The potential impact to the Fox News internal investigation is much more clear-cut, attorneys say — especially since the claims involve an alleged company-wide culture and not an individual’s isolated actions.
“Fox has an obligation to complete the investigation, with whatever witnesses are available to them, and reach a conclusion as to whether misconduct occurred and take corrective action to ensure that the conduct does not occur,” says attorney Ann Fromholz, who specializes in corporate investigations. She says it’s unclear whether Ailes was interviewed by investigators in the months following his resignation, but it’s unlikely to significantly affect the outcome.
“If the problem is bigger than one person then the unavailability of one person to be interviewed isn’t going to materially affect the investigation,” says Fromholz. “Other witnesses will be able to tell what happened and there will be corrective action that the company needs to take.”
As for the probe being handed by the U.S. Attorney’s Office in the Southern District of New York as well as civil lawsuits from Julie Roginsky and Andrea Tantaros (both of whom named Ailes as a co-defendant in their respective complaints), the absence of a central figure like Ailes could be problematic in a couple of ways. For whatever happened during Ailes’ tenure, those inside Fox News’ ranks now have a convenient fall guy to lay blame on. Secondly, there could be quite the disruption as parties begin fighting about what evidence is admissible and what’s constitutes hearsay. A court is likely to recognize that Ailes is no longer around to challenge statements he allegedly made.
This could swing things in different directions. If a judge decides to preclude evidence, that could potentially undercut claims from alleged victims. But what if the judge is lenient? “It might significantly weaken the defense if [Ailes] is not around to give an explanation,” says Fromholz.
Then again, the judge could allow all sorts of statements that Ailes made in his favor outside the court. Normally, these wouldn’t be allowed because there would be no opportunity for cross-examination, but an exception to the hearsay rule could theoretically be made because of his death.
“If I had a conversation with the defendant, I can say he told me this,” says Bryan Sullivan, an entertainment litigator at Early Sullivan. “That’s technically hearsay, but it’s outside of the hearsay rule. It gets really technical.”
Attorney Douglas Wigdor, who’s currently representing more than a dozen people in lawsuits against the company, made noise shortly after Ailes’ death by issuing a statement Thursday saying his passing will “make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date.” Specifically, Wigdor references a lawsuit filed against 21st Century Fox by Lidia Curanaj, who claims she was passed over for a network gig in 2011 because the CEO was told by her ex-boyfriend that she was a “nice girl” and he inferred that she wouldn’t “put out.”
But the problem there is that Ailes is not a co-defendant in the case, and Curanaj didn’t directly work for him. Her lawsuit centers on claims that she was repeatedly denied a full-time time job at New York affiliate Fox 5 because of her age. Fox attorney Linda Goldstein is currently asking the court to strike the comments about Ailes, along with others involving O’Reilly, because they’re irrelevant and prejudicial. “It is clear that the Ailes and O’Reilly Allegations are designed to ‘inflame the reader,'” writes Goldstein. “In fact, the O’Reilly allegations, which were added in the Amended Complaint, only highlight Plaintiff’s attempts to exploit complaints by other women who worked with Ailes or O’Reilly to her own ends. Their allegations, true or false, have no bearing on Plaintiff, who did not work with either Ailes or O’Reilly or even the other women.”
Prosecutors contemplating an indictment now have a decision on their hands about whether to move forward. In the civil lawsuits, plaintiffs and 21st Century Fox are meanwhile likely to re-evaluate the risks of continuing litigation.
Daniel Handman, a litigator at Hirschfeld Kraemer, believes that the absence of a key witness like Ailes could harm Fox because the company can no longer rely on a jury hearing his account of events. That said, Handman also wonders if this really incentivizes the parties to move on and strike settlements. He says, “Sometimes you don’t want to be seen as stepping on a dead man’s grave. How much more do you have to ruin his reputation after he’s dead?”