Civil Settlements and DELAWARE CIVIL RULE 68 [View all]

[Effete Snob]

First off, Dominion was suing for $1.7B. If your gripe in life is "Fox could just buy its way out of the lawsuit" then you need to understand that lawsuits are primarily about whether or not a pile of money is going to go from one side of the courtroom to another.

Civil lawsuits can seek:

Declaratory relief - this is a type of remedy where you want a court to "declare" something about your rights or the other side's rights, such as "who owns this house".

Injunctive relief - this is a type of remedy where the court can require someone to do, or not do something, like "remove that fence from my yard" or "stop making noise at night". Significantly, in a defamation case, ordering an apology is not on the menu, since that gets into First Amendment issues.

ONE THING TO KNOW ABOUT THE DELAWARE COURTS - Delaware, unlike every other state in the country, has a separate court system for those two previous forms of relief. While pretty much only lawyers will appreciate this simple fact, the technical wording is that Delaware has not merged its courts of law and equity. If you are seeking non-tangible relief in a lawsuit, you have to take it to the Delaware Court of Chancery, and not Delaware Superior Court.

The third thing you can seek in a civil lawsuit, and it is by far the only thing usually sought, is monetary relief - i.e. that person owes me money or has injured me to the tune of $X and I want the court to order them to pay it to me.

Now, taxpayers don't pay the judge, the court employees, the jurors and everyone else for parties to come to court to put on a show for the purpose of entertainment. If you want to put on a national spectacle, do it in a state that has more than 800,000 people to pay for your entertainment.

In the US, the federal system, and most states including Delaware, have a rule described as an "offer of judgment". The way this works is that if you are suing for $X, and the other side offers to pay you $X, then the court, and by extension the public, has an interest in making you accept that offer.

The way we do that in this country is when the defendant makes an offer which they believe is equal to or greater than what you would get anyway, then they can invoke the "offer of judgment" rule along with the offer. Then, if you do not accept the offer, you are on the hook for all of the costs and fees of the defendant for the trial:



If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

You'll notice that the trial was all ready to go, but that the parties conferred with the judge before the thing ended. Normally, settlement negotiations are ongoing throughout the dispute and don't involve the judge (but may involve a mediator or other neutral).

So, here's your choices....

1. You can take $787B now.

2. You can spin the wheel for the next two or three years litigating, appealing and proving up damages to maybe get the present equivalent of that amount several years from now. Remember, it took quite a while for the litigation to even reach this point, and a judgment of $1.7B three years from now is not much better than the present value of $787B.

However, if you do take option 2, then if you do not end up with a judgment of $787B, then you are ALSO going to lose millions of dollars on paying Fox's legal fees - that army of $700/hr billers - in the event you come up short. Now, it may very well be that Dominion's lawyers had some sort of partial contingency arrangement, but Dominion would be on the hook for cash money to pay Fox's lawyers.

That's not even betting on whether you win or not. You could win, but come up way short on damages, in which case you could win the case but lose money in the process.

Nobody starts and runs a company for the purpose of scoring points in lawsuits. The company is answerable to its shareholders for making rational decisions based on the idea that the shareholders invested their money to see some kind of monetary return, and not "worthy citizen" awards from political junkies.

But the takeaway here is that, yes, "buying your way out of a lawsuit" is indeed one of the things that the system is designed to encourage. If someone thinks they are owed a pile of money, and that debtor is willing to pay a pile of money, then we don't ask the 800,000 or so people in Delaware, to pay for you to put on an entertainment spectacle.

In fact, the system is affirmatively designed to punish you if you turn down an offer that is in the neighborhood of what you'd be able to get at trial anyway.

If that is a problem for you, then make sure to pay a little extra in your taxes this month, along with a request that your contribution be used to pay for more courts, judges and paying the jurors more than $35 a day for six weeks.