Constant's pations

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

Wednesday, October 13, 2004

O'Reilly allegedly took advantage of Mackris

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

This was the blog that was originally titled, "Bill O'Reilly allegedly says dark forces will harm Al Franken".

After reviewing the scope of my blog, I thought the new title captured the broader issue, rather than focusing on Al Franken.

So...I changed the blog-title to the one you see now; and placed the old title [appearing in the Providence Journal and the networks] as a byline, now listed immediateley following this box.

Thanks for stopping by!

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

Letter; Mackris complaint. O'Reilly complaint. News on O'Reilly

Factors against O'Reilly

Policy says "should" report, not "shall." FOX cannot compel something that they have not made a requirement in the Employee contract; Cites no caselaw in re Supreme Court.

Extortion claims

There's been some use of the word, "Extortion." It remains unclear what context this word was used, who made it, and whether there were allegations that the Plaintiffs were engaging in either extortion or failing to comply with pre-agreed-to arbitration clauses, or negotiating in good faith.

If there are allegations of extortion, and those claims-allegations are serious, it would be helpful if those allegations were provided to law enforcement.Ref.

If we hear of no complaint filed with law enforcement in re extortion, the publicly would reasonably conclude that the allegations are unfounded.

If the extortion-allegations are affirmed and entered as being real, bonafide allegations, but without merit, the next issue to look into would be, "Whether there is a subsequent cause for action" in re defamation against the plaintiff for having accused her and her counsel of extortion.

It remains to be understood whether the New York state bar would look into the matter, as it is a serious charge when one party makes an allegation of criminal conduct against another practicing member of the bar. The record is unclear whether the form, substance, and intent of the allegations are true.

However, at this juncture, if there is no actual complaint filed by O'Reilly with law enforcement in re the allegation of extortion, we would then wonder whether any cause of action would be brought in re allegations of defamation for accusing counself and the party of criminal activity.

If O'Reilly doesn't want these issues discussed, then he should not file public complaints. He chose to do so. Thus, he has opened himself up to public discussion, debate, questions, and public examination:

Is O'Reilly making allegations that the Plaintiff has engaged in extortionate demands?

Has O'Reilly accused the Plaintiff of engaging in the crime of extortion?

Is O'Reilly through his counsel accusing the plaintiff's counsel of engaging in conduct that would raise questions about the quality, experience, integrity of an officer of the court?

Is O'Reilly accusing Plaintiff of engaging in a course of conduct that occurred not only in New York but in other Federal jurisdictions?

We note with some trepidation the NY State Bar Code of Professional Responsibility:

A lawyer possessing knowledge, not protected as a confidence or secret, of a violation of [a disciplinary rule] that raises a substantial question as to another lawyer's honesty, trustworthiness or fitness in other respects as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. ref

We would hope that O'Reilly and counsel might clarify their statements so that we might understand the extent to which they hope to have their assertions relied upon in re the lawyer's compliance with the CPR. In short, it is alarming to learn that someone may have engaged in extortionate conduct; whether the parties agree or not is irrelevant. Such a public statement warrants a better understanding before we make any assumptions about the New York State Bar's ability and willingness to investigate such matters.

We do not concern ourselves at this initial stage whether there has been a violation of the CPR; rather, we are merely hoping to understand the nature of the allegation, whether the parties are serious, or whether some other understanding is more prudent.

Indeed, the issue is not that there is or is not a violation; but there appears to be an unfolding chain of events that are making allegations which, if substantive, would raise questions as to whether they amounted to allegations of violations of the CPR.

Although in the muddied waters of the Patriot Act the present administration has sought to use allegations to infinitely detain people, the Supreme Court kindly reminds us that the President is not above the law, and there remains a constitution. In short, there is a difference between a violation and an allegation of a violation.

Making allegations are useful to intimidate opposing parties; however, there is a real problem for both counsel and plaintiffs when those public comments affecting the public standing of counsel are asked to be taken for what they appear to be: Allegations of criminal activity.

We would hope that the parties amicably agree to a mutual understanding of the nature of the alleged extortion; however, in the absence of a mutual agreement, we would hope that counsel and senior partners with direct knowledge of the allegations make timely reviews of the CPR and take whatever action they feel is appropriate in re the NY State Bar. Perhaps no action is warranted. We defer to the parties' competent legal advise to render appropriate guidance.

But will Franken care after O'Reilly climbs out of the quicksand?

If you read the complaint, there is no specific $60M dollar figure mentioned.

