Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Friday, October 15, 2004

Bill O'Reilly allegedly says dark forces will harm Al Franken

Alert in re O'Reilly and the Olbermann Blog-Story


Thanks for stopping by. Here is the the original blog referred to in the article you read, and also another blog on the same subject.

FYI: I had changed the titles before being alerted it was linked at the Providence Journal-Blog or the networks; apologies for the mix-up to these referers: News and Projo's Sheila Lesson.

As you can see, I've now re-activated this page. Sorry to all who tried to read but were unable to; tell all your friends, "Constant was the one who made the error, Sheila got it right."

Happy Halloween!

Constant, 16 Oct 2004

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  • After I wrote the above blogs, I had some other thoughts: here.

    Torts: Causation and damages.

    O'Reilly's shows' ratings have shot up; unclear how he can show that the Mackris-negotiations directly caused damages. At worst, Mackris' negotiations have been a benefit. Yet, if that's not enough to shut down the claim, it wasn't Mackris that caused the disclosure and possible "problem," but it was O'Reilly who filed first.

    The court could likey say, "because [element not proven] was not shown, we need not consider ... [i.e. not form an opinion on other factors, issues, elements of the claim raised, which may still be in dispute after litigation]."


    11f is the rule that prohibits frivolous lawsuits. It remains to be seen whether the court eventually rules in Mackris' favor and admonishes both O'Reilly and counsel for the apparently unsubstantiated allegation of criminal extortion.

    Remember, it is not "extortion" to threaten someone with a civil lawsuit if they refuse to negotiate. Everyone has the right to bring a civil claim; and threatening a lawsuit to arrive at a settlement is actually encouraged, not sanctioned. Whether that claim has merits is a different matter; so threatening someone with a lawsuit is not extortion, nor is it a basis to then sue them. Rather, the preferable strategy [which O'Reilly chose not to engage] is to say, "OK, you think your case is winnable, go ahead an sue me."

    We are reasonably lead to believe that because he apparently did not say this, and sued first he's hoping to win favor.

    Small problem. O'Reilly doesn't realize that the early 2001-03 political favor that he once carried in the public in re WMD is exhausted. We need only look at the waning ratings. What O'Reilly may have thought he could do "should have" sunk in when he lost th ecase against Franken. But some require larger calibrations to their deflated egoes.

    With respct to Mackris, if O'Reilley truly thought the case "had no merit" then we have yet to understand why there was no 11f-claim against Mackris Counsel, or what the pending status of the NY Bar "investigation." Again, we hear nothing, raising the prospect that O'Reilly is desperately grasping for straws.

    Here's a hint, the straws have already been burnt, and O'Reilly is standing naked in a bare, open oil-field more barren than the Iraqi wastelands south of the Sunni Triangle.


    Although we have yet to hear what may be on the alleged tapes, it is looking increasingly likely that O'Reilly could very well have his entire claim thrown out and the costs of both his own lawsuit and that of Mackris borne by him. This is even before we get into the litigation over the Mackris claims. Stay tuned, they could grow and mutate into a larger beasts, less amicable to Bill O'Silly's.

    End result

    After the apparent allegations of extortion which the court could very well dismiss, it's not unlikely the court could admonish counsel and O'Reilly by increasing the amount of damages. Yet, clearly, $60M is high; but courts are not unknown to say to a party, "You had the chance to settle at a lower amount, you brought frivolous charges, you accused the victim of engaging in a crime, you engaged in public retaltion against a whistleblower, you did other nasty things [to be adjudicated upon leave to amend] and you defamed a member of the bar. Treble damages."

    We can only speculate as to the wisdom the courts will bring to bear.

    Wisdom of Courts

    Recall, that despite the large ego of the President, it was Justice O'Connor that kindly reminds us there is a Constitution. Why the 4-star generals have not loaded up their Gulfstreams with a chorus of lawyers to swfitly litigate in Guantanamo in compliance with the Supreme Courts ORDER, we can only wonder.

    Here's a hint DoD: You might want to get your 4-star generals to free-up their VIP transport and get some lawyers down to Guantanmo yesturday before someone finds DoD in contempt of court for failing to swiftly comply with all due speed with the Supreme Court Order. Or do we need to take this back up, as was done in re Brown v Board of Education?

