Fox Beats $48M Lawsuit Claiming Former Exec Was Made a Sexual Misconduct Scapegoat

Francisco Cortes - Publicity - H 2017
Courtesy of FOX News

Few have ever accused 21st Century Fox of being too draconian on the sexual misconduct front. But Francisco Cortes, a former vice president at Fox News Latino, did in a $48 million lawsuit. On Tuesday, a New York federal judge dismissed his lawsuit with prejudice.

Cortes filed his lawsuit last July after The New York Times' Emily Steel reported in March that Fox had reached a $2.5 million settlement with on-air contributor Tamara Holder to resolve claims that Cortes had forced himself upon her. It was added in the story that Cortes was close to Roger Ailes, the now deceased former head of Fox News.

In his lawsuit, Cortes said he "served as a useful scapegoat for Fox to demonstrate that it aggressively handles sexual harassment complaints, as part of a carefully orchestrated plan to permit the Murdochs to eliminate concerns in the U.K. regarding their $15.2 billion acquisition of Sky in the U.K., and to protect the identity and shelter the reputations of the two unknown persons who, it must be assumed, were, unlike Mr. Cortes, not Latino, and not financially insignificant to Fox."

Reading the complaint, U.S. District Judge Robert Sweet comments that Cortes' complaint "alleges a conspiracy theory involving [Fox] Defendants, The New York Times, [the law firm of] Paul, Weiss, and others worthy of its own Martin Scorsese thriller. According to Plaintiff, the Holder Settlement Agreement was a payment by Fox News to Holder to breach the non-disparagement clause and share her allegations with Steel, a 'sycophant' journalist formerly employed with The Wall Street Journal — a publication owned by News Corporation, an entity affiliated with Defendants [as both are owned by Rupert Murdoch] — who, as a co-conspirator, was to publish those statements in The New York Times."

That's a mouthful, so consider the specific claims.

Cortes alleged that Fox breached contractual obligations by disparaging him in a joint statement to the Times. The statement included word that Holder reported an incident of sexual assault, that Fox News promptly investigated the matter and that Fox News was grateful to Holder for her contributions at the network.

Sweet concludes this statement cannot plausibly be read to disparage Cortes.

"The statement does not mention Plaintiff by name — a fact Plaintiff concedes in his opposition papers — or any other identifying facts or allegations made against Plaintiff," writes the judge. "In short, the Joint Statement cannot be read plausibly to indicate anything, let along anything discrediting, about Plaintiff. The rest of the NYT Article, which was written by Steel and based on statements told to her by Holder, not Defendants, cannot sustain liability against Defendants either under law, for which Plaintiff has put forward no authority, or plausibility, despite Plaintiff's [effort] to portray Holder and Defendants as conspiracy bedfellows."

(This determination is perhaps worth keeping in mind as Fox faces a separate lawsuit from Rachel Witlieb Bernstein and other Bill O'Reilly accusers for allegedly breaching non-disparagement and confidentiality provisions of old settlement agreements.)

Cortes also attempted to assert he was fraudulently induced through misrepresentation into signing the settlement agreement with Holder. The judge doesn't see any lies from Fox or attorneys at Paul, Weiss in the redacted documents given to him nor the communications surrounding the settlement. Additionally, Sweet concludes that Cortes hasn't plausibly alleged that he relied to his detriment on the alleged misrepresentations.

The judge writes, "At most, Plaintiff alleges that by signing the Holder Settlement Agreement, it 'forced him to remain silent against the allegations' against him with regard to his interaction with Holder, a right Plaintiff already signed away under the terms of the previously signed Severance Agreement, since Holder was clearly a Fox News employee as a Fox News 'contributor.'"

After dispensing with a civil conspiracy claim for similar reasons, and rejecting a tortious interference claim, too, Sweet tackles defamation.

"First, the Joint Statement is not alleged to be false," writes the judge. "Second, Plaintiff has not plausibly alleged that the Joint Statement put out by Defendants was a defamatory statement concerning him. ... There is no reference or description of Plaintiff in the Joint Statement. It is implausible that an average reader would understand the statement to be a reference to Plaintiff. ... That the Joint Statement was later incorporated by The New York Times into the NYT Article, and any implications a reader of the NYT Article might have drawn by the juxtaposition of the Joint Statement with Steel's article, does not create liability for Defendants, who were not plausibly responsible for what else was written."

Read the full decision here.