Suits linger af­ter Ailes’s death

The court cases — and the legacy — that he leaves be­hind.

The Washington Post - - FRONT PAGE - BY JENA MCGRE­GOR jena.mcgre­gor@washpost.com

Roger Ailes, who died Thurs­day at the age of 77, left be­hind a legacy as a builder of a con­ser­va­tive me­dia em­pire and a strate­gist for dozens of po­lit­i­cal cam­paigns.

But Ailes, whose perch at the top of Fox News ended sud­denly last sum­mer fol­low­ing sex­ual ha­rass­ment al­le­ga­tions, also leaves be­hind sev­eral pend­ing law­suits al­leg­ing ha­rass­ment or race or gen­der dis­crim­i­na­tion in­volv­ing two dozen cur­rent or former em­ploy­ees. Some of those cases cited Ailes and Fox News as de­fen­dants.

With his death, some are won­der­ing what will come of those cases.

If an ac­cused fig­ure dies, lawyers say, it does not change much from the plain­tiff ’s point of view, as the pri­mary or joint de­fen­dant is of­ten the em­ployer and a death does not mean plain­tiffs lose their abil­ity to pur­sue their claims.

But Ailes’s death will likely make things much harder for Fox News’s par­ent com­pany, 21st Cen­tury Fox, adding to the pres­sure to set­tle, lawyers say. One man­age­ment-side lawyer said the death of a key per­son in such a case is “a de­fen­dant’s worst night­mare.”

“There’s no­body who’s go­ing to be able to sit on the stand and es­sen­tially say these things that are al­leged are not true,” said De­bra Katz, a Wash­ing­ton lawyer who of­ten rep­re­sents plain­tiffs in sex­ual ha­rass­ment law­suits.

Dou­glas Wig­dor, who rep­re­sents mul­ti­ple plain­tiffs in the Fox cases, said in an emailed state­ment that “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.” Wig­dor de­clined to an­swer ques­tions about what the im­pact on a set­tle­ment could be.

Other lawyers rep­re­sent­ing former Fox News em­ploy­ees who have filed claims against Ailes or Fox News de­clined to com­ment on the im­pact of his death.

Nancy Erika Smith, who rep­re­sents former host Julie Ro­gin­sky, said only that “to­day is not the day for that dis­cus­sion” in an emailed state­ment.

Judd Burstein, a lawyer who rep­re­sents former host An­drea Tan­taros, re­leased a state­ment say­ing that Ailes’s widow and teenage child “did noth­ing wrong, and surely de­serve our sym­pa­thy. As such, any com­ment about Mr. Ailes at this time would be un­seemly and heart­less.”

Emails and a voice-mail mes­sage left for a rep­re­sen­ta­tive of 21st Cen­tury Fox — which said this month that lit­i­ga­tion re­lated to ha­rass­ment al­le­ga­tions had cost $45 mil­lion for the nine months be­fore March 31 — were not im­me­di­ately re­turned. Ailes had de­nied the al­le­ga­tions.

The very na­ture of sex­ual ha­rass­ment and dis­crim­i­na­tion cases — which of­ten play out in pri­vate con­ver­sa­tions or closed­door ses­sions that don’t have other wit­nesses — makes it es­pe­cially hard for de­fen­dants in the case of an ac­cused’s death.

“You ba­si­cally end up with a much more one-sided story,” said Stephen Chertkof, an em­ploy­ment dis­crim­i­na­tion and civil rights lawyer based in Wash­ing­ton. “As­sum­ing it was just ‘ he said, she said’ in pri­vate, now you’ve just got the ‘she said.’ ”

Katz says Ailes’s death is likely to pro­pel Fox to set­tle.

“I think it ab­so­lutely will push them closer to set­tle­ment, both be­cause it will be legally vir­tu­ally im­pos­si­ble to de­fend against these al­le­ga­tions, but it also gives them a lit­tle bit of a nar­ra­tive about why they’d be set­tling now,” she said.

Un­der the lead­er­ship of Ru­pert Mur­doch’s two sons, Fox has been sig­nal­ing changes to the me­dia com­pany’s pug­na­cious cul­ture. “I think it gives Fox a per­fect out now to say we con­tinue to be­lieve in the mer­its of our de­fense but as a prac­ti­cal mat­ter we can’t de­fend with the cen­tral fig­ure no longer alive,” Katz said.

Others agree that Ailes’s death could ramp up the in­ter­est in keep­ing the cases out of court or ar­bi­tra­tion pro­ceed­ings.

The de­fen­dant, Chertkof said, is “de­prived of an im­por­tant wit­ness, maybe the most im­por­tant wit­ness. It in­creases the pres­sure on the em­ployer be­cause it weak­ens their abil­ity to dis­prove the charges.”

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