    Who knows. O'Reilly could very well wish he had simply written a check for $60M and walked out the door a free man to rant and rave on the airwaves. But Good Old Bill now wants us to believe that he's got a close relationship with the President.

    This comes as a surprise given the 2003 statement:

    if the Americans go in and overthrow Saddam Hussein and it's clear he had nothing, I will apologize to the nation, and I will not trust the Bush administration again." -- March 18, 2003

    Again, keep in mind that it was O'Reilly in his complaint that brought up the "politically motivated" Democratic-attorney for Mackris.

    O'Reilly would have to explain how any action could be "politically motivated" when it was O'Reilly who first wanted us to believe that he was distancing himself from the President in the wake of the illusory-WMD; and now that the President is going down, it appears as though O'Reilly is hoping to tie himself to the same mast.

    In short, everything that O'Reilly is saying confirm the initial mis-informed opinions that the Mackris-allegations have merit; that O'Reilly's defenses are frivolous; and the counter-claim-filed-first could very well be taken by the court as retaliation against a witness. Stay tuned, get your Polka hats ready.

    The claims brought before Fox

    There's the illusory argument that O'Reilly is spouting saying, "Mackris should have brought her claims before..." or that "she should have spoken to someone..."

    Well, she did. She spoke to O'Reilly who agreed to stop; and her counsel also wrote a very polite letter to Fox-counsel addressing the issue in house.

    Are we to expect someone like Mackris not to take O'Reilly on his word and "not trust him" after he agreed to something? At the moment, we only have the benefit of hindsight; but at the time of the return from CNN that was verbal agreement that Mackris relied upon--key word, "Reliance".

    Don't blame the victim; rather we should call into question the merits of any talk show host, fiduciary, or government official who says one things, plans to do something else, and all the while asks the public-client-employee to rely on that knowing misrepresentation.

    Yet, again we are not accusing O'Reilly of fraud; nor are we accusing him of making a knowing false statement as this would be defamatory. Rather, we merely speculate that if O'Reilly truly wants to "take it as far as he wants to go," then the public is only going to lose that much respect for a man who did take the time to apologize in 2003 over the WMD issue.

    But it is appalling that any man of his stature [or former stature] would, at this moment [that he is going down with the President into retirement and chasing golfballs, woof!], that he would take-on a young lady simply because she dared rely on a promise, and then stand up to his apparent inability-refusal-selective-forgetfulness over agreeing to perform on that "verbal-oral non reduced to writing but reasonably relied upon and discussed with friends" agreement.

    Yet, the fact that there was an employment contract above $500 would tend to suggest that regardless O'Reilly's defenses, that the contract to continue working with O'Reilly was made on the assumption that certain terms and conditions would be met. We are not speculating as to the nature of this agreement, as we have no direct knowledge of the facts, terms, or specifications of such clauses; yet it is interesting to note that Fox clearly has a problem: They have an employee that returned, was paid, and was continuing to get paid under some sort of contract.

    Are we to believe that this contract somehow only existed in the ways that O'Reilly remembers, but doesn't actually reflect any agreement? Because if we are to take Fox's complaint at its face value, [in that Mackris failed to complain and returned and said she was happy], the fact that she did return, did get a signed contract, and was paid indicated that the terms of the agreement [not to engage in past misconduct=] were substantially complied with.

    In other words, because O'Reilly agreed and did in fact take positive affirmative steps to comply with the agreement would tend to ratify the terms of the contract. Again, the contract is construed not only in the terms of the language within the four corners, but also in terms of the course of conduct that was enforced.

    Why would Mackris think to bring a complaint against O'Reilly earlier if O'Reilly was substantially agreeing to comply with the verbal-oral contract to stop the alleged prior misconduct? There is no reason, thereby increasing the merits of Mackris' claim that she relied on the verbal contract; that the contract was substantially complied with; that there was an ongoing relationship with the other parties in a manner that substantially relied on that verbal agreement; and that the words of that agreement, because they were complied with, became a part of the overall contract, working relationship, and interaction and business dealings between O'Reilly, Fox, and Macrkis.

