Grabbing the Headlines

For practicing lawyers, a key element of the case was Fox's and O'Reilly's decision to initiate what may be termed a pre-emptive strike. When settlement discussions collapsed — when, as Fox and O'Reilly's lawyers put it, it became evident that Ms. Mackris' strategy was not to reach an amicable settlement, but rather to blackmail them — they threw the first punch. They sued Ms. Mackris for civil extortion, defamation, intentional infliction with business relations, and other torts. Fox and O'Reilly claimed that Ms. Mackris' settlement proposals were in reality an unlawful effort to shake them down for a sum that far exceeded, by any reasonable measure, the value of her claims. Fox and O'Reilly alleged that Ms. Mackris and her counsel had demanded $60 million, and that they never wavered from this demand. As the demand was on its face unreasonable and unconscionably high, bearing no relation to any realistic measure of damages on the part of Ms. Mackris, it was, alleged the plaintiffs, extortionate.

They also claimed that the timing of Ms.Mackris' demands, ie, in a Presidential election year, was not coincidental. They alleged that Ms. Mackris' lawyer was active in the Democratic Party, and that the idea was to embarrass Fox and O'Reilly, whose political leanings are not a secret. Thus, Fox and O'Reilly asserted, Ms. Mackris and her lawyer made their claims, not to right a legitimate wrong, but to pressure them into an exorbitant payoff so as to avoid embarrassment in an election year.

The complaint also alleged that Ms. Mackris was unlawfully motivated by a desire to interfere with O'Reilly's book contracts and other business affairs, and so to injure him personally. This, asserted Fox and O'Reilly, constituted tortious interference with business relations. Of course, the press seized upon Fox's and O'Reilly's complaint. Rivers of ink described the lawsuit and the soon-disclosed sordid allegations in Ms. Mackris' countersuit, which purported to recount detailed, sexually explicit conversations between Ms. Mackris and O'Reilly. Ms. Mackris alleged that O'Reilly initiated these conversations, and that they were unwelcome and unlawful. She asserted (and her lawyer repeated in various television interviews) that, as a subordinate to O'Reilly, she was trapped and could not meaningfully complain about his conduct, given his position of great power at the network. Fox, for its part, pointed to e-mails that Ms. Mackris sent to her former CNN colleagues when she accepted O'Reilly's invitation to return to Fox, exclaiming how happy she was.

End of the Suit

Within a few short weeks, all claims were settled. (While the terms of the settlement were confidential, news reports suggested that Ms. Mackris received several million dollars to withdraw her counterclaims.) The parties issued public statements that barely acknowledged the media frenzy that their dispute had set off. On his television program, O'Reilly asserted, “On a personal note, this matter has caused enormous pain, but I had to protect my family and I did … This brutal ordeal is now officially over, and I will never speak of it again.”

On the Charlie Rose public television program (in an interview that had been previously scheduled to promote his new book), O'Reilly asserted that he had done nothing wrong, and he cautioned that any celebrity's good name was at risk of similar attack — perhaps suggesting that even the staid and professorial Rose could be the next victim.

Analysis

What is to be made of Mr. O'Reilly and Fox's lawsuit against their accuser before she was to go public with her own claims? The decision seems to have been purely tactical — and quite effective. The calculation, one may surmise, was that since

Ms. Mackris' accusations would inevitably become public, Fox and O'Reilly would be better served by disclosing them first. No strangers to the media, they presented the allegations in appropriate context, asserting that the claims of sexual harassment were meritless, and that Ms. Mackris was a gold-digger and blackmailer.

O'Reilly and Fox even sued Ms. Mackris' attorney, accusing him of conduct that went well outside the bounds of appropriately zealous advocacy. What would a court have made of these claims? We will never know, of course. However, it is fair to assume that none of the parties expected that the case would ever go before a jury. Commentators have suggested that the tactic of demanding a settlement that far exceeds the actual value of a party's claims is commonplace. It happens every day — it may occur every minute of every day. Nevertheless, courts have recognized that there is a line beyond which lawyers should not go in making demands for settlement.

