Now that Fox News has settled with Dominion Voting Systems, what are the odds of the San Diego owners of One America News doing the same in a similar defamation case?
Zero, if you ask Dominion. Unsure, if you ask Herring Networks, operator of far-right OAN.
Both gave answers in a joint brief filed Feb. 28 in Washington, D.C., federal court.
“Given the devastating harm to Dominion and the lack of remorse shown by the Herring Parties, Dominion does not believe that any realistic possibility of settlement exists,” wrote lawyers for the election technology firm in a so-called “meet and confer statement.”
Said the “Herring Parties” — which includes Herring Networks Inc., network president Charles Herring, network founder and CEO Robert Herring, OAN reporter Chanel Rion and former reporter Christina Bobb: “It is unclear at this time whether there is a realistic possibility of settlement, but the Herring Parties certainly deny that the Dominion Parties have suffered ‘devastating harm.’”
Lawyers for both sides didn’t respond to a Times of San Diego request for comment Tuesday. But a Dominion rep sent a statement about the Fox case.
Dominion CEO John Poulos said: “Fox has admitted to telling lies about Dominion that caused enormous damage to my Company, our employees and our customers. Nothing can ever make up for that. Truthful reporting in the media is essential to our democracy. Dominion, our employees and our partners are grateful to the court for allowing the process for the truth to come out.”
But if OAN, like Fox News in its massive $787 million payout pledge, springs a last-minute deal with Dominion at trial, it won’t be for another year or two.
Both sides submitted proposed scheduling orders in the case. (Judge Carl J. Nichols has yet to say which one he’ll go with — or stipulate his own deadlines for discovery and pretrial conference dates.)
Dominion’s legal team, seeking $1.6 billion in damages, suggests a jury trial in March or April 2024.
Herring attorneys say: “To the extent the Court would like a suggested [pretrial conference] date, the Herring Parties propose a time of the Court’s choosing between May 6, 2025 and June 13, 2025.”
The Herrings’ preference thus would be a trial in June or July 2025.
Discovery Bombshells?
Bombshell revelations about what Fox News hosts and execs thought about Donald Trump and his allies’ rigged-election lies came out of discovery in that case. Whether similar insider views are exposed in the OAN case is uncertain.
That depends on whether Judge Nichols issues protective orders — keeping company data under seal.
In any case, Dominion wants to know more about OAN’s defamatory statements “and the circumstances surrounding them and defendants’ knowledge of the falsity of their statements and reckless disregard of the truth.”
The vote-tech company — sued by the Herrings — also opposes curbs on discovery in that counterclaim.
“To the extent the Herring Parties’ counterclaim against Dominion survives a motion to dismiss, Dominion intends to seek discovery related to the Herring Parties’ claims and Dominion’s defenses,” lawyers said.
Dominion — which filed suit in August 2021 — wants documents, depositions of OAN staff and management, “and discovery from many third parties (some of whom are also defendants in cases before this Court and before the Delaware Superior Court),” meaning Fox News.
The Herring team says likewise: “The Herring Parties do not propose any limits on discovery beyond those in the Rules of Civil Procedure.”
Dominion suggests deadlines of Sept. 22, 2023, for fact discovery and Jan. 19, 2024, for completion of expert discovery. Herring asks that fact discovery be completed by May 30, 2024, and expert discovery by Oct. 3, 2024.
The Herring lawyers denounced Dominion’s deadline requests:
“The Dominion Parties’ proposed deadlines — including May 5, 2023, for serving document requests and September 22, 2023, for the fact discovery cutoff (i.e., 78 days and 213 days, respectively, from today’s filing) — are incredibly prejudicial to the Herring Parties.
“While the Dominion Parties have been enmeshed in similar discovery disputes from its various other cases — including those pending against Newsmax in New York state court and Fox in Delaware state court … — they essentially ask this Court to set a rocket docket for their case against the Herring Parties.”
Almost a year ago, OAN settled a separate suit with two Georgia election workers and announced on air that Ruby Freeman and Wandrea ‘Shaye’ Moss did not engage in ballot fraud or criminal misconduct while working at State Farm Arena on Election Night 2020.
“A legal matter with this network and the two election workers has been resolved to the mutual satisfaction of the parties through a fair and reasonable settlement,” OAN anchors said, not mentioning any dollar figure.
Dean Nelson, journalism program director at Point Loma Nazarene University, said Tuesday that the Fox settlement was the only way Fox could save face.
“Had this gone to trial, it would have exposed how their false-narrative machine really worked, and they didn’t want that to happen,” Nelson said via email. “Dominion made their point. As for OAN, they would be smart to do the same.”
