Fox Legal Chief Cites Judge Errors for $787 Million Settlement

Fox Corp. had to cut a $787.5 million deal with Dominion Voting Systems Inc. after a Delaware judge made a series of errors that effectively forced the media giant’s hand, said its chief legal and policy officer Viet Dinh.

With another US election cycle on the horizon and Fox facing months of agony in the courtroom, good business sense led to a settlement of Dominion’s defamation claims, Dinh said Monday in a discussion at Harvard Law School. While President Joe Biden won the 2020 US presidential election, Fox had a duty to its conservative audience to cover former President Donald Trump’s allegations that pointed to a potentially different result, he said.

“We are in the news business,” Dinh said. “You have the sitting president contesting the results of an election that he lost, hiring lawyers to go to court in order to challenge the election results, and asserting that at the end of the day he will have enough electors to overturn the election.”

Dinh, a close aide to Rupert and Lachlan Murdoch, will step down at year’s end after Fox announced his retirement Aug. 11. Dinh is set to receive a $23 million lump sum payment and a two-year contract paying him $2.5 million per year to be an adviser to Fox following its unsuccessful showdown with Dominion over bogus claims that the voting machine maker rigged the vote against Trump.

His parting with the company is amicable though largely due to unhappiness over his handling of the Dominion case and its outcome, Bloomberg News reported when Dinh’s departure was announced. The New York Times reported in May that Dinh faced criticism over his assurances to the Fox board that the company would ultimately prevail in the case, on appeal if not at trial.

Dinh didn’t mention Delaware Superior Court Judge Eric Davis by name in his Harvard remarks, though he said the crux of his dissatisfaction stemmed from a ruling that barred Fox from invoking a so-called neutral reporting privilege, such as addressing the “newsworthiness” of a defamatory allegation.

He said that while Fox’s lead outside litigator at trial—Winston & Strawn’s Dan Webb—was beside himself at the prospect of settling with Dominion, the company’s lead appellate lawyer, former US Solicitor General Paul Clement, was confident Fox had a good chance of overturning any judgment on appeal.

Clement, a former colleague of Dinh’s at litigation-focused Bancroft and successor law firm Kirkland & Ellis, was “doing cartwheels in his hotel room” at the thought of “winning this case back for the company, the First Amendment, and American democracy,” Dinh said.

Clement left Kirkland last year and now runs his own firm. Fox’s best outcome, Dinh said, was to avoid a protracted and likely ugly court battle with Dominion. Fox has yet to announce Dinh’s successor as its legal and policy chief.

Civil Discourse

In the hour-long talk at Dinh’s alma mater, he acknowledged that changes in the media diet of consumers present challenging questions for lawyers. Much of the television programming at Fox and its competitors involves opinion or relies upon guests offering up their own unsolicited views, Dinh said.

“We don’t like to think that lawyers make editorial and business decisions,” Dinh said about Fox’s operations. “We like to let reporters and business people make the best judgment in consultation with legal counsel.”

Fox has made the deliberate “editorial choice” to select stories based upon a “central right” point of view that it believes is an underserved market, Dinh said.

The departure of Tucker Carlson, who left about a week after the Dominion settlement, was unrelated to that deal and was a separate decision made by editorial executives at the New York-based company, Dinh said. Carlson is “being paid very handsomely by us and his contract,” he said.

Dinh, whose family immigrated to the US from Vietnam after the fall of Saigon, said his own personal views don’t sync with everything that airs during a 24-7 news cycle, during which time Fox broadcasts a “diversity of voices.”

“I sleep very well at night knowing that I’ve done my personal best to enhance the civil discourse in this country, rather than degrade it,” he said. “Could we do better? Absolutely, 100%, and that’s part of the hard decisions that we make.”