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 it will likely make things much harder for Fox News's parent company, 21st Century Fox, lawyers say — one management-side attorney said the death of a key person in such a case is “a defendant’s worst nightmare” — adding to the pressure for them to settle.
“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, 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,” though he 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 “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 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 voicemail message left for a spokesperson for 21st Century Fox, which said this month that the costs tied to litigation related to harassment allegations had cost $45 million for the nine months prior to 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 closed-door 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, the company 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.”
Others agree it could ramp up the interest in keeping the case 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.”