    It remains to be understood when O'Reilly allegedly shifted gears and renegged. Against it is without merit for Fox to suddenly say after Mackris and O'Reilly have allegedly agreed to an interaction to suddenly say, "She should have..." when the terms of her contract say, "Should..." which she did.

    That Mackris did not elevate the issue is irrelevant, as the agreement with O'Reilly was one that satisfactorily resolved out of court, in a suitably administrative matter agreeable to both parties. Mackris assented to the terms, relied on the substantially, adjusted her work schedule, moved her work area, and made dramatic efforts to substantially continue to working relationship on the assumption that certain terms would be adhered to.

    Mackris should be congratulated for working with O'Reilly in a non-public way; should be rewarded for her efforts to "handle the issue at the lowest possible level." And she did. She worked with O'Reilly, drafted an employment contract, continued to work, and things were going well, as alleged in the e-mail.

    Yet, suddenly something changed. This is what will come out. We will find out why, despite the agreement to work with O'Reilly, that apparently the terms of that agreement were apparently not fulfilled, prompting O'Reilly to allegedly do things that were outside the bounds of the terms that Mackris relied upon.

    But to suggest at this juncture that it is Mackris that failed misses the point. Anyone with her limited legal background should be rewarded and recognized by the court for amicably dealing with an issue rather than exhausting the precious court resources over matters that could have been taken care of out of court.

    Indeed, this is what did happen. Rather than exhaust the courts patience with trivialities, Mackris engaged in civil dialog, came to an agreement, and did not exhaust the courts precious resources. She should be commended.

    But, then the dark forces of Al Franken's evil-friends in the White House come into play. Can you hear them? Can you hear the Darth Vader music: Duh-duh-dudh, duh, duh...duh. Are we to believe that upon invoking the evil dark forces of Al Franken, that O'Reilly is going to pay a residual to Mr Lucas for invoking the feint revelations of evil doers? Please!

    Where is a script-editor when you need one. If this had been playing out in Hollywood [you mean the script doctors have not come knocking yet], who would we have cast as O'Reilly? -- Are we going to go north once again to our friends north of the border and find another young lad scrapping for attention, waiting to blossom on the silver screen, his wide eyes bringing heart-fluttering-palpatations to America's soon-to-be-female-voters armed with Ipods-icons-igods?

    We need not alleged there has been fraud, or that anyone has relied on a verbal-oral contract, but it's not looking good for O'Reilly. In short everything O'Reilly throws up as a defense casts him in a worst light.

    Whether this is brought in an amended complaint remains to be seen.

    Final disposition

    Could very well be a NY Bar investigation which may not likely amount to much. We'll have to see.

    Also, O'Reilly's claims could very well be dismissed; and Mackris given leave to amend her complaint, and permit cause of actions related to defamation, attorney costs in re 11f, and constructive fraud in re reliance. Whether they move for jury-demand of "trial by jury" remains to be seen. O'Reilly could very well say something else of have counsel file another motion that would escalate the situation; we can only wonder.

    Further, it remains to be seen what recourse both counsel and the firm will take in re a counter-suit against O'Reilly in re defamation or interference with business relations. At this juncture, it's too early to know what the law firm is planning, whether they have retained counsel for purposes of serious defense, or are going to go on another route equally as surprising as O'Reilly.

    Mackris' attorney is a smart man, he's been around and he knows a good case when he sees it. He's not likely to back down, especially when he's getting this much attention over something as substantive as something that he's intimately familiar with and has a track record of success.

    Again, the fact that prior claims-judgments-damage awards to his counsel have "only" been $3M have nothing to do with the law firm, and everything to do with the defense-ability-to-pay-for-damages-settlements. In other words, it's irrelevant what O'Reilly says in the complaint about the $3M in "other cases," as the court will look at this case on its own merits.

    The $3M should have been brought up during negotiations, which I'm sure it was; it is irrelevant to the public. It looks as though the complaint was quickly drafted with little thought given to the exposed windows. O'Reilly has thrown alot of stones and probably doesn't realize that despite the seriounsness of the allegations and the $60M at stake [possibly now more], he's finding more broken windows faster than he can hide from them.

    If only politics were this much fun. It can be, that's why they have Al Franken. He's still below Dick's bunker. Keep digging. You'll figure it out.