Roger Ailes’ death complicates sexual harassment cases against him,
Roger Ailes may be remembered for founding Fox News and the sexual harassment allegations that later led to his ouster. But his 50-year career had many other milestones. USA TODAY
Roger Ailes is dead, but sexual harassment lawsuits and investigations involving the former head of Fox News will continue — posing new legal challenges for both sides.
Many lawsuits and investigations that target a single individual would be dropped if that person died while the case was pending. However, many of the legal matters involving Ailes also target Fox News and or parent company 21st Century Fox. The proceedings are expected to move forward, and would likely substitute Ailes’ estate for the man himself as a named defendant, said Gloria Allred, a nationally known attorney who has handled many women’s rights cases.
21st Century Fox so far has paid $45 million in settlements related to sexual harassment cases against Ailes, the company reported in a Securities and Exchange Commission filing earlier this month.
The absence of the man who helped build Fox News into a media powerhouse that changed U.S. broadcasting and national politics could affect both the defense and the plaintiffs in still-pending sexual harassment cases, said Jack Schaedel, a Los Angeles-based partner in the labor and employment group of national law firm Dykema Gossett.
Plaintiff lawyers in the cases won’t be able to question Ailes in court.
Anything Ailes purportedly said before his death would be less likely to be allowed into evidence unless it is corroborated by an independent witness or Ailes previously was questioned about it in a sworn deposition, said Schaedel. For the attorneys representing women suing Ailes and Fox, that limitation could make it more difficult to introduce any alleged harassing comments.
However, Ailes’ absence cuts both ways, depriving attorneys for Fox of the ability to have him in court denying the plaintiff claims and providing explanatory context for decisions and statements by him and the company.
The pending lawsuits include a federal case filed last year by Lidija Ujkic. She alleged that Ailes failed to hire her for a Fox News job after questioning one of her former boyfriends about whether she would “put out, sexually.” Told that she was a “very nice girl,” Ailes allegedly called her and said he did not believe she was “ready” for Fox News, the lawsuit charged.
“When our client testifies to these things, Roger Ailes will not be there to rebut her,” said Douglas Wigdor, a New York City attorney representing Ujkic. “Fox won’t be able to call him (as a witness) and say that’s not true.”
However, the company may be able to produce workplace records that would provide context, said Emily Martin, general counsel for the National Women’s Law Center.
Attorneys representing Fox and Ailes did not respond to messages seeking comment. Lawyers for other women who filed similar cases declined to comment Thursday, citing the grieving of Ailes’ family.
“Roger Ailes has left behind a grieving widow and teenage child. They did nothing wrong, and surely deserve our sympathy,” Judd Burstein, the lawyer representing former Fox News host Andrea Tantaros in a sexual harassment case, said in a written statement.
Burstein is appealing a New York Supreme Court ruling that Tantaros’ case should be handled in an arbitration proceeding.
Nancy Erika Smith, a New Jersey attorney who has represented women who sued Fox News and Ailes, issued a statement saying “that’s not a discussion for today,” when asked about those cases.
Smith’s legal clients have included former Fox and Friends host Gretchen Carlson, who in September won a $20 million settlement and an apology from Fox’s parent firm after she filed a sexual harassment case against Ailes. Smith also represents Julie Roginsky, who filed a similar complaint in April.
Fox News separately faces federal investigations involving business practices that may have been related to the sexual harassment allegations. The probe came to light in February, after Burstein said federal prosecutors were investigating Fox over settlements the company paid to individuals who filed sexual harassment suits against Ailes.
Fox later issued a statement that said the company had been in communication with the U.S. Attorney’s office “for months” and would “continue to cooperate on all inquiries with any interested authorities,” USA TODAY reported in April.
The U.S. Attorney’s office in Manhattan on Thursday declined to comment on reports about the investigation. However, Gabriel Sherman, the author of a book about Ailes and the development of Fox News, tweeted that unidentified sources had told him the probe would continue.
Follow USA TODAY reporter Kevin McCoy on Twitter: @kmccoynyc
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