Flatley v. Mauro 1

Recently, for example, in Flatley v. Mauro 1, a California court refused to dismiss a claim for extortion brought against an attorney who allegedly threatened not only civil prosecution and media exposure, but also criminal prosecution and publication of defamatory measures as a means of obtaining leverage in a proposed sexual harassment civil action. Fox and O'Reilly have not shied away from aggressive legal tactics in the past. Witness their lawsuit against Al Franken for allegedly misappropriating Fox's and O'Reilly's likenesses in promoting his book. While Judge Denny Chin of the U.S. District Court for the Southern District of New York dismissed the lawsuit, Fox sent a strong message that it will aggressively protect its rights.

It is impossible to know whether the settlement value of Ms. Mackris' claim was affected by the pre-emptive lawsuit, but that may be beside the point. The reaction among employers to Fox's and Mr. O'Reilly's aggressive posture has been quietly positive. Companies and individuals accused of racism, sexism, and worse in lawsuits that may subsequently be dismissed or resolved for nuisance value have regarded these lawsuits as part of the cost of doing business. Much to their frustration, employees (whether at a managerial level or not) who are wrongfully accused of misconduct are often urged to turn the other cheek.

Of course, employers must investigate and eliminate unlawful conduct in the workplace. The right of employees to be free of harassment or discrimination must remain inviolate. Employers should not tolerate such conduct, regardless of who carries it out. Employers and those who represent them must consider the possible reaction of the judge and the prospective jury, as well as that of third parties, especially employees and customers. But Fox's and O'Reilly's lawsuit may indicate the turning of the tide, and a new willingness to confront unfounded claims aggressively.

No sexual harassment case has received as much attention in the press recently as the one brought against Fox News and television host Bill O'Reilly by former Fox producer Andrea Mackris. This case grabbed the headlines with almost as much fervor as did Anita Hill's claims against then-U.S. Supreme Court Justice nominee Clarence Thomas in 1994, which had previously been the most notorious of sexual harassment claims.

The Mackris/O'Reilly case has frequently been compared with the Hill/Thomas case — not only because of the cases' relative notoriety, but also because they involve similar allegations: that a subordinate employee was subject to verbal harassment. Ms. Mackris, like Ms. Hill, excelled in her job. And, like Ms. Hill, she was given significant opportunities for plum assignments — by her alleged harasser. Among other things, Ms. Mackris interviewed Senator Hillary Rodham Clinton at the 2004 Democratic National Convention. Ms. Mackris even appears to have accepted O'Reilly's entreaties to return to Fox after she had resigned and gone to CNN. She did this notwithstanding O'Reilly' allegedly harassing conduct, which began, she claimed, even before she left Fox for CNN, and continued after she returned.

What It Means to Attorneys

For practicing lawyers, a key element of the case was Fox's and O'Reilly's decision to initiate what may be termed a pre-emptive strike. When settlement discussions collapsed — when, as Fox and O'Reilly's lawyers put it, it became evident that Ms. Mackris' strategy was not to reach an amicable settlement, but rather to blackmail them — they threw the first punch. They sued Ms. Mackris for civil extortion, defamation, intentional infliction with business relations, and other torts. Fox and O'Reilly claimed that Ms. Mackris' settlement proposals were in reality an unlawful effort to shake them down for a sum that far exceeded, by any reasonable measure, the value of her claims. Fox and O'Reilly alleged that Ms. Mackris and her counsel had demanded $60 million, and that they never wavered from this demand. As the demand was on its face unreasonable and unconscionably high, bearing no relation to any realistic measure of damages on the part of Ms. Mackris, it was, alleged the plaintiffs, extortionate.

They also claimed that the timing of Ms.Mackris' demands, ie, in a Presidential election year, was not coincidental. They alleged that Ms. Mackris' lawyer was active in the Democratic Party, and that the idea was to embarrass Fox and O'Reilly, whose political leanings are not a secret. Thus, Fox and O'Reilly asserted, Ms. Mackris and her lawyer made their claims, not to right a legitimate wrong, but to pressure them into an exorbitant payoff so as to avoid embarrassment in an election year.