Professor Emeritus Clay Calvert, former director of the Marion B. Brechner First Amendment Project at the University of Florida, told Times of San Diego: “Although it’s obviously a massive amount of money, the settlement cuts short a potentially far more reputationally embarrassing and protracted trial for Fox. A lot of potentially damaging facts for Fox will now be swept under a settlement rug.”
As for OAN: “It’s a very different entity, editorial viewpoint aside, so it is hard to predict the effect of Fox’s settlement.”
OAN — which also is being sued by Smartmatic, another voting-tech company — posted a 122-word story of the Fox-Dominion settlement on its website (ending with “This is a developing story”). As of 11:15 p.m., the story by Sophia Flores hadn’t been updated.
A video time-stamped “5:34 PM – Monday, April 17, 2023” showed OAN anchor Tom McGrath summarizing a series of stories. He gave 17 seconds to the Fox News settlement.
Largest Media Settlement
Legal experts said the Fox settlement Tuesday was the largest struck by an American media company. The jury had been selected earlier in the day and the trial poised for opening statements in Wilmington, Delaware. Dominion had sought $1.6 billion in damages in the lawsuit filed in 2021.
At issue in the lawsuit was whether Fox was liable for airing the false claims that Denver-based Dominion’s ballot-counting machines were used to manipulate the presidential election in favor of Democrat Joe Biden over then-President Donald Trump, a Republican.
Tuesday’s settlement spared Fox the peril of having some of its best-known figures called to the witness stand and subjected to potentially withering questioning, including executives such as Rupert Murdoch, the 92-year-old who serves as Fox Corp chairman, as well as on-air hosts Tucker Carlson, Sean Hannity and Jeanine Pirro.
Fox anchor Neil Cavuto broke into his news show “Your World” about 4:30 p.m. Eastern Time to report the settlement. A statement by Fox was read on air.
“We are pleased to have reached a settlement of our dispute with Dominion Voting Systems,” the statement 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.”
Fox has Billions in Cash
Shares of Fox Corp closed up slightly at $34 per share, but were down 1% in after-hours trading following disclosure of the settlement amount. Fox has cash on hand to pay for a settlement. It committed $3 billion to buy back shares in the first quarter after revenues beat estimates. Fox Corp CEO Lachlan Murdoch told Wall Street analysts in February that the company had about $4 billion cash on hand.
Dominion lawyers declined to answer questions about whether Fox News would apologize publicly or make changes.
Fox News is the most-watched U.S. cable news network.
Dominion sued Fox Corp and Fox News, contending that its business was ruined by the false vote-rigging claims that were aired by the news outlet known for its roster of conservative commentators.
The trial was to have tested whether Fox’s coverage crossed the line between ethical journalism and the pursuit of ratings, as Dominion alleged and Fox denied. Fox had portrayed itself in the pretrial skirmishing as a defender of press freedom.
Delaware Superior Court Judge Eric Davis, presiding over the case, had ordered a one-day trial postponement Monday. Fox was pursuing settlement talks, two sources familiar with the matter said. Davis delayed the trial on Tuesday, as the two sides appeared to hammer out the deal in private.
The primary question for jurors was to be whether Fox knowingly spread false information or recklessly disregarded the truth, the standard of “actual malice” that Dominion must show to prevail in a defamation case.
In February court filings, Dominion cited a trove of internal communications in which Murdoch and other Fox figures privately acknowledged that the vote-rigging claims made about Dominion on-air were false. Dominion said Fox amplified the untrue claims to boost its ratings and prevent its viewers from migrating to other media competitors on the right.
Another Lawsuit Pending
Adding to the legal risks for Fox, another U.S. voting technology company, Smartmatic, is pursuing its own defamation lawsuit seeking $2.7 billion in damages in a New York state court.
“For many plaintiffs, a court holding, and admission by the defendant about falsity, are even more important than any actual money damages,” said Mary-Rose Papandrea, a constitutional law professor at the University of North Carolina School of Law.
Fox had earlier argued that claims by Trump and his lawyers about the election were inherently newsworthy and protected by the U.S. Constitution’s First Amendment. Davis ruled in March that Fox could not use those arguments as a defense, finding its coverage was false, defamatory and not protected by the First Amendment.
The lawsuit referenced instances in which Trump allies including his former lawyers Rudolph Giuliani and Sidney Powell appeared on Fox News to advance the false allegations.
Murdoch internally described the election-rigging claims as “really crazy” and “damaging” but declined to wield his editorial power to stop them and conceded under oath that some Fox hosts nonetheless “endorsed” the baseless claims, Dominion told the court in a filing.
Under questioning from a Dominion lawyer, Murdoch testified that he thought everything about the election was on the “up-and-up” and doubted the rigging claims from the very beginning, according to Dominion’s filing.
Asked if he could have intervened to stop Giuliani from continuing to spread falsehoods on air, Murdoch responded, “I could have. But I didn’t,” the filing said.
Reuters contributed to this report.