Roger Ailes’ Death Unlikely to Hamper Fox News Lawsuits

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By Jon Steingart

The death May 18 of Fox News former Chairman and CEO Roger Ailes is unlikely to deter the workplace misconduct lawsuits pending against the company, according to law professors and a lawyer representing some of the accusers.

“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,” New York City lawyer Douglas Wigdor said in a statement emailed to Bloomberg BNA May 18. Ailes hadn’t been deposed in several of the cases Wigdor LLP brought on behalf of clients who allege they encountered race, sex or disability discrimination at Fox News.

“The basic rule is witnesses have to testify live in front of everybody and be subject to cross-examination,” John D. King told Bloomberg BNA May 18. King is an evidence professor at Washington & Lee School of Law. “When someone dies, how does his unavailability affect all this litigation?”

Ailes’ death may allow Wigdor’s clients and other accusers to present things Ailes may have said out of court that would benefit their case. “From an evidence point of view, the interesting thing will be whether they’re admissible as statements by a party opponent,” King said. “A party can introduce a statement of the opposing party even if that person’s not available by death or another reason.”

“If he made any statements that had to do with his employment, those would be admissible against Fox News, I imagine,” King said. In cases where Fox News is named as a defendant along with executives who are said to have tolerated workplace discrimination, “these statements wouldn’t be admissible against those other individuals because he’s not their agent. Those other defendants might be in a little bit better shape now,” he said.

A Fox News spokeswoman referred Bloomberg BNA to a spokesman for its parent company, 21st Century Fox, who didn’t immediately respond to Bloomberg BNA’s request for comment about the effect of Ailes’ death on pending lawsuits.

In a statement posted to Fox News’ website, Rupert Murdoch, executive chairman of Fox News and 21st Century Fox, said Ailes was a “brilliant broadcaster.” Murdoch said they “shared a big idea which he executed in a way no one else could have.”

Different Fate for Lawsuits Against Ailes?

As for pending lawsuits that include Ailes as a defendant, “any sort of criminal case or civil case against the individual goes away when the party dies,” King said.

Ailes resigned from Fox News a few weeks after former anchor Gretchen Carlson sued him individually in July 2016, saying he sexually harassed her. Her lawsuit kicked off a flurry of charges against the company and top executives from reporters and administrative staffers that ultimately led to the departure of Bill O’Reilly, the station’s highest-rated anchor, and executive Bill Shine.

Carlson’s lawyer declined to comment about any potential effect of Ailes’ death on ongoing lawsuits. “That’s not a discussion for today,” Nancy Smith said in a statement emailed by a spokesman. Smith represents two other women with lawsuits pending against Fox News.

With Ailes’ death, the women suing Fox News and other executives can’t depose him to elicit new information, Colin Miller, professor of law and associate dean of faculty development at the University of South Carolina School of Law, said. “They can’t get him on the record,” Miller told Bloomberg BNA May 18. “They have to rely upon emails or witnesses who could come in and say ‘this is what Ailes said.’”

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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