Dominion v. Fox: Very Much Aforethought Regarding Malice And So Many Other Things
An Overview of the Highest Profile Case in the Delaware Superior Court of the 21st Century, but Also, Everything Else
Hello, friends! Just about an hour ago, we got word that trial is now set to begin Tuesday at 9am instead of Monday at 9am. What I know about this change is laid out below, along with a whole boatload of everything else. I hope you enjoy.
Y’all, this post may be too long for email — at least Substack keeps warning me that it might be, even though sometimes that appears to be Substack crying wolf. It may be just too long for [its own good]. It’s definitely too long for my own good, and I even cut out several thousand words, which should legitimately fill you with shock and awe.
I’ll remind you once again to click on the post title above and log into the web to read the most updated version of this little novella.
Before we begin…
I know we have a lot of new readers, so let me say a few prefatory words with apologies to our longtime fans and OG listeners, who have most certainly heard this all before:
First, anyone who doesn’t like to read probably isn’t going to like it here, unless you don’t like to read but perhaps really like having new experiences or expanding your horizons. Because, read, you shall. We do not take the short path here. We do not prize concision over all else. We enjoy the written word. We sometimes use the Royal We. We sometimes use staccato, reiterative sentences. We sometimes speak in meta conversation about the stylistic and linguistic choices we are employing in our writing. Sometimes, it gets weird.
The bottom line is, if you want some dry recitation of corporation law exegesis, I honestly don’t know what to tell you — there isn’t much of it going on, but it’s definitely not happening here. You can subscribe to our main publication, but that’s for lawyers, and if you are a lawyer who practices in the Court of Chancery, it’s effectively malpractice if you aren’t subscribed, so now I’ve circled back to not knowing what to tell you again. And anyway, even our daily legal publication’s commentary section is witty and interesting, and no one has ever accused us of being terse there, either. Look, I don’t know. If you haven’t read my disclaimer about my Substack writing style, you should. The first section of that post really covers the landscape of why I make the stylistic choices that I do.
So, please, don’t be like this guy in the tweet below, or — actually — if you do be like him, fine, it will make good fodder for Twitter content because the replies to this tweet were quite hilarious. (And to be clear, no hard feelings against this guy, I believe he was making the comment in good faith, but this is just not that, and anyway, I’m very sure no one was going to edit the post he was commenting on, which I had written over eight straight hours from the time the opinion was released until almost three o’clock in the morning, at three o’clock in the morning. In any event, it doesn’t matter if they would, because that’s not what this is for.)
But, where was I? Isn’t this post supposed to be about the Dominion v. Fox case? Y’all. This is the point. We will get there. You’re supposed to have coffee, tea, hot cocoa, wine, or some other beverage before you sit down with one of these posts. You can even have the Substack app read this shit to you if you’re super lazy, and the app is free! Anyway, have you learned nothing yet? This is how we do. I hope you have learned some things, because I have another important caveat before we begin here—
After the night I just had with the AMC crowd, let me bring a slightly different energy here for just a moment to erect a barrier to entry for anyone thinking that they are going to come in with some crazy, violent, aggressive, harassing, 3 o’clock in the morning hate speech in my DMs like they did last night.
I want to be really clear. I am not here to get in the weeds of any politics. I’m a Court of Chancery law reporting account. I don’t want to hear about your politics. I really do not care about your political views. I don’t actually care right now how you feel about Fox News or about Dominion voting machines. Neither item is germane to the issues in this lawsuit, in any real or meaningful way, ackchyually. So, please, go somewhere else if you are feeling heated about any of that in any way. I have had absolutely enough bullshit on the internet for a lifetime this week and my tolerance level is below zero. I have read nothing about this case other than what is in the public court filings, so everything here is based upon those and nothing else — not my personal feelings or biases or concerns or whatever else you may want to foist upon me. I don’t give a fck about these companies in real life because I have other things to worry about, and I will not be hoisted by my own petard and get myself involved in some political discourse here. This is one of the ironic reasons I loved corporate law in the first place, why I always thought it would be good for a person with the kind of heart that I have, because I’m a bleeding heart if I’m being honest. I was asked — nay, I was begged to write up the legal issues around this case, and I have. If you can’t leave it at that, or engage with the merits of the legal conversation, you will be immediately and permanently banned, and unfortunately, fifty other people ahead of you freyed the last of my nerves, so you’d better heed this warning shot, because there will not be another. /rant
I very much love you all. Be better.
