One of the big stories this week/month was the settlement on the eve of trial of the defamation case between Dominion Voting Systems and Fox News.  The case settled during the first day of trial and at or near the conclusion of jury selection, for nearly $800,000,000.

A quick recap: following the 2020 Presidential election multiple theories were floated relating to the validity of the election.  Many of these were broadcast on Fox News, among those theories relating to the validity of Dominion’s voting machines and software.

Dominion sued Fox for defamation, alleging that the company (through its executives, anchors, etc.) knowingly made false statements about its products and as a result caused substantial damages.  The company sought some $1.6 billion in damages.  Fox denied these allegations, asserting that the information it broadcast was relevant to the public interest, and was likewise protected by the First Amendment.  The judge in the case issued a series of pre-trial rulings, among those that the statements were, in fact, false, and the case was scheduled to begin a jury trial on Monday, April 17.

Monday came and went with an announcement that the trial had been adjourned for one day to allow the parties to explore a possible settlement.  When the parties could not reach one, jury selection began.  During what became a three-hour lunch break, Fox and Dominion finally reached a settlement, and the case was over.

Today we’re going to talk about why cases settle, and why they settle when they do.

The average person might look at the Fox-Dominion case and ask why it got this far if it was just going to settle.  That would be a fair question.  The practical answer would be that the parties needed to engage in pre-trial discovery (the process by which parties to lawsuits ask for and exchange information), which is true.  Dominion did not have access to the many emails and text messages between Fox Anchors and executives (some of which were very harmful) and it’s likely that Fox did not have early access to any information which supported Dominion’s claim of damages.  So, it’s not entirely surprising that discovery was necessary.

Okay, but why then didn’t the case settle after discovery, but well before the parties prepared for trial?

Legal disputes settle at many different points.  Sometimes they settle before papers are even filed, where each side has determined that an early resolution is in their own best interest and these interests align.  Sometimes they settle after discovery, when the parties each have a complete picture of the case and are able to agree (without actually agreeing) as to what an appropriate outcome should be. 

Other times, however, cases simply cannot be settled until there is a real, in-your-face threat of a trial and (in this case) by extension a jury verdict.  It may be that one side is being unreasonable with its demands or offers, or the other failing to recognize its own strengths/weaknesses.  What often happens, however, is that when the Court presses “Go” and a prospective jury is brought into the Courtroom, things get real very quickly.  All of a sudden parties really start to think about what testimony might actually come in, and (particularly in high profile cases) how it will be perceived.  They start to really consider the uncertainty of the whole thing; or how their fate is now in the hands of these 12 (or in New York, 6) jurors whom they’ve never met.

And that’s why it was not at all surprising to see the settlement come when it did.  What took so long?  Likely a combination of the factors above: Dominion appeared to be dug in on its demands, including a public acknowledgement by Fox that it knew the statements were false (or, ultimately, a public acknowledgment of the Judge’s ruling that the statements were false); Fox was likely dug in on some technical legal issues on which it thought it could win (whether at trial or on appeal).  But ultimately, when the rubber hit the road, and when they were each facing a jury of “peers”, everyone recognized what was at stake.  Fox in particular, being a large publicly traded company, had more absolute risk and therefore more incentive in the end to settle, particularly given the damaging written communications and the prospect of its most famous anchors and CEO testifying in open court.  

There’s a saying mediators often use that a successful mediation is one where both sides walk away mutually unhappy with the resolution.  In this case I’m not sure that Dominion walked away unhappy, and to that degree it seems like a win.  Fox certainly took a hit to its reputation and its wallet; however, by settling the case the company was able to contain the fallout, at least for now.

ABOUT THE AUTHOR

Scott M. Peterson is the founding partner of D’Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on exclusively representing individuals in a small number of employment and serious injury/medical malpractice matters.

According to Wellspring, the domestic violence and sexual assault services resource for Saratoga County, 81% of women will be sexually harassed or assaulted in their lifetime.  That is a sobering statistic.  And it’s not just women – the same nationwide survey found that 43% of men have also experienced some form of sexual harassment or assault in their lives. 

