Fox Trial Eve Musings

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A little tea leaf reading on the Dominion Fox trial. The trial, which was supposed to begin today, was delayed one day to allow the parties one last chance to reach a settlement. If you look at the details this appears to be at the judge’s instigation. That is not unusual. Judges would almost always like to see the parties resolve their disagreements prior to trial; and one day left before trial tends to focus people’s minds. In addition to a potentially mammoth judgment the trial itself is likely to be highly damaging to Fox. But the one day delay and final negotiations do not necessarily mean that either party has become more inclined to reach a deal.

There’s another point that comes up in this Post piece. Dominion appears to have dropped $600 million of its $1.6 billion claim against Fox. That $600 million was for lost future profits, whereas the remaining $1 billion was for lost “enterprise value.” The revelation is a bit murky because it came in a Sunday filing from Fox, which references an email from Dominion. But a statement Dominion gave to the Post appears to confirm that that part of the claim was withdrawn.

It’s not immediately clear to me why Dominion would pull that part of its claim. In the Dominion email referenced by Fox, the company said it “will not be presenting its claim for lost profits damages to the jury, given that it is duplicative of the lost enterprise value damages.”

There’s no way of knowing just what is going on behind the scenes here. But it’s at least possible to read that concession as opening the door to some kind of settlement.

It’s important to remember that these numbers do not include punitive damages, which I believe are not capped under Delaware law. Those represent another big potential danger for Fox. Dominion has also signaled that it will not settle the case without a clear and fulsome admission of error by Fox, likely to be delivered by its on air news personalities. That will be hard for Fox to agree to and potentially damaging with its viewers. So Fox will have to swallow a lot to prevent the case from coming to trial.

I had been skeptical that there was going to be a final day-before-trial settlement. But Dominion withdrawing part of its claim makes me less sure of that. Curious to hear from anyone with experience in this kind of litigation about what that tells them or how they interpret it.

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