IE 11 is not supported. For an optimal experience visit our site on another browser.

Why Dominion’s settlement with Fox News isn’t a total miss

All is not lost: Pretrial proceedings successfully exposed Fox News' hypocrisy, recklessness and prioritization of profits over truth.

By

The Dominion Voting Systems v. Fox News settlement was a smart move … for Dominion. 

By any standard, $787.5 million is a lot of money. It is the largest publicly known defamation settlement involving a media company in the United States. Fox News has never come close to paying that amount before in any kind of litigation. 

One cannot fault Dominion for ultimately making what was a business decision to achieve finality in this high-stakes litigation.

Dominion said it had suffered greatly as a result of Fox broadcasting false claims that the voting technology company tried to rig the 2020 election against Donald Trump. The settlement may not have been for $1.6 billion, as Dominion initially sought, but it was Dominion’s decision, as a business, to settle for “just” $787.5 million. And no one should make short shrift of this outcome just because so many Americans wanted to see this trial go all the way to a jury verdict — to see Fox suffer more accountability for its damaging conduct.

But the lawsuit wasn’t brought by all Americans harmed by Fox News’ lies and deceit. It was brought by Dominion in an attempt to right the wrongs that were specific to Dominion. In a David vs. Goliath move, Dominion sued a media titan and, in part through exceptional lawyering, successfully exposed Fox News' hypocrisy, recklessness and prioritization of profits over truth.

As a part of the settlement, Fox issued a statement specifically stating: “We acknowledge the Court’s rulings finding certain claims about Dominion to be false.” Many are disappointed that the settlement terms apparently didn't require Fox to admit full liability or issue an on-air correction. After all, Dominion's legal team declared Tuesday that “truth matters” and called the settlement a “ringing endorsement for truth and for democracy.”

Keep in mind the bigger picture of what Dominion was able to accomplish for America as it pursued its case.

But, one cannot fault Dominion for ultimately making what was a business decision to achieve finality in this high-stakes litigation. These kinds of cases are complex and costly, and can potentially take years to conclude. Assuming Dominion had convinced the jury of 12 to return a unanimous verdict in its favor, Fox would have appealed that verdict of liability and the presumptively massive award of damages, thereby setting the table for years of protracted litigation between the parties as the case wound its way first through the appellate court system and then ultimately perhaps to the Supreme Court, as Fox had promised to do. That kind of litigation can be financially unsustainable for some parties. And most cannot afford to litigate on principle.

It wasn’t a cost-benefit analysis for just Dominion; Fox also had to undergo a gut check about what was at stake if it didn’t settle. Consider the following: Fox was able to avoid putting on the witness stand its own Logan Roy — 92-year-old Rupert Murdoch, Fox Corp.'s chairman — as well as avoiding seeing marquee-name network hosts like Tucker Carlson, Sean Hannity and Maria Bartiromo crucified on cross-examination.

There were also all of those highly redacted documents that were at risk of no longer retaining their redacted status once they were introduced into evidence during the course of the trial. The ultimate cost-benefit analysis for Fox in settling was the ability to control the price tag of buying peace. It cost them $787.5 million versus $1.6 billion plus the possibility of punitive damages.

But did Fox truly “get off cheap," as some have argued? Keep in mind the bigger picture of what Dominion was able to accomplish for America as it pursued its case: (1) the overwhelming amount of damning evidence in the form of texts, internal chats, emails and other communications by and between Fox bigwigs that were produced in discovery providing “crystal clear” — in the words of the judge — proof of the lies disseminated by Fox; (2) compelling and incredible sworn deposition testimony from Fox executives like Murdoch and Fox News CEO Suzanne Scott showing how the company’s bottom line was more important than the truth; (3) the provision of a roadmap for other major cases, like the one being brought by Smartmatic, another voting technology company, as well as former Fox News producer Abby Grossberg and at least one Fox shareholder.

After the settlement between Dominion and Fox was announced, an attorney representing Smartmatic said in a statement: “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.”

It is entirely possible Dominion walked so others could run.