Responsibility, “Winning,” and Apologies in Civil Settlement

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By, Jennifer K. Robbennolt, Alice Curtis Campbell Professor of Law, University of Illinois Urbana Champaign; Jessica Bregant, Assistant Professor of Law, University of Houston Law Center; Verity Winship, Professor of Law, University of Illinois Urbana-Champaign

In March 2021, Dominion Voting Systems sued Fox News for defamation, asking for more than $1.6 billion in damages. Dominion alleged that Fox had promoted misinformation about the 2020 election and Dominion’s role in it, airing and amplifying claims that Dominion’s voting machines had, among other things, manipulated vote counts. Dominion claimed that Fox News “sold a false story of election fraud in order to serve its own commercial purposes, severely injuring Dominion in the process.” Fox defended its coverage on First Amendment grounds and said it was simply reporting on newsworthy events.

In March 2023, the trial court judge ruled that the allegations published on Fox News were clearly false, but left it for a jury to determine whether Fox acted with “actual malice” in airing the claims, and to determine the amount of damages Fox would owe if was found liable. Shortly thereafter, on April 18, 2023, just as the jury was to be seated for trial, Fox and Dominion settled the case for $787.5 million.

Commentators were quick to note the record-breaking size of the settlement, and many characterized it as a “win” for Dominion. Many expressed the notion that by settling, Fox News was acknowledging that it did something wrong—an impression underscored by the size of the payment to Dominion. Attention focused too, however, on the statement issued by Fox—“We acknowledge the Court’s rulings finding certain claims about Dominion to be false”—a statement that was not apologetic, did not acknowledge any responsibility, and was not a retraction. Indeed, the specifics of what Fox would or would not have to say had been a key sticking point in the settlement negotiations between the parties. Observers also noted the benefits of settling for Fox: The news organization avoided a lengthy, costly, and likely embarrassing trial.

All these reactions are consistent with recent psychological research about how the public perceives and understands settlement. Even as people recognize the myriad reasons why two parties might choose to settle, including uncertainty and risk, costs in time and money, potential harm to reputation, and a desire to “move on,” people also tend to infer that a settling defendant was responsible. They recognize that settlement is a compromise between the parties but may also think about settlement in terms of winners and losers. When they do see a settlement as a win, they are more likely to view it as a win for the claimant than for the defendant.

Disappointment that Fox did not apologize or acknowledge responsibility also echoes the psychological literature. Research has found that many claimants desire apologies and can be motivated to sue from the lack of an apology. Research also finds that claimants try to negotiate apologies as part of a settlement, and express disappointment when they do not ultimately receive an apology and appreciation when they do. Apologies can be central to claimants because they can serve to acknowledge the harm and the harmful behavior, provide accountability, and remedy some types of harm (like the reputational harm suffered by Dominion).

The Fox–Dominion settlement was notable for its high stakes, the important underlying questions about the role of the media in democracy, and the way it abruptly halted an eagerly anticipated trial. But in many ways, the settlement underscored what psychological research shows about claiming and settlement. The case ended just as most civil cases do—via settlement. Given the central role of settlement in the legal system, public perceptions of settlement can play a key role in perceptions of the system’s legitimacy, people’s inclination to make legal claims, and how lawsuits are settled.

Edited by Ashley M. Votruba, J.D., Ph.D., SPSSI Blog Editor, Assistant Professor, University of Nebraska-Lincoln