Delaware Scores Another Massive Litigation Victory

Superior Court Judge Eric Davis Shows His Chops Managing This Nearly Unmanageable Docket

By now, you may have heard the news: Fox will pay Dominion $787.5 million dollars to settle its claims of defamation. There will be no grand (nor even half-assed) apologetic gestures or other on-air lamentations or extenuations.

The case, c’est fini.

And the whole thing ended before the attorneys spoke a word to the jury. The twelve jurors, and twelve alternates, however, certainly earned their keep and performed their service to the State of Delaware. As Judge Davis told them before they left: “This case was resolved because of you.” So true.

True too, though, one step further removed. This case was resolved because of the jury system, and the jurors, yes. But that system cannot function without the court within which it exists, and without the judge who oversees it. This case most certainly was resolved because of Judge Davis, and his deft, fair, and sure-handed navigation of this case throughout the years it has been on his docket.

As detailed in the grand post summarizing all things Dominion v. Fox, this case has been through a trifecta of summary judgment rulings (and then some), all the other various stages of preliminary discovery motions, hearings and — more recently — an entire morass of pretrial matters such as precede this type of monstrously-large, intensely-scrutinized, nationally-covered, high-stakes jury trial. And throughout it all, there has been one clear winner — well, maybe two: Delaware and Judge Davis.

I find these facts to be undeniable.

Throughout the popular press in this day and age, there are constant reports of the absolute mockery that is made of our legal and justice system — by that selfsame system — on a nearly daily basis. I don’t say this lightly — although perhaps as a member of the Delaware bar, I say it with a bit of hometown bias — and I truly believe it to be a factually-supported statement: that ish don’t happen ‘round this parts. Like, ever.

There is a reason why incorporation in Delaware is universally known to be the gold standard. There is a reason that so many VC firms insist upon incorporation in Delaware as a condition of their investment. There is a reason that most Fortune 500 companies, and a huge majority of IPOs, are incorporated in Delaware. Sure, low taxation is nice, yes, I love the DGCL, but have you ever tried litigating a case in Delaware compared to any other jurisdiction in the country? It’s fcking amazing.

Delaware has no heir apparent (and in my humble opinion, never will). You may have heard that Elon Musk recently moved his companies to Nevada, for example. Pscht. Ok, he’s a risk taker, fine. But despite all the noise over the years (nay, decades, now) about a “race to the bottom” or some risk of “capital flight” and other fear-mongering concepts in breathless law review articles, the thing is — it never really manifests. And, in my opinion, that’s because any general counsel worth their salt takes one look at the Delaware Courts, and then looks around country at the other alternatives, and says, oh, noooooooo, fck that. If we get in trouble, there is only one place we want to be, under one rubric, and one roof: Leonard L. Williams Justice Center (metaphorically, because also we love to be in Dover and Georgetown, too, obvs).

And yes, the Court of Chancery is my first love, but as the Dominion v. Fox case so clearly shows, its sister court runs a close second (and is only in the runner up position really because it has to host jury trials, against which I harbor perhaps irrational personal animus, but I suppose there are constitutional yada yadas that require such things). But whether you get caught up in law or in equity, we gotchu, boo.

The thing is that between the Court of Chancery and the Delaware Superior Court’s Complex Commercial Litigation Division (upon which Judge Davis sits), and with guidance from the Delaware Supreme Court, the Delaware Courts go to great lengths to cultivate a coherent body of corporate and commercial case law that is constantly being refined, and its the fcking sine qua non of all intellectual thinking in the space. This isn’t something that can be replicated on demand by the sporadic issuance of case law here and there. There’s no way to recreate the stability given by the body of law that’s being honed and refined on a daily basis in Delaware by these courts. Fcking try. There are entire countries around the world who just go: “Nah, we don’t have corporate law, we just wholesale adopt whatever Delaware does, kthxbai.”

But it’s not even only the intellectual quality and tenor and coherence of the case law that’s so impressive. It’s just the way the Courts handle themselves, from the top to the bottom. It’s also the vibe of the thing, which I’ve discussed before. It’s all notable. Everyone that attended this trial noted how impressive it all was. And despite the fact that some people were trying to fault Judge Davis for not updating reporters on why there was such a long delay (newsflash: obviously he could not tell you that the parties were working out a settlement and reporters did not deserve to get an update, yo), he handled this entire matter impeccably, as did his entire staff, as well as every single person in the courthouse and everyone who works in and around the building and in support of all its functions. Absolutely one hundred percent brava.

There’s no denying that — at a time in our country where the justice system can be an incredible embarrassment to the notion of justice itself — Delaware is an absolutely exceptional class act. And it absolutely matters. Because it proves to people that although we now all realize that Dominion is a private-equity owned company in a lawsuit not here to save democracy, but to — you know — reach a beneficial settlement in a civil lawsuit for damages, that there is one party to this whole deal that is truly looking out for the interests of justice: the Delaware Courts. And truly, today — again, damn, were they real winner.

And P.S., my friends, fret not, the dance has just begun for this matter in the Court of Chancery. The first related derivative case has already been filed, and with a three-quarters of a billion dollar settlement now on the books, you can guarantee that after a bit of books-and-records’ing, more are likely en cours.

For so many reasons, I love this for us…

As I said they say, watch this space.

Love, Chance