In addition to emotional and physical trauma, surviving a sexual assault can bring with it a host of legal issues.This article will focus on employment and personal injury law, but readers should know that organizations like Wellspring can assist in obtaining orders of protection, accompanying individuals to the hospital or the police station, and generally help to navigate a very difficult time. 

When sexual assault or harassment happens in the workplace, not only is someone’s well-being at risk, but their livelihood as well.  Assault and harassment are protected forms of sex discrimination and hostile work environment under both federal and state law.  The law also protects employees from coercive sexual relationships, what we call “quid pro quo” sexual harassment.  This is when a boss or individual with power over your employment requests sexual favors in return for continued employment or advancement. 

What if an assault happens at work?  Contacting law enforcement is of course always an option, and your employer should not discourage you from doing so.  If the perpetrator is a coworker, you can also report the assault or harassment to your boss and Human Resources.  New York law requires employers to maintain a sexual harassment policy that will lay out a complaint procedure.  If the perpetrator is your boss, and your employer is large enough to have a Human Resources department or another designated individual to complain to, you can do that.  If there is no one to complain to because you work at a small company, you can consider making a complaint to the EEOC or the NYS Division of Human Rights. 

With respect to your legal remedies, while not all harassment is a “hostile work environment” within the meaning of the law, a sexual assault at work very likely is.  Sometimes, the level of recourse you have against your employer depends upon the employer’s response.  If your employer responds appropriately to investigate, protect you, and discipline the perpetrator, then you may have less recourse for your lost wages if you decide to leave the workplace.  On the other hand, if your employer does not take your complaint seriously, does not remedy the situation appropriately, or retaliates against you for complaining, the law may support what we call a “constructive discharge” – a situation where the employee resigns but still has legal recourse for their lost wages.  Both state and federal law also allow for recovery of emotional distress damages stemming from a sexually hostile work environment.

New York law also protects victims of domestic violence in the workplace, and domestic violence can include sexual misconduct and offenses.  The law not only protects victims of domestic violence from discrimination, but also requires reasonable accommodations for certain types of absences including to seek medical attention, attend court proceedings, and receive services. 

Assaults, in or outside of the workplace, can also give rise to civil liability for the perpetrator.  Assault, battery and false imprisonment are all civil legal claims that can be brought against the perpetrator of an assault in a lawsuit.  It is important to keep in mind that these types of claims – which are called “intentional torts” – have a short one-year statute of limitations in New York.  Currently, the NY Adult Survivors Act is in effect, which has reopened the statute of limitations, for a limited period of time, for sexual assault claims by individuals who were assaulted as adults.  New York previously had this type of law in effect for child victims – you’ve likely heard about it in the context of claims of clergy sexual abuse. 

Sometimes a sexual assault happens under circumstances that can also give rise to a negligence claim.  These types of claims have a longer statute of limitations.  An example could be suing a property owner for lax security if they know of a threat.  Recently, a New York family was sued successfully for a sexual assault perpetrated by their son against a girl sleeping at their home. 

Navigating the legal process and its various options after a traumatic event can be overwhelming.  Luckily in our community we have resources like Wellspring, the Legal Aid Society of Northeastern New York, the Catholic Charities Domestic Violence Project of Warren and Washington Counties, and The Legal Project in Albany, as well as private attorneys, who are able to assist.

Ways to Learn More and Support Sexual Assault Survivors this Month:

Denim Day: Wear denim on Wednesday, April 26 to bring awareness to the stigmas and victim blaming surrounding sexual assault.  This day commemorates a (shameful) Italian court case in which the judge found that, because a young woman was wearing tight jeans at the time of her assault, she must have assisted in removing them and, therefore, the assault was consensual.The next day, the women of the Italian Parliament came to work in jeans in solidarity with the victim. 

ABOUT THE AUTHOR

Giovanna A. D’Orazio has experience litigating, among other things, commercial, general civil, employment, land use and personal injury matters in New York State and federal courts. Giovanna also has experience litigating Article 78 proceedings in New York State court.