Roy Rochlin/Getty Images; Alexi Rosenfeld/Getty Images; Jason Koerner/Getty Images
- Fox is pushing Dominion to settle its $1.6 billion defamation lawsuit, WSJ and Reuters report.
- A judge delayed the trial the night before opening arguments were expected to begin.
- Court filings have already produced embarrassing revelations about Fox hosts, executives, and producers.
Fox is pushing to settle a mammoth defamation lawsuit from Dominion Voting Systems just before it was about to head to trial, according to multiple reports.
On Sunday night, Delaware Superior Court Judge Eric M. Davis, who is presiding over the lawsuit, said in a statement that the trial would begin on Tuesday, instead of Monday morning as scheduled. He didn't explain the reasons for the move.
Fox made a last-minute attempt to settle the case out of court, the Wall Street Journal reported, citing people familiar with the situation. The Journal first reported on the settlement talks. Reuters also reported that Fox sought to settle the case, citing an unnamed source familiar with the matter.
According to the Washington Post, lawyers for both sides are scheduled to meet on Monday to determine if they can broker a last-minute deal.
A spokesperson for Fox Corp., the parent company of Fox News, declined to comment to Insider on the record. A spokesperson for Dominion declined Insider's request for comment.
The twist effectively dampers what has been widely anticipated by First Amendment experts to be a reckoning for the right-wing media outlet in Delaware Superior Court.
Dominion first filed its lawsuit, asking for $1.6 billion in damages, in March 2021. It alleges Fox News and Fox Corp. defamed it when it hosted conspiracy theorist lawyers Rudy Giuliani and Sidney Powell, who spouted falsehoods about the company to millions of viewers in the aftermath of the 2020 election.
Former President Donald Trump, refusing to accept that he lost the presidential election, hired Powell and Giuliani in a failed effort to reverse his loss in the courts.
Powell and Giuliani pushed a false theory that Dominion — in cahoots with the rival election technology company Smartmatic — had convoluted ties to the dead Venezuelan president Hugo Chávez and secretly flipped votes from Trump to now-President Joe Biden. Dominion alleges that Fox hosts Jeanine Pirro, Maria Bartiromo, and Lou Dobbs either endorsed those claims or didn't sufficiently push back against them when they hosted Powell and Giuliani on their shows.
Fox has argued that it was simply reporting on newsworthy claims made by the sitting president. And though defamation lawsuits are difficult to win in the US because of the country's strong free speech protections, First Amendment experts largely agree that Dominion has enough evidence to win the case. The election technology company would have to prove Fox News acted with "actual malice" — a legal standard meaning that the media outlet knew it was lying or recklessly disregarded the truth.
Victories for plaintiffs in defamation lawsuits are often overturned upon appeal, according to Frederick Schauer, a professor at the University of Virginia and an expert on defamation law. While juries often sympathize with plaintiffs, appellate courts tend to reverse their decisions by applying the "actual malice" standard, he said. Fox and Dominion had both appeared prepared to bring their legal battle to appeals courts. Fox had referenced the possibility in SEC filings, and both sides of the case brought on experienced appellate lawyers to their teams. Fox Corp.'s top lawyer, Viet Dinh, said he believed Fox had good odds of winning their case in front of the Supreme Court, according to the New York Times.
The case has already been damaging to Fox
In the months ahead of the trial, both Dominion and Fox submitted motions for summary judgment — essentially trying to convince Davis that their respective cases were so strong that he could decide them himself instead of sending them to a jury.
Dominion's filings included numerous deposition excerpts, texts, and emails from hosts, executives, and producers that proved highly embarrassing for Fox.
Host Tucker Carlson texted about how "passionately" he hated Trump and fretted about how the then-president could "destroy" Fox News. In a group chat, Carlson and fellow hosts Sean Hannity and Laura Ingraham all said Powell's claims about vote-flipping were ridiculous.
At the same time, Fox News hosts were slow to accept Biden's victory in the 2020 election. Carlson said in a text message that Fox News's decision desk was "destroying our credibility" when it correctly called Arizona for Biden. He and Hannity sought to persuade Fox News CEO Suzanne Scott to get a reporter fired for fact-checking Trump.
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In his own messages and depositions, Fox Corp. Chair Rupert Murdoch appeared to worry about going too far in Trump's direction — but he also wanted to make sure his followers wouldn't change the channel.
"He had a very large following, and they were probably mostly viewers of Fox, so it would have been stupid," Murdoch said of Trump.
Fox News also appeared to be driven to push election falsehoods because of the rise of Newsmax, Dominion's filings suggested. The further-right media outlet had more explicitly embraced Trump's election falsehoods in the wake of his loss to Biden, leading to a boost in ratings.
Davis issued his summary judgment decision in late March, mostly in Dominion's favor.
"The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true," he wrote, with his own capitalization.
All Dominion had to persuade a jury of, he ruled, were three things: That Fox News acted with "actual malice"; whether Fox Corp. was also liable; and how much the damages ought to be.
Roy Rochlin/Getty Images
The weeks leading up to the trial's scheduled start date have been peppered with twists.
Abby Grossberg, a former producer for Bartiromo and Carlson, filed two lawsuits against Fox News. One of those lawsuits, also filed in Delaware, alleges the company's lawyers coached her into giving false answers for her deposition for Dominion's case. She said in court filings that Fox News's producers should be seen as "activists, not journalists."
In the week before the trial, Davis admonished Fox's lawyers after discovering Fox News had withheld documentation indicating Murdoch held a corporate role at Fox News, not just at the parent company, Fox Corp. — an issue that has significant ramifications for whether Fox Corp. could be held liable in the case. He also admonished Fox's lawyers for appearing to withhold a recording — produced by Grossberg — of Giuliani appearing to tell Bartiromo that some of his claims about Dominion were unproven. Fox has said it has complied with all of its discovery obligations and that Grossberg's lawsuits are without merit.
Ahead of the expected trial, Fox argued in court filings that Dominion is worth closer to $100 million — far below the $1.6 billion in damages the election technology company claimed. Murdoch also has a track record of settling lawsuits against his companies. A Washington Post analysis found his companies paid out nearly $750 million in settlement funds over the past 13 years, which include settlements over numerous sexual harassment claims against Fox News.
A potentially greater risk to Fox is the lawsuit from Smartmatic that's working its way through New York state court. Smartmatic asked for $2.7 billion in damages and also has Giuliani as a defendant. Smartmatic's lawsuit against Powell is progressing through a court in Washington, DC, for jurisdictional reasons.
Dominion also has pending defamation lawsuits against Newsmax and another right-wing media outlet, One America News, both of which face existential risk after being dropped by DirecTV. Along with Smartmatic, it has a smattering of lawsuits against other conspiracy theorists, including MyPillow CEO Mike Lindell, pending as well.
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