So, without further ado…
We now return to our regularly-scheduled programming: Dominion v. Fox
The Dominion v. Fox trial (should it actually occur) is going to involve some of the most egregious and boisterous personalities known to humanity: Sean Hannity, Jeanine Pirro, Lou Dobbs, Bret Baier, Tucker Carlson, Lachlan and Rupert Murdoch, Paul Ryan … and certainly documentary evidence from and about Sidney Powell, Mike Lindell, Rudy Giuliani and many others.
One thing that was really clear in covering Elon Musk in both the Tornetta trial and the N.D. Cal. trial was a phenomenon that will certainly manifest here, repeatedly, with these witnesses. These are people who — like Elon Musk — are not accustomed to being told no, ever. This is something that comes to light starkly in particular when folks like this are put under cross examination. Heck, it’s even sometimes a problem when Elon Musk is sitting on friendly, direct examination! He simply does not like to be questioned. It is unusual, uncomfortable, and it shows. You can immediately sense that it’s not his normal state of being.
And it’s going to be a very similar vibe for many of these personalities. And personalities these all are. They are people who are used to having the lights just so, the makeup and hair people available on demand. We all remember how Bill O’Reilly freaked out when the monitor wasn’t just so and it threw him off and he pitched a fit that was caught on B-Roll. How are these folks going to react in a completely foreign environment where everything isn’t perfectly drawn and quartered in their favor?
I have no idea … but in addition to the fascinating legal issues at play here, Delaware is sure to be the backdrop for a six-week drama that’s is undoubtedly going to be one for the history books.
The Chancery Daily mainly covers the Delaware Court of Chancery, which you could perhaps — if you are a close and careful reader — adjudge by our name. The Court of Chancery is special in many ways, but the main one arguably is that it is a court of equity, as opposed to a court of law. You’ll note that the words “equity” and “law” are different words, but if you are like the hundreds of reporters who failed to notice the difference between the names “X Corp.” and “X Holdings I, Inc.” for three solid weeks, then perhaps you don’t actually see the massive difference that I do between the two words: equity and law.
Well, let me be the first (perhaps) to tell you that equity and law are very different things not only when it comes to the fact that they share no alphanumeric characters in common, but also when it comes to calling something a court of equity and another thing a court of law. What it means in this instance is that the Delaware Court of Chancery has a fairly non-overlapping jurisdictional ambit with its sister court, the Delaware Superior Court, which is a court of law. This means that the two courts work side-by-side, arm-in-arm, to administer justice, with necessary overlap for efficiencies (wherein, for example, the Court of Chancery will address certain questions of law under the “clean-up doctrine” and now under the new cross-designation order, judges from the CCLD will sit as Vice Chancellors to hear § 111 cases in the Court of Chancery). Defamation has always been one of those issues that straddles the line, or perhaps the straddling of a fence is a more appropriate metaphor, in the same sense that one might awkwardly and uncomfortably straddle a fence that is too high to surmount with one foot cleanly on either side of the ground to support the full weight of the corpus.
