3 Final Thoughts On Dominion V. Fox

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(Photo by Kevin Hagen/Getty Images)

Fox settled with Dominion, and everyone immediately asked whether the settlement involved Fox apologizing for its conduct. The pundits did their thing.  But here’s the truth.

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In the typical lawsuit, the defendant (who’s paying money) asks that the amount of the settlement be kept confidential because the defendant thinks it would be hurt by revealing the amount that it was paying. (The payment could be interpreted to be an admission of liability, even though the settlement agreement says otherwise. A large payment could encourage additional lawsuits of the same type in the future. And so on.)

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In the typical lawsuit, the plaintiff doesn’t care very much about whether the amount of the payment is confidential. It would be nice, of course, to be able to say that BigCo had paid you several hundred thousand dollars because it had discriminated against you (or whatever), but the value of the settlement payment far exceeds the value of bragging about the settlement, so the plaintiff agrees to confidentiality.

What happened in Dominion against Fox? Fox agreed to pay a phenomenal amount of money to Dominion and, in the negotiations, almost certainly insisted that the amount of the settlement be kept confidential. (This is just a guess on my part, but I’d bet the mortgage on it.) Dominion said, probably early on in negotiations, that confidentiality was non-negotiable; the amount of the settlement had to be made public.

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You want an apology? Fox gave 787.5 million of ’em.

But an express apology — like Fox saying, “Fox apologizes to Dominion for having broadcast false statements about Dominion’s role in the 2020 election”?  Or, better yet, Fox admitting on the air that Fox had knowingly lied? You didn’t see that. Instead, you got a mealy-mouthed concession that Fox “acknowledge[s] the Court’s rulings finding certain claims about Dominion to be false.” That ain’t an apology; that’s lawyers crafting a statement that Dominion can insist is an apology and that Fox can insist is nothing of the sort.

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Here’s my second thought: Pundits are saying that Fox is still facing a “bigger” lawsuit against it. Dominion claimed only $1.6 billion in damages, but the pending Smartmatic lawsuit seeks $2.7 billion. Ergo: The Smartmatic case is bigger than the Dominion one.

This is silly. The amount that a plaintiff claims in the complaint is pure fiction.  Some junior lawyer says, “How much should we demand in the complaint? A billion? A couple billion? A gazillion?” The senior lawyer says, “A gazillion sounds about right.” And a gazillion it is.

But, at trial, where you need actual proof, it turns out that the gazillion is actually a buck fifty.

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The difference between the Dominion “$1.6 billion” lawsuit and the Smartmatic “$2.7 billion” lawsuit has nothing to do with the difference between the purely fictitious $1.6 billion and $2.7 billion. The difference is instead the amount of damages that the respective plaintiffs can prove at trial. I don’t know the actual damage number that Dominion was planning to present at trial, nor do I know what damages Smartmatic’s experts are calculating. But the damage numbers are based on the companies’ respective profits lost as a result of the defamation, or the companies’ lost enterprise value as a result of the defamation, or some such thing. It has absolutely nothing to do with the amounts demanded in the two complaints, and intelligent commentators should stop insisting that it does.

Lastly: Did Tucker Carlson and Sean Hannity learn their lesson from the Dominion lawsuit? It depends what lesson you have in mind. I’d bet Carlson and Hannity did learn a lesson, but it has nothing to do with making false statements on the air. The lesson, instead, is of course this: “Don’t write stupid emails!” It’s the emails that would have proved that the pundits knew the statements they were broadcasting were false, and that’s what created liability.

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Here’s how it works at every company with operations in the United States: The law department gives programs about “intelligent business communications,” advising employees to keep emails (and text messages, and so on) short, factual, and true. No jokes; no opinions; just the facts. (That really means, “No stupid emails!” But smart companies don’t put that advice explicitly in writing. The advice would later look bad to juries.)

Corporate employees hear the advice, ignore it, and continue writing stupid emails.

In some small percentage of cases, there’s later litigation. An employee’s emails are disclosed. The employee can’t believe this: “You mean we actually have to turn over to the other side the stupid things that I wrote?!” The employee is tortured for hours at deposition about his or her stupid emails. The employee is aghast: “How could I have been such a fool to write stupid emails?”

For about two weeks after the deposition, the employee remembers this lesson, and the employee does not write stupid emails. And then, the human mind being what it is, the memory of the deposition fades, and the employee starts writing stupid emails again.

What did Carlson and Hannity learn from their experience in the Dominion case? Don’t write stupid emails! (Carlson and Hannity may be reminded of that lesson when they’re deposed again in the Smartmatic case.) For two weeks or a month after the last of those depositions, the boys won’t write stupid emails. But, a couple of weeks later, human nature being what it is, Carlson and Hannity will start writing stupid emails again.

Which is good news for later plaintiffs in defamation lawsuits against Fox.

And bad news for Fox.

But did Carlson and Hannity learn not to broadcast lies?

Not if that’s the way you attract a television audience.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

Topics

Biglaw, Courts, Dominion v. Fox, Fox News, In-House Counsel, Mark Herrmann