Last minute brinkmanship and overseas assist end Fox case

Before retiring from the sidelines of a trial, Fox News and Dominion Voting Systems faced a stern deadline — not from an impatient judge or jury, but from a man on a Danube cruise with his wife half a world away.

A mediator hired late Sunday urged the two sides to a $787 million settlement that brought a stunning end to the most-watched media libel case in decades, a case that sought to punish lies about the 2020 presidential election about America’s favorite conservative news agency .

“It’s a deadline I always set because I know that once a jury is assembled and opening statements are made, one party or another will deepen their positions,” Jerry Roscoe of Washington’s JAMS mediation service said Wednesday. “That makes the negotiations much more difficult.”

While haggling continued over the phone and in back rooms of a Delaware courthouse, attorneys, journalists and onlookers waited as the trial’s scheduled start time at 1:30 p.m. Tuesday came and went.

Finally, at two minutes before 4:00 p.m., Superior Court Justice Eric Davis emerged with an almost sober announcement in light of the stakes.

“The parties have resolved their case,” he said.

It was a months-long settlement as Colorado-based voting technology company sued Fox for $1.6 billion, claiming its business was harmed and employees threatened when it was baselessly accused of using its voting machines against former President Donald Trump to have manipulated in 2020.

In the two months leading up to the trial’s scheduled start, a mountain of evidence — some damning, some just embarrassing — showed many Fox executives and on-air talent didn’t believe the allegations, which mostly surfaced shows by Maria Bartiromo and Lou Dobbs were broadcast and Jeanine Pirro. At the time, they feared angering Trump fans in the audience with the truth.

Davis ordered the two sides to try to settle their differences last December, but it was a false start for Dominion. The company did not want the case to end without all the evidence it had gathered being made public. That happened in February and March with filing documents that essentially outlined the case that Dominion would have presented in court.

“We were committed to that from the beginning,” Dominion CEO John Poulos said Wednesday on ABC’s Good Morning America. “We had the full support of our partners and we owe it to our customers.”

Fox had argued that it was spreading newsworthy allegations from Trump aides and that Dominion’s fall was an attack on press freedom.

Defamation is difficult to prove – a jury must find journalists who knowingly published false information or “recklessly disregarded” the truth. But Fox’s path to victory narrowed, both by the evidence presented and by judgments from Davis, who said the allegations against Dominion were undoubtedly false and that newsworthiness was not a defense against defamation.

Attorneys for both sides, Justin Nelson for Dominion and Dan Webb for Fox, began quietly seeking a settlement before the trial. Since the two sides were far apart, they turned to intermediary Roscoe, who then cruised between Budapest and Bucharest with his wife. He agreed to take on the case and spent much of Monday going through the evidence.

“My job is to create options and give them choices,” Roscoe said.

He was on the phone constantly from the boat, mostly with attorneys other than Nelson and Webb Tuesday as they prepared for the opening address, and with principals like Poulos, seated in a conference room in the courthouse.

Davis released the two sides to speak on Monday. A panel of judges was selected Tuesday morning that included five black men, four white women, two black women and one white man. According to the company Nielsen, it was a majority black jury that decided the financial fate of a network whose audience is 94% white and 1% black.

Jury selection can be a pivotal moment in getting two sides to reach a last-minute settlement, said Lee Levine, a veteran First Amendment attorney.

There’s a strong possibility that “Fox decided to wait and see what kind of jury it attracted and see if they had a few people on the jury who felt good about being holdouts,” said Levine.

Fox privately resisted the notion that jury selection was key to a deal, saying instead that there were complicated negotiations that needed to be fought out.

Meanwhile, after a lunch break, people returned to a courtroom crammed with boxes of evidence. Speaking on a cellphone, Webb approached Nelson to speak softly more than once. Webb was once seen walking out of the courtroom with a big smile on his face.

Levine walked his wife on a North Carolina beach and wore earplugs to listen to the opening speech audio feed. When court had not resumed at 2:30 p.m., his instincts told him that a settlement was at hand.

When did Roscoe have this feeling?

“When it came together and not a moment before,” the mediator said. “The parties had differing analyzes of the law and the facts and defended their positions vigorously throughout the negotiations.”

The settlement was reached before 3 p.m. in Delaware or before 10 p.m. on Roscoe’s boat.

The negotiations were primarily financial in nature. Fox publicly stated Monday that Dominion had lowered its damage estimate by $600 million. Dominion denied that, but the eventual deal was closer to what Fox said was the adjusted figure.

Some Fox critics were upset with the deal and instead wanted to see a trial with Fox personalities being forced to testify publicly, or at least Fox personalities being forced to apologize to Dominion on the air.

Instead, Fox issued a statement saying it acknowledged Davis’ findings that “certain claims about Dominion” were false. “This agreement reflects Fox’s continued commitment to the highest standards of journalism,” Fox said.

Levine sees it this way: “At the end of the day, I think there was a line that Fox wouldn’t or couldn’t cross because of its business model.”

“They couldn’t have their hosts go on the air and tell[the viewers]they lied to them,” he said.

“I don’t think a coerced apology is worth a penny,” said Stephen Shackelford, Dominion’s co-lead counsel. He said that following a December 2020 legal threat from another tech company, Smartmatic, Fox aired an interview with an election expert debunking allegations of fraud and that it had little impact on Fox’s audience or the way Fox operated .

Smartmatic has a pending lawsuit against Fox similar to Dominion’s.

“You can’t change your culture and approach from the outside,” Shackelford said. “You have to do it yourself”

Fox had no immediate comment on Wednesday alongside the statement made with the settlement.

In finalizing the deal, Poulos said he had to consider employees and customers who suffered harassment following the false claims. He noted that Fox had acknowledged the court’s rulings that the allegations were false.

Given the challenges he faced trying to bring Fox and Dominion together over their disputes over fact and legal theory, Roscoe said this was one of the most meaningful cases he had worked on in his career. However, his wife can insist on another vacation.

“She was probably on the internet looking for another husband,” he joked.