Alas, I say all of this to you with only a vague sense of wtf I am talking about here because if there is one thing that I have been diligent about over the past while, it has been trying my level best to keep defamation law out of my brain. I am not sure I can fully explain why, but perhaps it’s a common experience for anyone who is lawyer-shaped and went to law school to simply have areas of law wherein the mental, physical, and even visceral response to hearing of them is simply: NO. For me, it looks like this:
That’s just always been how defamation presents itself. I don’t care. I don’t want to know about it. I don’t want to read about it. I don’t give a fck about it. I have no interest in it. It was the same way in law school. I loved Corporate Law from the first day of reading in Professor Wachter’s Corporations class and it only grew during my time as his research assistant and into his seminar with Leo Strine. Other passions were fleeting, such as my brief fling with Administrative Law (omg, can you imagine), which I entirely blame on the fact that I had a smol crush on Professor Coglianese (c’mon, don’t tell me you never had a crush on a professor in college). Anyway, look. People have weird preferences. I can’t explain them. As for nowadays, in my work life, I tolerate defamation with a hefty amount of whinging and discontent when I have to fulfill my responsibilities as Editor-in-Chief of our daily legal trade publication concerning cases involving commercial defamation, mostly between competitor companies talking smack about each other. Luckily for me, matters of defamation that can be said to properly land within the orbit of our main publication are few and far between, so I can do a little Matrix-style bullet-dodging and generally wend my way through the thicket of vis-vitae-vacuuming projectiles and come out the other side fairly unscathed.
It turns out that — after somehow surviving the world’s absolute Greatest Circus on Earth™️ last year, which I spent an inordinate amount of lung capacity describing as “unprecedented” and a “one-off, once-in-a-lifetime opportunity” and promising my family that it would be a “temporary reallocation of all my time to work” — now, there just happens to be a once-in-a-hundred-year legal flood every two fcking months in Delaware?
Is it just me, or is the rise of norm busters actually causing this to be a real problem that we aren’t fully appreciating? I mean, I think it’s all of a piece, and speaking of pieces, I do recognize that I haven’t even started writing this one yet for real, but this is very important and we need to talk about it.
The Twitter v. Musk matter was absolutely the highest-profile case that the Court of Chancery had seen in a long time, and it never even made it to trial. It seemed like a one in a million, nevermind a one in a hundred. It was the world’s most extremely online man versus the world’s online-iest online social media platform, and we were covering it (and it was unfolding) on that social media platform. It was truly bananas. There was no other way to describe it, other than as a singular opportunity that demanded one’s participation. It was never going to come back around for a second chance for Chance. But, then in early [insert some month that is several before whatever month it is now but after the time period during which Musk closed the Twitter deal, which I believe was the one called October], people started calling me and asking me to take a look at the AMC case, telling me that it was “even crazier than the Twitter matter,” which I really did not understand because the Twitter matter had been the batshit craziest experience I ever could have imagined. But the thing is? They were right.
And I’ll spare you all the details of how that is playing out, because I already promised you several paragraphs ago that we were going to get to the point someday. Anyway, then while the AMC case is still going on, just as I began to handle all the actual business and regular life matters I had left unattended for the eight months of casting everything recklessly aside to address the Twitter case 24/7, people start making noise about Dominion v. Fox. And I start looking into it. And I’ll be damned. It’s the highest profile case of the 21st Century [Fox] to ever see the inside of the Delaware Superior Court. There have been a couple of high profile cases in the past dozen years, but they were very Delaware-centric, and nothing that could ever be said to attract this kind of national media attention. The Capano trial in 1998 did have it all, but no question, Dominion v. Fox is a once-in-a-hundred-year flood involving some of the most outsized media personalities of our time, but you know what? I think it’s happening for a reason. I do not think it’s random.
I think it’s happening because norms are being busted with greater and greater frequency and force.
The Dominion case is happening for the same reason that the Twitter matter happened. It’s happening for the same reason that the AMC case found its way to the Court of Chancery. Let me be clear — the three cases almost could not vary more widely on the substance of their legal and equitable claims: one is a breach of contract case at heart, another is (arguably) a breach of fiduciary duty case first and foremost, and the last, is a defamation case. But truly, under the surface of all the various claims is a theme, and admittedly to a certain degree, it is the theme of all civil lawsuits, since civil cases are all about folks who decided to overstep the bounds of what was proscribed by contracts or duties or statutes or civil laws … but something feels both different and of a piece here. Something feels like a change in quality, not in the sense of good or bad, per se, but in the sense of degree.