The complaint also alleged that Ms. Mackris was unlawfully motivated by a desire to interfere with O'Reilly's book contracts and other business affairs, and so to injure him personally. This, asserted Fox and O'Reilly, constituted tortious interference with business relations. Of course, the press seized upon Fox's and O'Reilly's complaint. Rivers of ink described the lawsuit and the soon-disclosed sordid allegations in Ms. Mackris' countersuit, which purported to recount detailed, sexually explicit conversations between Ms. Mackris and O'Reilly. Ms. Mackris alleged that O'Reilly initiated these conversations, and that they were unwelcome and unlawful. She asserted (and her lawyer repeated in various television interviews) that, as a subordinate to O'Reilly, she was trapped and could not meaningfully complain about his conduct, given his position of great power at the network. Fox, for its part, pointed to e-mails that Ms. Mackris sent to her former CNN colleagues when she accepted O'Reilly's invitation to return to Fox, exclaiming how happy she was.

End of the Suit

Within a few short weeks, all claims were settled. (While the terms of the settlement were confidential, news reports suggested that Ms. Mackris received several million dollars to withdraw her counterclaims.) The parties issued public statements that barely acknowledged the media frenzy that their dispute had set off. On his television program, O'Reilly asserted, “On a personal note, this matter has caused enormous pain, but I had to protect my family and I did … This brutal ordeal is now officially over, and I will never speak of it again.”

On the Charlie Rose public television program (in an interview that had been previously scheduled to promote his new book), O'Reilly asserted that he had done nothing wrong, and he cautioned that any celebrity's good name was at risk of similar attack — perhaps suggesting that even the staid and professorial Rose could be the next victim.

Analysis

What is to be made of Mr. O'Reilly and Fox's lawsuit against their accuser before she was to go public with her own claims? The decision seems to have been purely tactical — and quite effective. The calculation, one may surmise, was that since

Ms. Mackris' accusations would inevitably become public, Fox and O'Reilly would be better served by disclosing them first. No strangers to the media, they presented the allegations in appropriate context, asserting that the claims of sexual harassment were meritless, and that Ms. Mackris was a gold-digger and blackmailer.

O'Reilly and Fox even sued Ms. Mackris' attorney, accusing him of conduct that went well outside the bounds of appropriately zealous advocacy. What would a court have made of these claims? We will never know, of course. However, it is fair to assume that none of the parties expected that the case would ever go before a jury. Commentators have suggested that the tactic of demanding a settlement that far exceeds the actual value of a party's claims is commonplace. It happens every day — it may occur every minute of every day. Nevertheless, courts have recognized that there is a line beyond which lawyers should not go in making demands for settlement.

Flatley v. Mauro 1

Recently, for example, in Flatley v. Mauro 1, a California court refused to dismiss a claim for extortion brought against an attorney who allegedly threatened not only civil prosecution and media exposure, but also criminal prosecution and publication of defamatory measures as a means of obtaining leverage in a proposed sexual harassment civil action. Fox and O'Reilly have not shied away from aggressive legal tactics in the past. Witness their lawsuit against Al Franken for allegedly misappropriating Fox's and O'Reilly's likenesses in promoting his book. While Judge Denny Chin of the U.S. District Court for the Southern District of New York dismissed the lawsuit, Fox sent a strong message that it will aggressively protect its rights.

It is impossible to know whether the settlement value of Ms. Mackris' claim was affected by the pre-emptive lawsuit, but that may be beside the point. The reaction among employers to Fox's and Mr. O'Reilly's aggressive posture has been quietly positive. Companies and individuals accused of racism, sexism, and worse in lawsuits that may subsequently be dismissed or resolved for nuisance value have regarded these lawsuits as part of the cost of doing business. Much to their frustration, employees (whether at a managerial level or not) who are wrongfully accused of misconduct are often urged to turn the other cheek.

Of course, employers must investigate and eliminate unlawful conduct in the workplace. The right of employees to be free of harassment or discrimination must remain inviolate. Employers should not tolerate such conduct, regardless of who carries it out. Employers and those who represent them must consider the possible reaction of the judge and the prospective jury, as well as that of third parties, especially employees and customers. But Fox's and O'Reilly's lawsuit may indicate the turning of the tide, and a new willingness to confront unfounded claims aggressively.