By: Todd Cunningham, The Recorder
May 19, 2017
It’s a rule of evidence—adopted in many states, including New York—that could help 21st Century Fox attorneys mount an effective defense in the raft of sexual harassment suits it’s facing, despite the death earlier this week of Roger Ailes. The Fox News founder, who paid $20 million to end a suit brought by former anchor Gretchen Carlson, was accused in several of the disputes that followed her explosive allegations.
The principle underlying the dead man’s statute dates back to the 19th century and is used today mainly in probate cases. Designed to prevent perjury, it prohibits a party with an interest in civil litigation from testifying against a dead party about communications with the deceased.
It would apply only in cases where Ailes, accused of making unwanted advances toward several female Fox News anchors and guests, was named as a defendant.
Jack Schaedel, part of the labor and employment group in the Los Angeles office of Dykema Gossett, said the Ailes scenario illustrates the reason for the rule.
“Harassment cases like these often involve ‘she said/he said’ situations,” Schaedel said, adding, “What’s to stop the plaintiff from saying that Ailes promised her $10 million for sex? If he’s not there to rebut it, does that mean she can say it and she wins?”
If there was any doubt that attorney Douglas Wigdor, the New York attorney who represents 21 plaintiffs who have sued Fox, would attempt to exploit defense weaknesses caused by the death of the 77-year-old conservative icon, it didn’t last long.
“The sudden passing of Roger Ailes will make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date,” he said in a statement released hours after the news of Ailes’ death broke.
He then cited accusations made in a pending Southern District of New York complaint by Fox reporter Lidija Ujkic. Ujkic, who does not name Ailes as a defendant in the suit, claims that he asked her to turn around so he could see her from behind and commented that he liked what he saw, and also called her ex-boyfriend to ask whether she “put out” and “how’s the sex?”
A suit filed in New York state court last month by Fox News contributor Julie Roginsky does name Ailes as a defendant. Roginsky claims Ailes made repeated unwanted sexual advances and that she was denied on-air opportunities for refusing him.
Even with the dead man’s statute, there are ways of getting the testimony in, said Ann Fromholz, an employment attorney who founded the Pasadena, California-based Fromholz Firm.
“He may have recounted one of the incidents to someone, or sent emails giving his side of the story, and that would be admissible as an exception to the hearsay rule,” said Fromholz, who suggested the absence of Ailes could present other challenges for Fox.
“It is going to complicate the discovery process, because they won’t have his take on some of the events in question. They will only have the accusations. He can’t help his own lawyers,” she said, noting that Ailes’ death will also affect who’s liable.
“We haven’t seen all the suits, but typically the estate would be responsible for any damages or monetary awards against the defendant,” Fromholz said.
Quinn Emanuel Urquhart & Sullivan partner Susan Estrich, who represented Ailes, did not return a call seeking comment. A call to Fox’s corporate headquarters was also not returned.
“Roger Ailes has left behind a grieving widow and teenage child. They did nothing wrong and surely deserve our sympathy,” Judd Burstein, a New York-based attorney representing former Fox News anchor Andrea Tantaros in a sexual harassment suit, said Thursday. His team is appealing a New York Supreme Court ruling which found that the dispute should be handled in arbitration. Burstein declined to comment on his team’s legal strategy, saying it would be “unseemly and heartless.”
“It seems odd to say,” said Schaedel, “but at some point a sympathy factor could kick in. Generally, juries tend not to want to criticize someone who’s dead, and his widow could testify, for example, that he was a wonderful husband, and took great pride in his helping young journalists make their way.”
Schaedel said there could also be a backlash if the jury perceives there is an element of “me too” in some of these suits, and thinks some of the plaintiffs are trying to cash in. Fox News has already paid out more than $45 million to settle suits involving Ailes, according to a recent U.S. Securities and Exchange Commission filing.
“Fox could make the point that these filings can be contagious, and suggest that with all the reports of these payouts, some of them may be treating Fox News like an ATM,” he said.
Ailes’ absence could also make it more difficult for Fox to defend itself against charges that its leadership should have done more once it became aware of the problems, leaving itself vulnerable to significant punitive damage awards.
“Typically, it’s the obligation of the top leadership of the company to see that there was a problem and take steps to correct it and prevent it from happening again,” Fromholz said. “In these cases, the top leadership of the company are the ones accused of creating the problem, and Ailes won’t be around to explain what happened.”