O’Reilly harassment case: will it discourage excesses of harassment litigation as much as Thomas/ Hill hearings encouraged them?

Normally I don’t write about cases that have not been ruled upon by courts. Anyone can make outrageous allegations and file a complaint seeking millions in damages, and it’s unfair to spread unproven rumors about a business by publicizing mere allegations about its treatment of employees. That’s my basic editorial policy.

I’m making an exception for the Bill O’Reilly harassment case because I think it may have some valuable lessons and because it could signal a turning point in the politics of harassment litigation. (By the way, if you don’t know who Bill O’Reilly is, he’s a conservative FoxTV and radio commentator, who can be quite sharp-tongued, and sometimes witty — based on my very limited listening)

By now most readers have probably heard the basic story. After a summary from news sources, I’ll try to go a bit deeper, including links to several fascinating original documents from the case (thanks to thesmokinggun.com )

Start with the basics from a few news reports.

Associated Press 10/14/2004: “Producer Alleges Fox News’ O’Reilly Forced Her Into Phone Sex” (by David Bauder)

A Fox News Channel producer [Andrea Mackris] sued Bill O’Reilly for sexual harassment . . . , alleging her boss [O'Reilly] had phone sex with her against her wishes three times.

[Allegedly] O’Reilly suggested she buy a vibrator and was clearly excited. Before hanging up . . . O’Reilly told her: “I appreciate the fun phone call.”

She contended he made a similar call Sept. 21, ending that one by saying: “Next time you’ll come up to my hotel room and we’ll make this happen.” . . .

Hold it right there, Missy. Are you saying you couldn’t hang up on him? Afraid he’d fire you? Report him through proper channels. They won’t do anything because he’s such a star? Try them.

Facetiousness aside, I do understand that the fear of the boss’s power and potential retaliation can be so great as to turn a very bright women (or man) into such jello that they won’t even say “I’m not interested in continuing this conversation. See ya at work tomorrow morning.” And hanging up.

Fox filed a countersuit, saying the complaint was a politically motivated extortion attempt. . .

O’Reilly’s lawyer, Ronald Green, said he believes there are tapes of conversations between the two and asked a court to compel Mackris to produce them so they could be played publicly. . . .

O’Reilly is Fox News Channel’s leading personality, and “The O’Reilly Factor” is the highest-rated program on cable news. . . .

It can be really tough to decide how to handle responding to a harassment complaint against a particularly valuable or highly placed employee. But remember, he’s still an employee, and you don’t have to fire him, just put the fear of God in him. Nobody wants “fired for sexual harassment” on their record, no matter how good they are.

Morelli [Mackris's attorney] said his political contributions [Democratic] had nothing to do with the case. “When he sued me today, I understood what kind of bully he is,” the lawyer said.

Pot calling the kettle black!

Mackris never complained to anyone at Fox about untoward behavior by O’Reilly, Green said.

One of two critical facts that prove she just plain didn’t have a case that could get past summary judgment, at least not under federal law — let alone a $60 million or $600 million case (see below)

On his show Wednesday, O’Reilly called the case “the single most evil thing I have ever experienced, and I’ve seen a lot. But these people picked the wrong guy.”

Subsequent events suggest he may have been right about them picking the wrong guy. He showed them how to fight back, in what could become a roadmap for defending other harassment cases!

New York Daily News 10/14/04: “‘It’s all ‘blood money,’ he sez of $60M suit” (by David Epstein)

In the world according to Bill O’Reilly, it all started with a threat that came out of seemingly nowhere

He says he treated his associate producer Andrea Mackris well - and even gave her a hefty raise [the quid pro quo?]. But according to a lawsuit filed yesterday by O’Reilly, she expressed her gratitude with an ultimatum: Fork over $60 million or kiss your reputation goodbye. . . .

O’Reilly’s camp is sure her alleged shakedown attempt and subsequent lawsuit are motivated by greed and politics.

His suit claims that Benedict Morelli, Mackris’ lawyer and a Democratic contributor, sees O’Reilly and Fox as Republican supporters and “would like nothing more than to embarrass and tarnish the reputation of Fox and O’Reilly.”

When Morelli first delivered the ultimatum, on Sept. 29, according to O’Reilly’s suit, the request was for $600 million. That figure later was lowered to $60 million . . . if O’Reilly wanted to avoid the threatened “well-publicized lawsuit,” the talk show host claims.

IMHO there has never been a single-plaintiff sexual harassment case worth even $6 mil. in settlement, let alone $60 mil. or $600 mil.

O’Reilly’s suit notes that Mackris’ complaint “consists solely of alleged inappropriate verbal comments,” and that she admitted O’Reilly never touched her inappropriately. . . .

