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Thursday, October 28, 2004

Mackris/O'Reilly et al. litigation settles with a whisper, not a bang

This is a very interesting and cryptic press release from counsel for Bill O'Reilly, Fox, and their codefendants, about which several of my readers have already emailed to ask for my interpretation:

Statement from Ronald Green, Epstein Becker & Green, P.C.
Thursday October 28, 6:41 pm ET

NEW YORK--(BUSINESS WIRE)--Oct. 28, 2004--The Parties regret that this matter has caused tremendous pain, and they have agreed to settle. All cases and claims have been withdrawn and all Parties have agreed that there was no wrongdoing whatsoever by Mr. O'Reilly, Ms. Mackris, or Ms. Mackris' counsel, Benedict P. Morelli & Associates. We now withdraw any assertion that any extortion by Ms. Mackris, Mr. Morelli, or Morelli & Associates occurred. Out of respect for their families and privacy, all Parties and their representatives have agreed that all information relating to the cases shall remain confidential.

The Associated Press reports tonight that

O'Reilly, who's married, is host of the top-rated prime-time cable news program — and he's seen his ratings go up by 30 percent since the case was filed....

Mackris' lawyer did not immediately return a telephone call seeking comment.

The New York Daily News had reported on Saturday, October 23rd, that unidentified "[s]ources say Fox has made it clear that any payments to Mackris would come solely from O'Reilly."  On the same day, WaPo's Howard Kurtz had reported, also without identifying his source, that "[t]he [on-going settlement] discussions involve payments to Mackris of more than $2 million."

So both the preemptive extortion lawsuit and Ms. Mackris' sexual harassment lawsuits have been settled, and the parties have contractually agreed to keep the details under their respective hats. 

But I'll hazard some guesses, reading between the lines as a trial lawyer who's handled both sides of sexual harassment cases. 

Bill O'Reilly, no longer a sexual harassment lawsuit defendantLawyers for Mr. O'Reilly and Fox et al. had initiated pretrial discovery proceedings to require Ms. Mackris' lawyers to turn over any and all tape recordings.  My strong hunch from the beginning of this case was that such tapes must exist, based on the specificity of the alleged quotes contained in Ms. Mackris' complaint.  My further strong hunch is that Ms. Mackris' lawyers indeed did turn over copies of the tapes, and that's what led the parties to begin serious settlement discussions.

The press release announcing the settlement undoubtedly was closely negotiated — note the use of what's apparently a defined term from the settlement document in the opening words — "The parties regret ...."  In all probability, another negotiated term of the settlement was who would make the announcement — in this case, Mr. O'Reilly's and Fox's lawyers, rather than Ms. Mackris' lawyers.  And I seriously doubt that it's mere happenstance that Ms. Mackris' lawyer didn't put out a simultaneous press release or return AP's inquiring telephone call.  Rather, it's highly likely that for the privilege of announcing the deal and controlling the spin thereon, Mr. O'Reilly and/or Fox et al. effectively paid an additional cash premium.

And there's almost no doubt that it was they, and not Ms. Mackris, who paid.  Indeed, Mr. O'Reilly's and Fox et al.'s lawyers had been arguing in the press that Ms. Mackris is broke as part of their media spin.  But the powerful implicit proof is in what else the statement says — and doesn't say.  First, focus on this extraordinary statement:

We [that is, counsel for Mr. O'Reilly and Fox et al.] now withdraw any assertion that any extortion by Ms. Mackris, Mr. Morelli, or Morelli & Associates occurred.

That, my friends, is eating crow bigtime.  That, my friends, is a settlement-mandated mitigation of damages that otherwise might continue to accrue for a defamation claim on Ms. Mackris' behalf.  Accusing someone of commiting a crime like extortion, if untrue, may be defamatory "per se" — meaning that an accusation that someone's a criminal is conclusively presumed to be injurious to his or her reputation; it may not necessarily be defamatory if, for example, it's true, but there's no dispute that it would cause members of the public to think less of the accusee.  While there's a privilege for making such accusations in court filings, that privilege may not extend to accusations that are republished by the accusers outside the courtroom.  There's no way that O'Reilly's and Fox et al.'s lawyers would have made the admission that the extortion claim was unfounded unless they were simultaneously receiving a release from Ms. Mackris that would cover her potential defamation claims as part of the overall package; and it's something they'd only give up grudgingly.  My hunch is that Ms. Mackris' counsel painted his demand for such an admission as a "deal-killer point" in the negotiations; their side might have gotten more money if they'd dropped that demand, but they were unwilling to do so.

What's also missing from the press release that one would normally expect to see is a statement to the effect that by agreeing to settle all claims of all parties, no party was admitting any liability and no party was admitting that any other party's factual allegations or claims had any validity.  That's probably exactly what the settlement documents themselves say, and it's usually something that a defendant insists on being able to say publicly.  But in the press release, there's only a weaker statement that "there was no wrongdoing whatsoever by Mr. O'Reilly, Ms. Mackris, or Ms. Mackris' counsel."  Again, my strong hunch is that Ms. Mackris and her counsel objected to any broader statement than this one, knowing that it would have been spun by Mr. O'Reilly's and Fox et al.'s lawyers as part of a "these claims were bogus but would've been expensive to litigate, blah blah" meme.

Is Kurtz' source right in speculating that Mr. O'Reilly will write the entire check, however much it is for?  I suspect he is.  As I've pointed out in my previous posts, if Fox's lawyers were correct in their claims that it has an aggressive anti-harassment policy in place and that Ms. Mackris hadn't ever complained or attempted to make use of that policy, then Mr. O'Reilly's potential liability was much, much greater than that of his codefendants.  Indeed, there was an enormous potential conflict of interest between him and all of the other defendants; it's not uncommon in such cases for the employer to initially back its employee, pending investigation, and then later to flip and essentially join the plaintiff in painting the employee as an errant rogue (while continuing to insist that the employer neither knew nor should have known of his misconduct).  It strikes me as quite likely that Fox et al. not only insisted that Mr. O'Reilly write the settlement check out of his own ample bank account, but that they insisted that he settle now, before the tapes (if they exist) hit the court files or were otherwise leaked.

As for the amount:  In my opinion, $600 million or $60 million were ridiculous figures, absent proof of physical contact.  If Kurtz' source is right and the settlement price was in the $2 million to $3 million range, however, that wouldn't surprise me.  Incredible as that amount of money is when compared, say, to Ms. Mackris' annual salary (or yours or mine), it's an amount that Mr. O'Reilly could certainly afford to pay — not "nuisance value" (because you can buy a lot of high-powered lawyer time for that kind of change), but not something that's going to put any crimps into his lifestyle.  Just think of it as history's highest-priced phone sex.

Andrea Mackris, no longer a sexual harassment lawsuit plaintiffIn an absolute sense, is it fair that Ms. Mackris get that kind of money for listening to her boss talk dirty — especially if she did little to discourage him, or possibly even set him up?  Naw, of course not.  I continue to think that there's a substantial probability that she'd have done much, much worse with a jury, even as against Mr. O'Reilly.  But in the real world in which we live — as opposed to a hypothetical, perfectly just world — the settlement value of her case was inflated by Mr. O'Reilly's identity and particular self-created vulnerability, as well as his wealth.  And Mr. O'Reilly, by settling, was buying more than just the elimination of his risks before a jury.  He bought his peace, and Ms. Mackris' silence in the future. 

And presumably he bought every existing copy of some very, very expensive tapes.  It wouldn't surprise me, in fact, if there's a penalty clause that's triggered if the tapes are ever leaked — and/or very possibly even a delayed/escrowed future partial payment contingent upon the tapes not being leaked.  That's what I'd insist upon if I were representing Mr. O'Reilly.

Even if Ms. Mackris is a gold-digger, even if she set him up, nevertheless, if Mr. O'Reilly said what he's alleged to have said and was a big enough sucker to let himself get set up that way, I have little sympathy for him.  And his temporary ratings surge notwithstanding, I'm pretty sure that he ended up paying more than he would have had to otherwise in order to settle the case because of the stupid preemptive extortion lawsuit.  Those crow feathers can't taste very good going down.


Update (Thu Oct 28 @ 9:35pm):  Here's Mr. O'Reilly's statement about the settlement from his show tonight, as reproduced on his website (the wording of which probably was also carefully negotiated and stipulated in the settlement documents):

Hi, I'm Bill O'Reilly, thanks for watching us tonight. Before we get to the talking points memo I have something very important to tell you.

All litigation has ceased in that case that has made me the object of media scorn from coast to coast.

Today lawyers issued a statement saying there was no wrongdoing in the case what-so-ever by anyone. Obviously the words "no wrongdoing" are the key.

On a personal note, this matter has caused enormous pain; but I had to protect my family and I did. Some of the media hammered me relentlessly because, as you know, I am a huge target as is FOX News. All I can say to you is please do not believe everything you hear and read.

The good news is that Factor viewers and listeners seem to have given me the benefit of any doubt when some in the media did not. You guys looked out for me and I will never forget it.

This brutal ordeal is now officially over, and I will never speak of it again.

Especially on the telephone, I'll bet.


Update (Fri Oct 29 @ 1:50am): WaPo's Howard Kurtz's report on the settlement says "Fox believed Mackris had tape recordings of the long, highly detailed conversations alleged in the suit, but Morelli never confirmed that, saying only that they had concrete evidence." 

Although I have a high opinion of Mr. Kurtz and, of course, he has access to sources that I don't, I still don't buy this suggestion at all.  It would be incredibly foolish for Mr. O'Reilly and Fox et al. to settle without absolutely, positively pinning down that subject and obtaining both whatever tapes exist and iron-clad representations that there weren't others.  Lawyer Morelli may never have confirmed publicly whether or not there were tapes, but I'd bet a hefty sum that he's done so — in meticulous detail — as part of the settlement discussions and documentation.  Indeed, part of what Mr. O'Reilly presumably bought as part of the settlement was Mr. Morelli's and his client's future silence even as to the existence of any tapes.

The New York Post has a fine headline:  "Now, $hut Up!"  It also reports:

The settlement statement did not mention the Fox News Channel, which had filed suit with O'Reilly against Mackris and was named as a defendant with O'Reilly by Mackris. That means the network was likely not involved in the deal. A spokeswoman for Fox declined comment.

I suspect that's wrong, and that the settlement documents define "the Parties" to include Fox.  Note too the closing line of the press release, which refers to "all Parties."  It's conceivable that the use of a term defined elsewhere, in fact, was a deliberate (very subtle) way to distance Fox from the PR about the settlement and keep the spotlight, so to speak, on Mr. O'Reilly.  Fox's own website republishes an updated AP story describing the press release as "saying the cases and claims had been withdrawn and all parties [note the lower-case "p"] agreed there was no wrongdoing by O'Reilly, Mackris or Mackris' lawyer Benedict Morelli."

Searching for other news accounts about the settlement, I was briefly confused by this one, headlined "O'Reilly scores twice, including OT winner."

Posted by Beldar at 08:04 PM in Law (2006 & earlier), Mainstream Media | Permalink


Other weblog posts, if any, whose authors have linked to Mackris/O'Reilly et al. litigation settles with a whisper, not a bang and sent a trackback ping are listed here:

» Playing the Lawyer Card from Who Can Really Say?

Tracked on Oct 28, 2004 8:36:19 PM

» The O'Reilly Settlement from Ed Driscoll.com

Tracked on Oct 28, 2004 9:04:25 PM

» Bill O'Reilly and Andrea Mackris To Settle Over Sexual Harrassment And Extortion Lawsuits from Diggers Realm

Tracked on Oct 29, 2004 2:45:54 AM

» BIG BAD BILL from Kitty Litter

Tracked on Oct 29, 2004 1:57:05 PM

» O'Reilly "Extortion" Suit: We Hardly Knew Ya... from A Stitch in Haste

Tracked on Oct 30, 2004 3:28:21 PM


(1) Sue Bob made the following comment | Oct 28, 2004 8:28:03 PM | Permalink

My bet is that it was for nuisance value. I just have a gut feeling about this and I could be wrong.

That said--I agree with you, Beldar, that if O'Reilly DID talk dirty--he was stupid. But, I am much more disgusted with the woman. I believe that the best antidote to men talking dirty is to be a LADY--even if you are a high-powered career woman. And LADIES don't drag things like this into public. In my career--I have fended off more than one weird situation by being a LADY about it.

And, I suggest that all Ladies learn Krav Maga in the event that dirty talk turns into groping. But, I can tell you--it will rarely get that far if you nip it in the bud early with a stiff dose of Ladylikeness.

I'm a lawyer and a woman--but don't ever get me on a jury in a case like this--I will skewer the woman.

Trial lawyers who read Beldar--take note.

(2) Beldar made the following comment | Oct 28, 2004 8:33:36 PM | Permalink

Sue Bob, I'd never, ever knowingly take any lawyer on one of my juries, regardless of his/her practice area or presumed sympathies. In fact, I've never even bothered to ask the lawyers in my prospective jury panels any questions during voir dire — I just strike 'em, because I don't want to run the risk of them saying something explosive in front of the other prospective jurors, and I figure if they want to be on the jury they'll be too smart to say anything that I could use to get them disqualified for cause. I don't want another lawyer arguing the case outside my hearing and beyond my power to object/respond after I've finished my closing argument. It's one of my few hard and fast rules of jury selection.

(3) JeremyR made the following comment | Oct 28, 2004 9:27:28 PM | Permalink

I think it helped his ratings, because I suspect a lot of people thought he was gay...

(4) alcibiades made the following comment | Oct 28, 2004 9:31:15 PM | Permalink

I agree entirely on the Krav Maga.

O'Reilly gets on my nerves because he is so full of himself.

But, geez, all she had to do was hang up. The beauty of phone sex is if you are not interested you can disconnect. I don't believe for a second that she was "too imtimidated" to do so. For one thing, O'Reilly's way too narcissistic to lose any peace of mind by a rebuff like that. Hopefully, this lawsuit sobered him up enough to make him think next time.

Wonder what wifie's thinking just about now. Too bad she doesn't know krav maga either. That's what he really deserves And from his wife.

(5) PDS made the following comment | Oct 28, 2004 9:32:09 PM | Permalink

Interesting comments, Beldar. I am an employment defense lawyer--not a litigator, but a trial lawyer, to use your apt distinction--and I agree with most of your analysis. Do you really think discovery had begun, however? I don't think they were at that stage yet. I agree with you that the tapes undoubtedly exist. Tapes don't lie, they don't lose their memory, and they always bite somebody in the arse, no?

(6) Beldar made the following comment | Oct 28, 2004 9:53:06 PM | Permalink

PDS, I've read somewhere (but haven't found the link to it again) that O'Reilly's and Fox et al.'s lawyers had formally demanded the production of any and all tapes. Obviously if they existed, they were "discoverable" — that is, Ms. Mackris' lawyers would have had no choice but to eventually turn them (or copies of them) over. I don't know whether they got a court order shortening Ms. Mackris' normal response time to the formal demands or whether her counsel simply agreed to produce them before the deadline. But I'm quite sure the defendants wouldn't have paid without having heard them. And if I'd been advising them, for reasons I blogged about at more length in my two original posts linked above, I'd have insisted that they not say anything in the press besides "we intend to vigorously investigate and defend against these charges, and otherwise have no comment" — much less file the preemptive lawsuit — until they had. The crow feathers, in other words, are of Mr. O'Reilly's own making, and his counsel should have seen them coming.

(7) scott made the following comment | Oct 28, 2004 10:19:21 PM | Permalink

I notice that Mr. O'Reilly expects the viewing public to extend him the same courtesy that he himself did not extend to priests accused of harrassment and/or pederasty. He has lost all credibility with me forever.

(8) Whitehall made the following comment | Oct 28, 2004 10:22:17 PM | Permalink

Wait a minute! Doesn't he have a right to know if his telephone conversations are taped before and while they are being recorded? If he got a bit raunchy understanding that he was taped, then stupid him. On the other hand, if he knew not that she was taping the conversation, isn't she also at fault for some violation?

(9) Beldar made the following comment | Oct 28, 2004 10:28:51 PM | Permalink

Whitehall, the last time I checked, under federal law that covers interstate calls, and under most (but not all) state laws governing intrastate calls, as long as one party consents, a call can be legally taped. That one party can be the one who's doing the taping, even secretly. Some states have made taping illegal unless both parties know and consent (my recollection off the top of my head is that California and Maryland are a couple of examples). So the legality depends on where the parties to the call are when it's made. And even if taping the call violated a state statute, that doesn't necessarily mean they'd be inadmissible in a civil lawsuit.

(There may also be special rules for some types of participants and some situations. For example, Texas' rules governing lawyer ethics forbid me to tape a call without consent, and even if my client could legally and ethically do so, I can't ask him to do so in order to avoid my ethical prohibition.)

(10) Ms. Honor Blackman made the following comment | Oct 28, 2004 10:32:51 PM | Permalink

Yes, Dearie, I believe this was Mr. O's own doing. However, having been around the block 6 or 7 million times with comments and risque talk from my employers (I'm more than a full figured girl) I've learned to take it with a grain of salt. I just turn the tables on Tom, Dick, or Jerry and they scamper off. However, a girl does like to get noticed, doesn't she? Enjoyed your blog.

Ms. Honor Blackman (Bond Babe)

(11) Professor Sex made the following comment | Oct 28, 2004 10:35:11 PM | Permalink


I highly doubt that you have litigated many sex harassment cases. It's hornbook law that an individual employee-harasser cannot be liable under Title VII, only the employer can be liable. Thus, the purported conflict-of-interest you speak of cannot be that common. Perhaps there were state law claims that would put O'Reilly on the hook, and Fox would be well within its rights to make O'Reilly pay, because it was his actions that exposed them to the liability, but this so-called conflict you speak of is just plain wrong.

Professor Sex

(12) Beldar made the following comment | Oct 28, 2004 10:43:37 PM | Permalink

Prof, you might start by reading Ms. Mackris' complaint, which I've linked. You obviously haven't. (Here's a hint: it's pending in New York state court, not federal court.)

It would be the rare complaint which did not allege multiple, overlapping causes of action, sometimes under both state and federal law — I've handled roughly 20 of these cases from one side or the other, and have seen that in every case that's gone to court proceedings. I haven't tried one of these to a jury verdict (although I have handled a few to decisions by administrative law judges or settlements in the middle of such hearings), and I don't claim to be an expert in these cases in particular. But I wouldn't blog about it unless I was reasonably confident that I know whereof I speak, and here I'm at least that confident.

So yes, having handled such cases — and having written for and lectured in state-wide continuing legal education programs on legal ethics and conflicts of interest in particular — I'm quite confident that there quite often is a huge potential conflict between employee and employer in these cases. (Whether it ripens into an actual conflict, as I've said, often depends on the factual investigation; and conflicts can be and often are waived for tactical and/or economic reasons.)

I go to considerable lengths to disclose such conflicts and obtain waivers of such conflicts, preferably in writing, before ever accepting joint representation of both an employer and employee, and also am careful to make such disclosures when I'm questioning an employee (who may assume I'm also representing him) when I'm only retained by the employer. Any lawyer who tells you there's no potential conflict in these cases is talking through his hat and asking for a malpractice lawsuit (failure to disclose conflicts being an increasingly popular basis for legal malpractice claims).

(13) dennisw made the following comment | Oct 28, 2004 10:52:04 PM | Permalink


Laws state by state on taping phone calls etc.

(14) dennisw made the following comment | Oct 28, 2004 10:55:51 PM | Permalink

12 states require, under most circumstances, the consent of all parties to a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.


(15) Geek, Esq. made the following comment | Oct 28, 2004 11:06:02 PM | Permalink

Excellent analysis, Beldar.

Being a legal realist in my current cynical mood, I would posit that this was nothing more than a commercial transaction.

Both lawsuits were mere posturing over the final purchase price of the tapes.

I do feel a tinge of regret that the deal didn't fall through, though.

(16) Rose made the following comment | Oct 28, 2004 11:10:15 PM | Permalink

Beldar, you said "Mr. O'Reilly, by settling, was buying more than just the elimination of his risks before a jury. He bought his peace. . ."

This comes dangerously close to the philosophy behind the appeasement of terrorism -- and Ms. Mackris' suit is in my opinion very little more than legal terrorism. That the "wrong" done to her, even stipulating every word in her complaint, should rise to the level of $2 million is a travesty.

I imagine an ordinary plaintiff with an ordinary defendant might collect such damages if he was a young man who lost a foot due to unsafe working conditions, or a man deprived of his young (childless) wife in a private plane crash after the pilot fell asleep, or a man whose nuts were fondled repeatedly by a parish priest when he was 12. But having your boss leer at you? Without any hint of a job-security quid pro quo? And you a high-powered grown career woman with zero difficulty in finding another job? I am nauseated at the idea that this could even be placed in the same class of wrong-doing.

Of course as a lawyer you must give such advice, and a smart client will take it and be grateful.

But it's repugnant none the less.

(17) Pavel made the following comment | Oct 28, 2004 11:11:42 PM | Permalink

I think you're right, Beldar. There'd be no need to accelerate discovery. I suspect the plaintiff's lawyers just turned over one or two of the less juicy tapes to get the Fox guys weak in the knees, and then said, "We've got the REALLY good ones in our safe. You know, the ones with the sound of O'Reilly whackin' it in the background?"

Wouldn't you if you were the plaintiff's lawyer on this? The only question from the defendants at that point would be, "How many zeroes do I put on the end of this check?"

I mean, duh.

(18) PDS made the following comment | Oct 28, 2004 11:40:53 PM | Permalink

Regarding individual liability, Beldar is correct; even though Title VII doesn't allow for individual liability, many state laws do, as do several (not applicable here) federal laws, such as the FMLA and FLSA. The conflict issue is also a real one, although in my experience (several hundred such cases) it is the rare corporate defendant that is willing to turn on the accused manager. The first question most of my clients want to know is: can I sue her/him back? I tell them, unfortunately, no. I think O'Reilly now knows why I give that answer.

(19) Jamison Banks made the following comment | Oct 28, 2004 11:58:12 PM | Permalink

This is why I can't stand O'Rielly - he's an idiot. He was an idiot when he interviewed Michael Moore, he was an a COMPLETE idiot for towing the middle road between both parties, just to be middle-of-the-road-I-favor-nobody, and this just takes the cake. Getting setup by someone, what, 15-25 years his junior?

That said, can anyone imagine what skeletons Rush Limbaugh has (doctor shopping aside)? The thought is simply too caustic. Both men have egos the size of the Hindenburg, but at least Rush has a brain and some partial use of logic. The man must have one heckuva prenup. Must also be why after 15 years he's still not been taken down by the Dems. Too bad O'Rielly's going to continue on with the ratings he's got (CNN and MSNBC still haven't finished eating their hearts out yet). Can't we find someone else to tune into at Fox?

(20) Ann_Observer made the following comment | Oct 29, 2004 12:05:10 AM | Permalink

Solid analysis, Beldar.

After reading the Mackris complaint on the evening the O'Reilly story broke, I posted this over at Little Green Footballs:

Repressed sexual urges usually come out (so to speak) in one way or another:

(1) Porn star Jenna Jameson has said that after O'Reilly interviewed her, the first thing he did was ask her to send him some of her videos. Jenna is known for her forthrightness and brutal honesty; I believe her.

(2) A few weeks ago, I heard O'Reilly complain on the air about not being able to go to adult bookstores and strip-clubs because he has to insulate himself from criticisms of his character. At the time, it sounded to me as if he resented not being able to go to adult bookstores and strip-clubs.

In light of these facts, I'd say that the details in Ms. Mackris' complaint fit the pattern. Perhaps she didn't do enough to discourage the behavior, but, even so, it sounds as if O'Reilly went over the line more than once.

Prediction: the case goes away after a large sum of money flows into Ms. Mackris' bank account.

Case closed.

(21) Beldar made the following comment | Oct 29, 2004 12:27:48 AM | Permalink

Just a quick addition to PDS' most recent comment: Another reason there's a potential conflict between employer and accused-employee is that if the accuser's allegations pan out, even in part, there may well be a firing or disciplinary action in the future. Also, even if the accusations don't pan out (or the employer is still not buying them), the accused-employee's entire employment status — promotions, succeptibility to layoffs, etc. — may end up being affected by the pendency of the litigation. "Did you get that promotion and raise as a payoff for protecting the company in this case?" is one line of cross-examination. If the accused employee is fired or simply disgruntled, he may also have a motivation to cooperate with the accuser. There's just a whole mess of potential conflicts, above and beyond the question of direct or derivative liability.

(22) jimbo made the following comment | Oct 29, 2004 12:34:06 AM | Permalink

all you lawyers suck.

(23) AST made the following comment | Oct 29, 2004 12:34:11 AM | Permalink

It always boggles my mind how much money is just sloshing around in this country. I hope this was settled for nuisance value, but what's a nuisance for O'Reilly is probably enough for someone like me to retire on.

I'm a lawyer, too, but I have an unfortunate disability for an attorney. I never could quite believe that my time was worth that much, and especially not when it's a third or half of a settlement.

Law School destroyed whatever feelings of competence I had, and they didn't have any classes on greed or "why you deserve to get rich from other peoples' misery."

I think that talking dirty on the phone is offensive and boorish, but I don't see it as meeting the threshhold for harassment. I agree with the comments above about how she should have handled it. Women shouldn't have to put up with stuff like this, but didn't Gloria Steinem herself say that there has to be knowledge that the behavior is offensive? Or was it just that ever MCP gets one free grope?

There has to be some amount of response expected to put a normal boorish slob in his place before you start trying to cash in.

(24) Michael Hertzberg made the following comment | Oct 29, 2004 6:14:35 AM | Permalink

I don't agree that the formulation "all Parties have agreed that there was no wrongdoing" is weaker than the usual "defendant does not admit any violation" language. "Does not admit" is the typical kind of defensive weasel-wording that everyone knows does not mean we're agreeing he didn't do it -- just that he doesn't admit he did it. (I say this as a former defense lawyer who has negotiated scores of these settlements.) In this case, for example, not only does O'Reilly continue to deny he did anything wrong, but Mackris actually admits that he didn't do anything wrong. And vice-versa. I'd say that was much stronger than "does not admit."

(25) spongeworthy made the following comment | Oct 29, 2004 8:00:21 AM | Permalink

Believe it or not, and I could be mistaken here, but I don't think even New York State law would hold the employee liable. What gets you in New York City is the City's Human Rights law. The rules are different but the dirt still gets out. You're just as likely to screw a settlement out of a co-worker in that venue as any other.

(26) ed made the following comment | Oct 29, 2004 9:11:36 AM | Permalink


Ok, here's a question then.

In Illinois the candidate for the open Senate seat, Mr. Ryan, had his *sealed* divorce court documents unsealed and opened for public viewing by a judge.

Could that happen to O'Reilly? He is a notable public figure and it could be argued that, as in the Ryan case, that the public as a right to know about the character of a person of Mr. O'Reilly's stature.

And if this becomes the norm, would out-of-court sealed settlements be abandoned in the future?

(27) Buck made the following comment | Oct 29, 2004 9:17:37 AM | Permalink

I don't suppose you might allow for the possibility that the reason they don't obtain whatever tapes exist might be because they know they DON'T exist. If he never did what she is alledging, then he knows there are no tapes.

(28) Beldar made the following comment | Oct 29, 2004 9:25:39 AM | Permalink

Commenter Michael Hertzberg makes a very fair point above.

My hunch is that in the end-stages of negotiating the language of the press release, after they'd already agreed to the language specifically exonerating Ms. Mackris and her counsel from the extortion charge, Mr. O'Reilly's and Fox et al.'s lawyers said, "Well, hey, if we're going to say 'there was no wrongdoing whatsoever' by you guys, you ought to say that about us, too," and the reaction of Ms. Mackris and her lawyers was, "Yeah, right. Whatever." (As in, nobody could possibly believe that, and hence it would be less significant to them than the standard "no admission of liability" language.) Superficially, "no wrongdoing whatsoever" looks stronger. But is anyone going to believe that this was all an innocent misunderstanding and a walk-away deal?

(29) Beldar made the following comment | Oct 29, 2004 9:30:38 AM | Permalink

Ed, that's actually a topic on my "in progress" list, albeit from a slightly different angle. I don't know whether the O'Reilly/Mackris litigation includes a court sealing order or not; it may well not, if nothing more inflammatory than the two original complaints ever made its way into the respectives courts' files. If not, then another thing Mr. O'Reilly (and, perhaps, Fox et al.) bought with their settlement bucks by settling early was the chance to avoid running the risk that such an order would be refused, or later dissolved, after damaging documents became part of the courts' official records.

Buck, that's a fair point. And of course, in my theory (which is only that, a theory), part of what Mr. O'Reilly was paying for was the opportunity to continue to posit that very thing in public. But my very strong gut hunch is that if O'Reilly, Fox et al. had learned that there were in fact no tapes, they'd have insisted on fighting the litigation, rather than settling. Their odds of being able to discredit Ms. Mackris' testimony, if unsupported by tapes, looked to be quite promising.

Jimbo: So stipulated. (At least some of us can find the shift key on our keyboards, however.)

(30) cottus made the following comment | Oct 29, 2004 9:47:10 AM | Permalink

Real nice, Beldar - Insipid peanuts like Instapundit keeps posting,
and the new twit from U of W, Ms. Althaus seek to control the new forum.
But the peasantry is jarringly reminded once again of a serious
mal - allocation of economic resources. The resentment
and hatred grows. More and more young minds of talent
turn from things that advance mankind to your kind of (inset suitable derogatory term here).
You have a nice day, lawyer. You know the famous quote from Shakespeare.

(31) ronbo made the following comment | Oct 29, 2004 9:48:21 AM | Permalink

Solid analysis, Beldar.

You may be right about discovery having begun. IIRC, discovery can start very early in NY (don't have CPLR cite).

(32) Geek, Esq. made the following comment | Oct 29, 2004 9:50:30 AM | Permalink


Please tell me you're not a liberal. If you are, I'm going to be deeply embarrassed.

(33) Noah Nehm made the following comment | Oct 29, 2004 10:45:59 AM | Permalink

Mackris taped conversations unbeknownst to O'Rielly? Wasn't Linda Tripp excoriated - and threatened with jail time - for doing the same?

(34) anotherlawyer made the following comment | Oct 29, 2004 11:31:40 AM | Permalink

Interesting discussion that makes little sense to me. If the tapes exist, they are worth a lot more than 2 million dollars to O'Reilly. The value has nothing to do with the legal strength of the case. The value has everything to do with the denials, countersuit and air time O'Reilly has spent denying the allegations. He would be labeled a liar and, worst for him, the conservative version of Bill Clinton on every talk show, news program and liberal circle in the country. His only defense would be that she was better looking than Monica.

(35) llbillman made the following comment | Oct 29, 2004 11:38:06 AM | Permalink

Thanks for the very professional info. Bill should have hired you!

(36) Milton made the following comment | Oct 29, 2004 12:10:41 PM | Permalink

Great analysis, Beldar.

For the record, krav maga is great stuff.

(37) Randall made the following comment | Oct 29, 2004 12:58:37 PM | Permalink

All legal analysis aside, would it not be safe to say that the tapes exist but that the tapes clearly show that Mackris was a willing participant (setting O'Reilly up?). Because if the tapes showed actual harassment, it would seem that she could get a lot more than 2-3 million, and if she truly felt wronged by O'Reilly, he certainly would've been more stung by a court case.

(38) PDS made the following comment | Oct 29, 2004 2:33:53 PM | Permalink

These situations take on a life of their own, especially during settlement negotiations. Rational analysis--although not completely irrelevant--cannot explain all that went on. One hypothetical example: if one of the parties made a conciliatory gesture during the negotiations, the other may have folded for much less than we would think.

For all the lawyer haters out there--talk to your Congressman. Sexual harassment laws are a product of statutory law. Statutory laws can be repealed or amended or narrowed. Instead of whining about lawyers, whine to your Congressman, run for Congress, or do something constructive.

(39) Beldar made the following comment | Oct 29, 2004 3:21:41 PM | Permalink

Randall, that's a good question. Even if there are tapes authenticating the purported quotes from Mr. O'Reilly that are in Ms. Mackris' complaint, such statements might not make out a sexual harassment (or related torts) case if, indeed, they showed that the statements were welcomed. And even if the tapes don't show that the statements were welcomed, they wouldn't necessarily be inconsistent with the proposition that by her other statements that weren't recorded, Ms. Mackris gave Mr. O'Reilly a reasonable basis to believe that they were welcome. In other words, neither her failure to protest, nor her failure to invite, on the tapes would necessarily be conclusive. But what the tapes (if they exist and are authenticated, i.e., not faked) would prove was that at some point, Mr. O'Reilly made the statements in the purported quotes, and that alone would take the case beyond the "swearing match" common to these types of cases over whether the allegedly harassing conduct (whether welcomed or not) actually occurred. I've got more speculation about all this in my second post about this case, but stress that it (like this post) is indeed speculation.

(40) Randall made the following comment | Oct 29, 2004 3:22:51 PM | Permalink

My only point in this is that if I personally were in a situation where I felt I was egregiously mistreated, proving that to the public would be much more important to me than any monetary consideration.

In this instance, Mackris was already in the public eye, was interviewed on TV, etc. I don't think getting this settled quickly so she could avoid scrutiny was really a huge issue. Obviously, neither were legal fees.

If you believe that O'Reilly is the kind of person who would fight to the death if he was being wronged, which I do, then it is obvious that he did something inappropriate. He has a deep enough bank account to go to court day and night if he wanted. He and Mackris probably had consensual phone sex (what an age we live in) and he's just paying her to avoid further embarassment.

I'm sure some of you think this is oversimplification. If someone can humor me and offer hypotheticals, please do.

(41) Beldar made the following comment | Oct 29, 2004 3:39:36 PM | Permalink

Noah Nehm, you're right about Linda Tripp, but she was making the calls, IIRC, from Maryland (which is the reason I happened to remember that it's one of the minority of states whose laws require consent of all parties before taping phone calls). And again, even if taped in violation of local state criminal law, that wouldn't necessarily make them inadmissible in a civil lawsuit, especially if used for impeachment (if Mr. O'Reilly denied or quibbled about having made the statements in his own testimony).

(42) defenselawyer made the following comment | Oct 29, 2004 6:33:30 PM | Permalink


Proof positive that the concept of "actual damages" has been pitched over the side in favor of "jury anger" as the standard for verdicts today.

(43) Becky made the following comment | Oct 30, 2004 12:24:22 AM | Permalink

While I agree with the early post to "act like a lady" & you will avoid these harrassment problems -- that doesn't mean your job is secure aftwerwards. I lost an advertising job after a new Director was hired & I didn't cooperate with his dirty joke about me at a dinner table with my female boss (directly under him) & his female Marketing underling (lateral to me) there. I had to quit before he could drum up enough dirt on me to get me fired (I had nothing but kudos & raises in my 2-1/2 yrs with the co, or he would have let me go much sooner).

It is possible that is why Mackris went to CNN -- really hated it -- went back to FOX but wanted the dirty talk to stop. She obviously didn't know how to handle herself -- neither did my boss & coworker. My boss ended up demoted after I left & the other one went straight to HR & was given a package to leave that afternoon. Appeasement didn't work & lawsuits follow you around like a bankcruptcy when you try to stay in your field in the same town. I started my own business.

(44) Beldar made the following comment | Oct 30, 2004 1:20:49 AM | Permalink

I doubt that there was any insurance coverage triggered by this case. Nor, typically, is there in such cases unless they also are pleaded to include negligence or defamation claims (which are generally included within coverage from the typical business' commercial general liability policy or, in the case of individuals, typical homeowners' policy). Even if the pleaded claims include something that's covered, the insurance company is likely to defend, if at all, under a "reservation of rights" letter and to be quite stingy in offering to contribute to a settlement. My strong hunch is that no insurance was involved in the settlement of the Mackris/O'Reilly litigation.

(45) disgruntled O' Reilly fan made the following comment | Oct 31, 2004 12:02:21 PM | Permalink

[Comment deleted for extreme profanity — Beldar.]

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