Why have there been three one-hundred-year floods in my backyard in the past ten months? It’s a question I think we need take seriously and not just rhetorically, because if it’s the first sign of an exponential curve, I don’t think we are prepared to handle it, and the pandemic taught us a lot of things (or perhaps more accurately, it taught us how bad we are at being taught lessons), but mostly I think it demonstrated how abjectly poor our human brains are at handling phenomena that move at an exponential pace. So, with the speed of filings picking up steadily in Delaware Courts and also the magnitude of the cases enlarging in parallel, I fear that quotidienne responsive measures may not suffice to handle the onslaught. Then again, as I discussed here, Chancellor McCormick is an absolute genius (speaking of aforethought, I feel like — as I belabored on the podcast — it’s her speciality and, btw, her antipodality to Elon Musk) and she never ceases to amaze me with the creative mechanisms she finds to take government-issued fishes-and-loaves and turn them into a full feast.
Ok, I think I’m ready now. Let’s poke at this thing from a couple of points of entry to feel it out.
Start with the end in mind
It is perhaps useful to start with the end of this case in mind, especially for non-lawyers, since I know there are a lot of folks following this case who aren’t necessarily practicing lawyers. One thing we should keep in sight at all times during the pendency of this jury trial, which will be an insane six weeks (which sounds like some kind of medieval torture chamber compared to the longest-possibly-conceivable-bench-trial-being-about-ten-days in the Court of Chancery) is that it will one hundred percent guaranteed be appealed to the Delaware Supreme Court. In fact, because there is a First Amendment issue at play here, this case could be appealed from the Delaware Supreme Court to the Supreme Court of the United States. I hesitate to say that it will for certain be appealed on that basis, but it’s certainly a procedural possibility. And with the stakes of this case, and the way that it has been litigated, it’s certainly necessary to keep in mind that whatever the outcome of this jury trial is, six very long weeks from now, it will most certainly not be the end of the story. I’m getting very depressed thinking about this, so let’s take another vector and see where it leads us.
I suppose I should say first (please don’t laugh, given that we are now thousands of words into this piece … okay, fine, you can giggle briefly, I’ll wait …) that Dominion v. Fox is a defamation case being heard in the Delaware Superior Court, which was brought by U.S. Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation against Fox News Network, LLC and Fox Corporation. For the law types among you (and because it drives me insane when reporters don’t include such information in pieces that I’m reading, the civil action number for the case is C.A. No. N21C-03-357-EMD).
There are other, related cases pending in the Delaware Superior Court that you might have also heard about. In fact, this case that is going to trial beginning on April 17th is a consolidation of two matters (one versus Fox News Network, with the C.A. No. above, and the other consolidated action against Fox Corporation, C.A. No. N21C-11-082-EMD). But additionally, there are matters conceptually related between Dominion (but also Smartmatic) and Newsmax, and other things that I don’t like thinking about, because it means that this kind of thing could stretch on into infinite oblivion, so just know that the spectre is out there. Those other cases are also assigned to Judge Davis, but I refuse to know the C.A. Nos. because I refuse on principle to get up to speed on those cases as well, before I at least finish writing this god-forsaken post. I apologize, but you’ll have to live without that minutiae. I trust you will survive.
In any event, it’s my understanding that these cases generally relate to generally similar realms of phenomena, but I’ll speak about this case in specific, since it’s the only one that I know any fcking thing about.
Now is as good of a time as any to stick some links in here for your future reference, in case you want to take a really deep dive into how we got here, over the past few years. Here’s a historical walk through the prior major landmarks of this litigation: