of defamation law, rejecting the actual malice standard, be bad for Fox, here and generally? So no SCOTUS appeal for them? Maybe I have it backwards, not being a First Amendment lawyer.

      Absolutely right about the uncertainties. But I’m still putting a little money on the economic dynamics, outside the pure risk-adjusted trial and appeal outcome, being that the sides will always be too far apart to overlap. Fox’s market cap is $17.6 billion. They can take a big hit and come back from it. Conceding they were wrong could be more devastating (whether or not there is a technical “no admission of liability” clause, the number in a settlement will speak for itself). I’ve certainly seen lawyers and clients who would prefer to blame a bad outcome on “we got a bad judge” than admit that the case was weak.

      • bmaz says:

        Yes, and thanks to Civil as well for linking Stelter’s list. McFarlane is doing the best so far as to coverage. WaPo has Amy Gardner and Jeremy Barr apparently on the job too, but seen less out of them.

      • Attygmgm says:

        Even an appeal outcome is uncertain. Among other things, it could include the legal standard being altered but only prospectively. The “you are right, but you still lose” appeal outcome. I have had it happen.

  31. POTUS31 says:

    Fox, like in most corporate settlements, is probably asking for two things: a reduction in the payout, and no admission of guilt. Those are two very valuable things, and should be inversely proportional even though they often are accepted by a judge to get the argument out of their courtroom. IOW, you get to not admit guilt for double the penalty, or you admit your whole corporation is on the level of supermarket tabloids, and you get a reduced penalty with community service at a trash dump or sewer plant.

    • bmaz says:

      “Often accepted”? How exactly is a judge “not” going to accept a stipulated settlement by the appropriate parties if within the court’s rules?

    • P J Evans says:

      That motion won’t fly. “Those others” aren’t part of the suit. (They’re also much smaller businesses. Fox is the big one.

  32. Stacy (Male!) says:

    Much as it pains me to say so, I am in substantial agreement with bmaz. As John Cahill, the lawyer who gave his name to the killer litigating firm of Cahill, Gordon, once said: “Nobody ever lost a settlement.”

  33. Vinnie Gambone says:

    Huh, so you are against me getting my “puerile amusements” but OK with having the court being thrilled ?

      • Vinnie Gambone says:

        Failed attempt at humor. Sorry. You are getting a hell of a work out Bmaz, but my score card has you way a head. Thanks for dealing with us knuckle heads.

  34. The Old Redneck says:

    Long before Harry Weinstein, Trump, and others were revealed to have used abusive confidential settlements (or NDAs as they’re often called now), I told everyone who would listen that they are toxic. They prevent the public from learning about bad conduct, and more importantly, serial bad conduct. For example, corporations are notorious for using them to prevent information from being shared about hazardous and defective products.
    There are many good reasons to settle a case rather than try it. I could not fault Dominion for settling it if the terms are right. I just hope that in a case of this magnitude, that if it is settled, that the settlement is not confidential. We all pay a price when a gag is put on something with this level of public interest.
    I’m all for reasonable legal limits on confidential settlements. I’m just not sure that I could get anyone, other than maybe Elizabeth Warren, interested in pushing for them.

    • theartistvvv says:

      FWIW, in the civil arena in my state, one never agrees to an NDA unless paid for it, specifically.

      IOW, paid for over and above whatever settlement is made re the issues of the claim.

      I will add that there is a tendency among certain types of defendants and/or carriers to try and sneak them (NDA’s) into releases.

  35. harpie says:

    OPENING ARGUMENTS [THREAD here, he’s in COURT, but no live tweeting allowed]
    12:53 PM · Apr 18, 2023

    Opening arguments for Dominion v. Fox News will *finally* go underway at 1:30 p.m.

    The trial start was delayed from yesterday to today, and judge had to finalize jury selection in the morning. [THREAD]

    Clearly, no settlement has been reached. Lawyers for each side are raring to go.

    Stephen Shackleford, an experienced corporate lawyer who’s repped Dominion for a while, will start.

    Fox has the legendary trial lawyer Dan Webb for their own opening arguments.

    • harpie says:
      2:50 PM · Apr 18, 2023

      Still no explanation for this more than hour-long delay in opening statements at the Fox-Dominion trial. No one seems to have any idea what the reason for pause is.

      3:17 PM We are approaching the two-hour mark of this unexplained delay in court.

      CNN’s @MarshallCohen observed a top Fox lawyer showing a piece of paper to a top Dominion lawyer. A few min later, they both stepped out of the courtroom into a private, secured area for court staff. Moments later, they walked back into court together. Unclear what was discussed.

      3:37 PM Delay has surpassed two hours. Jury hasn’t been seen since break for lunch. Lots of buzz in the courthouse as to reason for this delay. Jury scheduled to end each day at 4.30 so hard to see how opening statements could get underway today with less than hour left.

  36. Bay State Librul says:

    Apologies and accountability are vital to both people and the communities they serve.
    I realize that in this case, there are only two direct parties, but in reality, there are many other voices.
    If the trial goes the full six-week Monty, you betcha there will be a film in the works.
    Let’s call it Eyes on Delaware — in which a leading lawyer for Fox, later in life, realizes that democracy is more important than narrow legal points.
    He understands now, that “when you get near a squid, it squirts ink to distract, as it makes it escape.”
    Maybe, in fact, with his ink-soaked shirt, he wasn’t the smartest person in the room.

  37. Alan Charbonneau says:

    Bmaz is correct in that the case involves two litigants and I am not one of them. Dominion owes me nothing. If they settle, they settle (the trial has already begun, but they could still settle).

    Having said that, I enjoy popcorn. I would love to see testimony by Hannity, Ingraham, Rupert, etc. I’d also like to see more internal emails/texts from Fox talent and management. It’s not just because I like popcorn, but I’m hoping Fox is hurt by the trial. I don’t think their viewers paid much attention to the motion for summary judgement, but some of them may follow the trial and Fox might lose viewers. They are a cancer on the country so I can hope they will.

    I’m aware that the litigation process does not have a public interest, but I can still hope, and I do, that this hurts Fox.

    • bmaz says:

      Which is totally fair, and I join in that, it is just not the duty of the two parties, as so many want to believe.

        • Molly Pitcher says:

          “allows the country to move forward” being the shorthand for get the public to forget the truth as soon as possible since our viewers have the attention span of a gold fish.

        • earlofhuntingdon says:

          How like the narcissistic egos at Fox to confuse settling their own predicament with allowing “the country” to move forward.

        • Mister_Sterling says:

          It absolutely hurts Fox. One corporation I don’t care about cratered the share price of another I don’t care about. And now it’s karma time for Fox. Meanwhile Trump is a week away from a defamation trial that might include his DNA as evidence, and the arrest of Teixeira in Cape Cod is a preview of what’s coming for Trump’s lawyers.

        • bmaz says:

          Um, Dominion was actually a decent company that started out to try to help disabled voters vote, and then make voting easier for others. Why would you not care about that?

  38. c-i-v-i-l says:

    Just announced: Fox News and Dominion Voting Systems have settled out of court. I haven’t seen any info about the terms.

    • JVO says:

      They were actually in court but whatever. I’m more interested in whether there will be a public apology and its details.

      • ernesto1581 says:

        doubtful. fox apology is dishwater.

        we now return you to our regularly-scheduled program.
        (cue sad oboes and lugubrious trombones)

    • PJB2point0 says:

      Fox News’ parent is an SEC reporting company. I wonder if the financial terms of this settlement are material information that must be reported on Form 8-K?

      • bmaz says:

        Oh, it will come out sooner or later. Dominion also has to make financial filings, even if not as public as Fox’s.

        • JVO says:

          Per Dominion CEO, John Polis, FOX admits it lied and harmed Dominion.
          Is $787 million enough to cover their lawyers’ fees? {sarcasm}

        • punaise says:

          That’s quite a hefty sum. I wonder what the conditions are that will ostensibly allow Fox to save face with their viewership.

        • Molly Pitcher says:

          See my comment to harpie above about Fox viewers having the attention span of goldfish.

        • hollywood says:

          Per Fox Corp., “This settlement reflects Fox’s continued commitment to the highest journalistic standards.”

        • Rugger_9 says:

          Getting just under 50 cents on the wish-list dollar seems pretty serious in terms of how far over the barrel Faux News was here. Asking the lawyers: is that about right?

          I doubt there will be any admission of guilt by Faux, however… there are also the bench rulings concerning whether Faux News lied about the election which I suspect might be a key element for Smartmatic’s case.

        • Giorgino says:

          They don’t need to save face. The MAGA folks are smart. They know that two negatives make a positive: Fox lied about the Lie. So, they are good with it! ;)

        • bloopie2 says:

          That’s halfway between $775,000,000 and $800,000,000. A mere $12,500,000 (Twelve Million Five Hundred Thousand Dollars) one way or the other. Pocket change; let’s split the difference and call it a day.

        • timbozone says:

          Horse trading at its finest. The cynic in me imagines the upper limit that Fox’s lawyers were authorized to dole out was 800 mil…

  39. harpie says:
    4:14 PM · Apr 18, 2023 [via Justin Hendrix]

    Statement from Smartmatic lawyer Erik Connolly: “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign. Smartmatic will expose the rest. Smartmatic remains committed to clearing its name, recouping the significant damage done to the company, and holding Fox accountable for undermining democracy.” 2/2

    • timbozone says:

      Easy translation imaginator: “Show us mo’ money!”

      What is Fox’s grand strategy in the face of all these defamation lawsuits that it brought upon itself? Almost certainly Fox’s lawyers had a pre-authorized amount for reaching settlement with Dominion… but how much more money might they be able to play with in the case of Smartmatic et al?

  40. harpie says:

    Media Matters:
    The Dominion saga exposed Fox for the propaganda outlet it’s always been, but accountability cannot end with the settlement The Dominion lawsuit has always posed a much greater threat to Fox’s bottom line than just a settlement Gertz / Dimiero 04/18/23 4:40 PM EDT

    […] The embarrassing saga couldn’t have come at a worse time for Fox, which is currently negotiating or preparing to negotiate with three of its biggest carriers. As Media Matters President Angelo Carusone detailed on Twitter last week, the network hopes to jack up its already overpriced carriage rates in order to offset ad losses and boost profits. […]

  41. earlofhuntingdon says:

    Show of hands: who thinks Fox will change its ways as a result of paying, or having its insurers pay, nearly $800 million for bad conduct? Bueller… Bueller?

        • bmaz says:

          No. But they might pull back from their past practice. Advisory: the Smartmatic case is a lot smaller than the Dominion case, but now has a lot of fuel. It will be interesting to watch. My guess is Fox will settle/eliminate that too.

        • GSSH-FullyReduced says:

          By “puling back from their past practice”, do you mean they’re less likely to do what exactly? Exchange emails and other communications that might be discoverable in another damaging future lawsuit? Or lie less? Or?

        • GSSH-FullyReduced says:

          Sorry, just wanted your thoughts on what FoxN might change after both these civil cases are in their rearview mirror.

    • Drew in Bronx says:

      Fox won’t change its ways. But Rupert was really scared. There was every likelihood that he would be forced to testify at trial and that the whole thing would be a torrent of bad news for him and Fox.

      Fox acknowledged the judge’s ruling in summary judgements that statements they broadcast were false, but managed to keep it low key–no on air apologies, no mea culpas about management knowingly lying. The money number is big and acknowledging the lies is costly, but Murdoch decided it was the least bad way out. They may well double down to get back their losses.

      The thing is, most of their revenue comes from exorbitant cable fees–some of their big contracts are up for renewal this year. One hopes that they will be in a weak place for those negotiations, but it was probably worth $200-300 million more to Rupert to get this out of the way earlier rather than later.

  42. harpie says:

    MediaMatters’ Angelo Carusone:
    4:43 PM

    1/Fox’s statement said they acknowledge “certain” statements they made about Dominion were not accurate. But the court found that not a single thing Fox said about Dominion was accurate.

    Based on this and other things, here’s my warning: Fox is about to burn brighter and hotter

    2/To use a metaphor: Fox didn’t just get away with murder; they basically got a license to kill.

    Unless we cut off their inflated guaranteed revenue from their wildly overpriced cable carriage fees, Fox is gonna use the license.

    3/ Remember: Fox is renewing several cable carriage deals right now. Just to put this into context. The increases … just the increases they are trying to get from cable companies is several times larger than the check they just wrote to Dominion.

    4/ The only way to make sure the keyhole view we just got into the industrial scale deceit of Fox News is to make sure Fox’s enablers act accordingly. That starts with cable providers. [link to NoFoxFee: https[colon]//www[dot]nofoxfee[dot]com/]

    • earlofhuntingdon says:

      Your prediction that Fox is about to double down on its propaganda comes straight from Fox’s description of its work and this settlement: “[T]he settlement reflects its ‘continued commitment to the highest journalistic standards’”.

      To paraphrase Sir Wilfrid Robarts, “My Lord, may I also remind the learned spokesperson for Fox that their employer, by their own admission, has already violated so many oaths that I am surprised the Testament did not LEAP FROM THEIR HANDS!”

    • hollywood says:

      Sounds great, but what if you want to see sports on your screen? Is there a way to keep the sports programming and cut out the news?

      • hipiebullsht says:

        and here we are getting to the real nitty gritty of who is subsidizing fux news on their fascist capitalist liefest.

        • hollywood says:

          Being forced to pay for the “news” to get the sports almost seems like an illegal tie-in.

  43. ernesto1581 says:

    5PM EDT: Reuters says Fox Corp shareholders “…are using provisions of Delaware corporate law to demand internal Fox records to investigate…” whether Fox directorship properly oversaw what was going on the air re: Trump’s claims of election rigging, and whether directors & execs “…were derelict by allowing the network to air the false claims.”
    (sardonic oboes and wry trombones)

    • hippiebullsht says:


      I have a poem I wrote in 2016 while working as an ATT cable guy… yeah I know, no one wants to hear it…so instead I will just share this couplet nugget from the heart of said poem:

      “apex holographic bullshit controls the balls”

      yes, being an ignorant h8ful fascist who demands a steady diet of lies is rocket science, don’t let anyone tell you different.
      (wah wah ring modulated echoplexed trombone drones)

  44. Thebuzzardman says:

    Glad to see the hedge fund won their case against the giant media company. Hopefully this ends all talk about it, since it doesn’t really matter.

    • bmaz says:

      What the hell do you “think” should have happened? Do you think these entities do not exist? Do you think they should not defend themselves? What is your point?

  45. OuthouseCounsel says:

    I am a lawyer but not the right kind. Certainly FOX/Murdoch was able to put an end to Dominion’s pursuit of information relevant to its defamation claim. I would expect any public interest in the actions of Fox/Murdoch related to the Jan6 coup attempt would be pursued in appropriate silence by Special Counsel Smith. Fox/Murdoch bought some resolution with the Dominion settlement, but I expect they are still under an order to preserve records and that the public interest in their information is not diminished at all by this civil settlement.

    • P J Evans says:

      Delaware is still going to look into possible obstruction. The settlement didn’t end that.

  46. klynn says:

    IANAL, while I expected this outcome, is there any evidence released that could be used for legal action due to the lies that caused potentially long term harm to family relationships?

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