Last minute brinkmanship and overseas assist end Fox case

Apr 19, 2023, 4:45 PM

FILE - This artist sketch depicts Dominion Voting Systems attorney Justin Nelson, standing left, an...

FILE - This artist sketch depicts Dominion Voting Systems attorney Justin Nelson, standing left, and Fox News attorney Daniel Webb, standing at right, speaking to Judge Eric Davis before finishing jury selection in Delaware Superior Court Tuesday, April 18, 2023, in Wilmington, Del. (Elizabeth Williams via AP, File)
Credit: ASSOCIATED PRESS

(Elizabeth Williams via AP, File)

NEW YORK (AP) — Before pulling back from the brink of a trial, Fox News and Dominion Voting systems faced a stern deadline — not from an impatient judge or jury, but from a man on a Danube River cruise with his wife half a world away.

A mediator hired late Sunday pushed the two sides toward a $787 million settlement that brought a stunning end to the most-watched media libel case in decades, one that sought to put a price on lies told about the 2020 presidential election on conservative America’s most popular news outlet.

“It’s a deadline that I always impose because I know that once a jury is empaneled and opening statements are made, then one or other of the parties will dig into their positions,” Jerry Roscoe, of the Washington-based JAMS mediation service, said Wednesday. “It makes negotiations much more difficult.”

As the haggling went on, over the phone and in back rooms of a Delaware courthouse, lawyers, journalists and spectators waited as a scheduled 1:30 p.m. start of the trial came and went Tuesday.

Finally, two minutes before 4 p.m., Superior Court Judge Eric Davis emerged with an almost matter-of-fact announcement, given the stakes.

“The parties have resolved their case,” he said.

It was a settlement months in the making, since the Colorado-based voting technology firm was baselessly accused of rigging its voting machines against former President Donald Trump in 2020.

In the two months prior to the scheduled start of the trial, a they feared angering Trump fans in the audience with the truth.

Davis had ordered the two sides to try to mediate their differences last December, but it was a non-starter for Dominion. The company didn’t want the case to end without all of the evidence it had gathered made public. That happened through February and March, with document dumps that essentially outlined the case Dominion would have presented at trial.

“That was something we had committed to from the beginning,” Dominion CEO John Poulos said Wednesday on ABC’s “Good Morning America.” “We had complete support with our partners, and it’s something that we owed to our customers.”

Fox had argued that it was airing newsworthy allegations made by Trump aides, and that Dominion’s case was an attack on press freedom.

Libel is tough to prove — a jury must find journalists knowingly published false information or with a “reckless disregard” for the truth. Yet Fox’s path to victory narrowed, both through the evidence presented and rulings by Davis, who said that the allegations against Dominion were unquestionably false, and that newsworthiness was no defense against defamation.

Attorneys for both sides, Justin Nelson for Dominion and Dan Webb for Fox, quietly began to seek a deal before trial. With the two sides far apart, they reached out to mediator Roscoe, then cruising between Budapest and Bucharest with his wife. He agreed to take the case on, using much of Monday to read through the evidence.

“My job is to create options and to give them choices,” Roscoe said.

He spoke on the phone constantly from the boat, mostly with lawyers other than Nelson and Webb Tuesday, as they were preparing for opening statements, and principals like Poulos, ensconced in a conference room at the courthouse.

Davis gave the two sides Monday off to talk. On Tuesday morning, a jury was selected that included five Black men, four white women, two Black women and one white man. It was a majority Black jury deciding the financial fate of a network whose audience is 94% white and 1% Black, according to the Nielsen company.

Jury selection can be a key moment in pushing two sides toward a last-minute settlement, said Lee Levine, a veteran First Amendment attorney.

There’s a strong possibility that “Fox had decided to wait and see what kind of jury it drew and to see if they had a couple of people on the jury they had good feelings about being holdouts,” Levine said.

Fox privately resisted the idea that jury selection was key to a deal, saying instead that there were complicated negotiations that had to play out.

Meanwhile, after a lunch break, people returned to a courtroom cluttered with boxes filled with evidence. Webb spoke on a cellphone and approached Nelson to quietly talk more than once. At one point, Webb was seen walking out of the courtroom with a wide smile on his face.

Levine was walking on a beach in North Carolina with his wife, wearing ear buds to catch the audio feed of opening statements. When court hadn’t resumed by 2:30 p.m., his instincts told him that a settlement was near.

When did Roscoe have that feeling?

“When it came together and not a moment before,” the mediator said. “The parties had different analyses of the law and the facts and were vigorous advocates for their positions all along the negotiations.”

The agreement was reached before 3 p.m. in Delaware, or 10 p.m. on Roscoe’s boat.

The negotiations were primarily financial. Fox had issued a public statement Monday saying that Dominion had reduced its estimate of damages by $600 million. Dominion disputed that, but the eventual deal was closer to what Fox said was the adjusted figure.

Some Fox critics were angry about the deal, wanting instead to see a trial with Fox figures forced to testify in public, or at least Fox personalities compelled to apologize to Dominion on the air.

Instead, Fox issued a statement that said it acknowledged Davis’ findings that “certain claims about Dominion” were false. “This settlement reflects Fox’s continued commitment to the highest journalistic standards,” Fox said.

Levine sees it this way: “At the end of the day I think a reasonable reading of what happened was there was a line that Fox wouldn’t cross or couldn’t cross because of their business model.”

“They couldn’t have their anchors go on the air and tell (viewers) they lied to them,” he said.

“I don’t think a forced apology is worth a nickel,” said Stephen Shackelford, Dominion’s co-lead counsel. He said that following a legal threat in December 2020 by another technology firm, Smartmatic, Fox aired an interview with an election expert debunking fraud claims, and it had little effect on Fox’s audience or how Fox operated.

Smartmatic has a pending lawsuit against Fox that is similar to Dominion’s.

“You can’t change their culture and approach from the outside,” Shackelford said. “They have to do it themselves.”

Fox had no immediate comment on Wednesday besides the statement issued with the settlement.

In making the deal, Poulos said he had to take into account employees and customers who had suffered from harassment following the false claims. He noted that Fox had acknowledged the court’s rulings that the allegations were false.

Given the challenges he faced trying to bring Fox and Dominion together with their disputes over the facts and legal theory, Roscoe said it’s one of the most meaningful cases he’s worked on in his career. His wife may insist upon another vacation, though.

“She was probably on the Internet looking for another husband,” he joked.

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Last minute brinkmanship and overseas assist end Fox case