This is the second factor that shows how totally out of whack the settlement demand is.

I think we’re finally turning the corner towards recognition of the dangers of liability based on mere speech, no matter how crude or offensive. Based on decisions I have read, I can definitely see some courts reading her whole litany and concluding it does not measure up to “severe and pervasive.” (Count among them the 7th and 8th Circuits (US Court of Appeals), which I follow quite closely.)

According to O’Reilly’s suit, “Their demand is blackmail, pure and simple.”

Now let’s look at the original documents.



Mackris’s lawyer’s demand letter

So, what do you do when you get a letter like this?

I’d say treat it just like an internal complaint. Meet with the employee and the attorney (the employee may not have a right to have him/her there, but why fight over that?). Get the story. Tell them you’ll investigate and get back to them. In the meantime, the employee will enjoy a paid leave of absence.

Do not negotiate about a settlement. There’s no basis for that until you know what you’re dealing with.

Now, to complete the role play.

Say you’re an attorney and the woman comes to you. Do you write a letter like this?

Not if you want to do what’s in your client’s best interest. Instead, you encourage her to make an internal complaint through proper channels.

Less likely to generate a juicy cash settlement so you can collect a big contingent fee?

Not necessarily. The company might screw up and not respond appropriately, or even retaliate against your client. If not, you’ve helped your client keep her job, improved the workplace environment for her and others, and acted in the interests of justice. Isn’t that why you became a lawyer?

Mackris Complaint

Admit it, you really want to read about the juicy allegations.

Here, courtesy of thesmokinggun.com are links to the best spots: O’Reilly’s [alleged] Caribbean shower fantasies, [alleged] O’Reilly comments about a Thailand sex show, and the [alleged] climax of one August 2004 phone conversation.

Seriously, if you’re really interested in harassment law (I am), you’ll want to skim the entire complaint and then see how artfully O’Reilly’s attorneys tore it apart in their suit.

O’Reilly Complaint

Very nicely written, this details all the fatal deficiencies in the allegations, as well as the alleged improper motivation underlying the complaint. Read it.

First Count: Attempted Extortion

As I understand it, the claim is that the huge disproportion between the amount demanded and the actual value of the case establishes extortion, as opposed to an attempt to settle legitimate legal differences. I’ve always been vague about where the line is drawn between seeking a settlement and extorting one. Perhaps this is a good example of a plaintiff’s attorney quite clearly crossing the line.

Second Count: Intentional Interference With Prospective Business Relations (with advertisers, viewers, etc.)

Third count: Prima Facie Tort

Fourth Count: Intentional Interference With Prospective Business Relations (with Fox)

Fifth Count: Intentional Infliction of Emotional Distress

These last 4 causes of action are always tough to prove and usually thrown in to make the complaint longer and thus more intimidating, in my experience.

Now the anticlimax.

We now know how the story ended — but not really.

This hit the press the other day: STATEMENT FROM RONALD GREEN, EPSTEIN BECKER & GREEN, P.C. [O'Reilly's attorney]

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.

And this is what O’Reilly said on the air:

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.

So, you’ve made it with me this far, interested reader, and you probably wonder what I think happened.

Well I sure wonder what the settlement terms were. If they were that no money changes hands and both suits are dropped, it would be wonderful. But don’t let that “no wrongdoing” fool you. That’s basically a standard term of agreement that defendants get as a quid pro quo for coughing up the green stuff.

O’Reilly’s audience apparently grew as a result of the publicity:

Despite the lurid nature of the case, publicity surrounding the dispute did not seem to hurt O’Reilly’s following. His show has drawn consistently higher ratings since the scandal broke. Monday night’s telecast was watched by 3.7 million viewers, one of the program’s biggest audiences ever, according to Nielsen Media Research.

A small percentage increase in audience is worth tons of money, so my guess is that money’s changing hands and Ms. Mackris will never work for Fox or any related company again — the latter point also a standard settlement term employment defendants typically insist on, and have to pay money to get. (A tough deal for a TV producer in this era of media concentration.) That’s strictly speculation; we’ll never know.

But the fact it’s over so soon suggests the tough tactics of O’Reilly’s attorneys had an impact and may be emulated in appropriate cases.

Circumstances also suggest there was a quick settlement before the tapes were disclosed — to forestall the impact of their disclosure, which might not be so rosey for audience share.

The verbatim-style quoting in the complaint, complete with “[sic]” when O’Reilly used the wrong word, indicates she likely had tapes. They were probably not entirely innocuous, either, or she wouldn’t have made the allegations so specifically.

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