The April Trial Of Dominion v. Fox

Everyone (except Fox News) is talking about the recent summary judgment papers filed in Dominion Voting Systems' defamation case against Fox News. Fox News isn't saying a word.

Although MSNBC expresses shock -- shock! -- that Fox isn't talking, that's really no surprise: Anyone with half a brain doesn't talk about pending litigation. The hole is deep; anything more that Fox says will only make it deeper. Every lawyer -- including the good ones that Fox has retained to defend the case -- is certainly telling Fox to remain silent, and Fox is heeding that advice.

All of the pundits are also repeatedly describing the Dominion lawsuit as a "1.6 billion dollar" case, because Dominion's prayer for relief in the complaint seeks $1.6 billion. Describing the case as one for "1.6 billion dollars" is, of course, idiocy. Plaintiffs can claim any number at all in their complaint; the demand is pure fiction. Plaintiffs can request "an amount in excess of the jurisdictional minimum of the court," which is enough to establish jurisdiction without getting everyone all excited. Or plaintiffs can demand a million bucks, or a billion, or a trillion, or a quadrillion, or whatever comes next.

Dominion was clever to ask for a billion six; the number is huge, but small enough to sound as though it's within the realm of reason, so the number gets repeated by the pundits. If Dominion had asked for a quintillion bucks (see? I really did know what came next), everyone would know the demand was fiction, and no one would repeat it. If Dominion had asked for a buck fifty, the demand would have been too low; it wouldn't have been worth talking about. A billion six was a good choice.

But the billion six is the product of some lawyer's imagination. If the case goes to trial, I'm confident that the amount of damages that Dominion suffered will be hotly contested, and I suspect that neither side will have evidence that precisely a billion six is the right number.

The pundits also assume the case will actually go to trial in April, as scheduled. Maybe, maybe not. I've seen enough trials get postponed -- because judges or lawyers or witnesses become unavailable -- to know that trial dates are not set in stone.

There are, of course, reasons beyond scheduling to wonder whether the case will go to trial.

Naturally, Fox will try to settle this case. It seems as though Fox has not yet made any settlement offers, but that will change. After the summary judgment motions are decided, and as trial approaches, both sides' knees will weaken, and settlement talks will begin.

Dominion, of course, would love to try the case: Look at the reputational damage Dominion could inflict on Fox! Look at the potential damage award! Look at the vindication! Look at the glory!

But then Fox will offer $200 million, or $300 million, or $400 million, and Dominion will start thinking, "Gee, $400 million is a lot of money. And we could lose at trial. Even if we win, the jury could decide that our actual damages were less than $400 million. And this case is pretty damned expensive to try. Maybe we should take $400 million."

We'll see how settlement talks progress.

On the other hand, Fox will also be sorely tempted to settle. I'm confident that Fox knows that it is facing big exposure at trial.

But Fox is facing other risks, too. Fox faces reputational risk: A trial will drag its name through the mud -- day by day, for weeks on end -- as each news cycle covers what prominent witnesses say at trial. And that's just the witnesses' testimony; I'm not yet thinking about the reputational damage inflicted by an adverse verdict.

Moreover, think about those witnesses who will be testifying. There will be widespread coverage on the days when Rupert Murdoch or Paul Ryan (a Fox director) testify. But how about the days when Sean Hannity and Tucker Carlson and Laura Ingraham are on the stand? This trial will put O.J.'s trial to shame! This will be the trial of the century, until some case against Trump begins.

Think how Hannity and the others feel about being forced to testify at trial. Do they really want to spend hours (or days) being cross-examined on the witness stand by hostile lawyers? If those on-air personalities have clout with the muckety-mucks at Fox (and they do), the personalities will be begging Fox to settle at any price, to avoid the distraction, stress, and indignity of testifying. We'll see how the muckety-mucks react to that.

Lastly, however the defamation case against Fox plays out, the trial will disclose yet more incriminating evidence against the company. Some of that additional evidence is likely to be terribly damaging. For example, the board of directors of Fox owed its shareholders (a majority of whom are not named Murdoch) duties of care and loyalty. Murdoch has already testified that he could have stopped the network from broadcasting defamatory information about the 2020 election result, but he did not. Arguably, that's a breach of the duty of care: If Murdoch knew that the network was broadcasting inaccurate defamatory information, and Murdoch had the ability to stop it, why didn't he? If the trial causes Murdoch (or Ryan, or others) to speak more broadly about that subject, Fox could be paving the way for a shareholder derivative suit that could make Dominion's demand for a billion six look like a walk in the park.

Maybe this case will go to trial in April.

But don't hold your breath.

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 inhouse@abovethelaw.com.