• by Karlene Lukovitz  @KLmarketdaily, April 18, 2023

In an abrupt end to the most-watched media lawsuit in years, Fox Corp and Fox News have agreed to pay Dominion Voting Systems $787.5 million to settle Dominion’s defamation action for Fox News’s repeated airing of false claims about Dominion that there was voter fraud in the 2020 election. 

The damages appear to be the largest publicly known defamation settlement in U.S. history involving a media company. 

However, the settlement does not require Fox News to admit on air that it lied about Dominion, or publicly apologize.

Just before 4 p.m. on Tuesday, Judge Eric Davis announced in a Delaware Superior courthouse that “the parties have resolved their case.” 

“Fox has admitted to telling lies about Dominion that caused enormous damage to my company, our employees, and the customers that we serve,” Dominion CEO John Poulos said. While “nothing can ever make up for that,” the case’s outcome has demonstrated that there are consequences for “spreading lies,” he said. 

Dominion lawyer Justin Nelson said that the case, and the amount of the monetary damages, represent “vindication and accountability” for Dominion and democracy. But he also warned that “misinformation will not go away; it may only get worse,” adding that “all of us must remain ever-vigilant” and find common ground in truth. 

In an interview on MSNBC, Dominion lawyer Stephen Shackleford said that in addition to “accountability and justice” for Dominion, the case succeeded in exposing the hypocrisy of Fox executives and hosts, by revealing their behind-the-scenes communications acknowledging the falsity of the voter fraud claims being aired on Fox News -- claims that Dominion argued were made to placate Fox viewers furious at the network for having been the first to call Joe Biden as the winner in Arizona.

“We exposed the reality at Fox in a way that it has never been exposed before,” Shackleford said. 

While unprecedented among media cases -- and a big hit even for Fox, which saw net profit of $1.2 billion last year -- the monetary damages in no way threaten Fox Corp’s financial viability. Like all large media companies, Fox has libel insurance. And as media analysts have pointed out, with more than $4 billion in cash on its balance sheet as of year-end 2022, Fox could likely have paid the full $1.6 billion initially sought by Dominion without even having to sell any assets.

The parties did not publicly disclose the terms of the settlement beyond the monetary damages. 

However, a Dominion representative told CNN that the settlement does not require that Fox News acknowledge on air that it told lies about Dominion Voting Systems. 

Indeed, Fox’s official statement following the announcement not only sidestepped any direct admission of wrongdoing; it attempted to spin the settlement as a validation of its practices.  

“We are pleased to have reached a settlement of our dispute with Dominion Voting Systems,” Fox Media said. “We acknowledge the Court’s rulings finding certain claims about Dominion to be false. This settlement reflects Fox’s continued commitment to the highest journalistic standards. We are hopeful that our decision to resolve this dispute with Dominion amicably, instead of the acrimony of a divisive trial, allows the country to move forward from these issues.” 

The monetary damages, while far short of the original $1.6 billion asked for, are about 20 times the $38.3 million that private equity firm Staples Street Capital paid to acquire a 76% stake in Dominion in 2018.

The settlement also spares Dominion the long, costly, series of appeals that would certainly have been filed by Fox if Fox had been found guilty by a jury of actual malice -- that is, having aired the lies about Dominion knowingly or with reckless disregard for the truth. 

Fox, for its part, is spared the specter of its top executives, including Fox Corp Chairman Rupert Murdoch –- as well as Tucker Carlson and other of its top stars -- being questioned on the stand about the stark contrast between their private messages and the falsehoods being broadcast on Fox News.

During months of developments in the lawsuit, many media lawyers said that Dominion had put together the strongest defamation suit they had ever seen, and might succeed in winning despite the extraordinarily high bar that proving actual malice represents.   

But after a series of stunning legal rulings against Fox by Judge Davis, including one precluding Fox from claiming protection based on newsworthiness, some observers speculated that the jury selection process might have been the factor that pushed Fox to finally agree to terms acceptable to Dominion. 

“Your presence here… was extremely important,” Judge Davis told jury members as he dismissed them from duty. "And without you, the parties would not have been able to resolve their situation.”

Bloomberg, citing sources familiar with the matter, reported that the emergence of secret recordings by former Fox News producer Amy Grossberg, who is suing the company for discrimination, were a key factor in moving the settlement forward, although Fox said this is "totally false." Those recordings include off-the-air discussions between hosts and guests, including one in which Maria Bartiromo asks Donald Trump lawyer Rudy Giuliani about the veracity of a rumor that then House Speaker Nancy Pelosi had a financial stake in Dominion. “I read that, but I can’t prove that,” Giuliani responded. 

Some experts declared the costly and very public settlement a victory for democracy and sound journalism, despite Fox’s apparently having avoided having to admit its falsehoods on air as part of the deal. 

But others were less than convinced that the consequences will cause any fundamental change in the behavior that did much to mislead  millions of Americans to believe there was voter fraud in the election. 

“The stain this leaves on Fox can’t be wiped out with money,” stated Angelo Carusone, president of media watchdog Media Matters. “The network has been completely exposed as a partisan propaganda outlet that is willing to do anything for profit and power. Fox News lied about the 2020 election; they all knew it was a lie, right up to the Murdochs themselves. What the Dominion trial offered was a keyhole view into the day-to-day industrial-scale deceit that takes place at Fox. It helped illustrate why the company is such a uniquely destructive force. Ultimately, though, the only way to hold Fox accountable is for the cable companies that force every cable customer to subsidize Fox by grossly overpaying for it, even if they never watch it, not to give in to Fox's bullying tactics.” 

In an MSNBC interview, Carusone also predicted that Fox News will work harder than ever to stress themes that stir up its core audience to try to distract from and put behind it the lawsuit's revelations about Fox's broadcasting misinformation. 

Tucker Carlson -- who acknowledged in one internal email revealed in the Dominion case that he actually hates Trump “passionately," and called Trump “a demonic force, a destroyer" who was a "disaster" as president and whose behavior after the election was "disgusting" -- last week aired an interview with Trump on Fox in which he described Trump as "moderate, sensible and wise," even as Trump rambled about "nuclear warming" and lavishly praised North Korean dictator Kim Jong-Un.

Fox also faces a $2.7 billion defamation lawsuit by another voting technology company, Smartmatic, as well as the discrimination lawsuit by Grossberg, who was to be a witness for Dominion. 

After yesterday's settlement, Smartmatic lawyer J. Erik Connolly issued this statement: “Dominion’s litigation exposed some of the misconduct and damage caused by Fox’s disinformation campaign. Smartmatic will expose the rest.” 

Dominion, for its part, still has six pending defamation suits, including ones against right-wing networks Newsmax and OAN (each for at least $1.6 billion in damages), Trump lawyers Giuliani and Sidney Powell, and Trump acolyte/pillow purveyor Mike Lindell. They have all denied wrongdoing. 

Dominion lawyers confirmed that Dominion would quickly "move onto the next” lawsuit. 

Meanwhile, Newsmax put out a statement saying that it “believes that the facts at issue in Dominion’s case against it are materially different from those that may have driven Fox to settle, and no conclusion about Newsmax should be drawn from that settlement. Newsmax stands by its coverage and analysis of the 2020 election and will continue to vigorously defend against the claim.”