Suing Plaintiffs Counsel

Ref, and Ref: At this juncture we have yet to understand the foundation for the statements in re "extortion". Are the parties making allegations against counsel with the intent of filing a formal complaint with law enforcement; or is there no real substance to the allegation? At this point, we do not know whether there is any substance to the allegation; or whether the statement is merely a negotiating tactic to induce Plaintiff and counsel to withdraw their complaint.

Ref. Now that counsel is a party, they are also a witness. It remains to be understood whether back-up counsel are prepared. Ref: We have yet to understand whether counsel formally withdraws, or is replaced by counsel at another firm.

Ref Once Counsel makes statements, they are presumed to be a joint counsel-client position. Thus anything from either O'Reilly our counsel are from O'Reilly for purposes of litigation; and from counsel for purposes of counsel CPR-compliance.

Ref. We have yet to understand whether any of the parties issued orders to counsel that should have been rejected as unlawful or against public policy.

Ref Once counsel or a party makes a statement alleging extortion has taken place, have they been advised prior to disclosure of that statement the possible ramifications?

Ref Once the attorney allows a statement to be made in re "extortion," what consideration was there to issues of confidentiality, how the information was acquired related to the alleged extortion; were the negotiations occurring under any confidentiality agreements.

However, if the basis for the alleged statement [that there was "extortion"] is not based on privileged information, have counsel reviewed their reporting requirements in re the duty to report an alleged violation of the law; if, in fact, there is no report made of this alleged violation, we can only conclude that either counsel is failing in their duty to report a violation ["that there has been an false, defamatory allegation of extortion" and/or "there has been extortion"] or that the allegations is without merit.

Talks broke down, and O'Reilly sued first


Morelli's partner, David Ratner, later said his client told Fox she was prepared to sue two weeks ago, but held off after the two sides agreed to negotiate. Ratner said the talks broke down Tuesday night. ref

Plaintiff counter-sued after O'Reilly went on offensive

The cable network filed its lawsuit Wednesday morning and the woman immediately countered. ref

Dates of court filings show Plaintiff had the complaint ready on 28 September, while O'Reilly filed second on 13 October; and Plaintiff filed the on the 13th, the same day as O'Reilly filed.

Questions about O'Reilly's "Negotiations"

Did O'Reilly engage in negotiations that were "not in good faith" -- simply to find out the range of the allegations so that he could sue first; or did he spend the time "negotiating" so that he could gather information and then file first to pre-empty the allegations?

Allegations of recordings of the phone calls

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. ref

Notice who is speaking: not O'Reilly; the attorney didn't say "there were tapes," only that he believes there are tapes.

New York is a one-party state in re telephone recording.

First, we could assume since the complaint was filed in a New York state [not Federal Court], that no phone calls were made across state lines from New York to CNN HQ at Atlanta, Georgia; this suggests that there was no contact between Plaintiff and Defendant O'Reilly while she was at CNN or doing business at CNN at offices outside New York State.

However, if there are tapes of O'Reilly while he was in NY and she was outside NY, this opens a whole new set of issues. Whether the tapes exist; and whether they are admissible are separate matters.

It appears as this point because the Attorney is making comments about believing there are tapes, that O'Reilly does not know whether there are any recordings of conversations involving NY and non-NY phones.

In other words, until they go through discover and "find the tapes" and "authenticate their time, date, location," to accuse the Plaintiff of recording phone calls that "could only have possibly been made across state lines" but, in fact, those tapes do not exist, would accuse the Plaintiff of a crime. This is not something Fox, O'Reilly, or the attorney can afford to do.

So, it looks like they're sweating bullets, not knowing where she was, who else knew about the phone calls, whether there are tapes, or whether she was in or outside NY when the phone calls were made.

The other thing to consider is what phone records exist. If O'Reilly did in fact make these phone calls, and used a cell-phone, then that tends to tilt the civil-complaint in the Plaintiff's favor--O'Reilly would before the court appear to be making denials about issues that are true.

Further, it remains unclear what requirements there are for the Plaintiff to have exhausted all administrative remedies at Fox prior to filing a civil complaint, when it was O'Reilly that filed first. Again, this would tend to tilt in the favor of the Plaintiff in re whether all "Administrative Options" were exhausted. No one can "exhaust all options" when the administrative-office-arena doors have been closed, and the opponent has taken the negotiations out of the office arena into the court room.

Other issues

  • Venue

    - Depends on whether the final, amended complaint goes against O'Reilly's independent contractor-status [Where is her in corporated] or broadens to Fox [where they are incorporated].

  • Fox

    Examples: Depending on "which division of Fox" they go after, it could be Los Angeles or Delaware.

  • O'Reilly

    Also, it's unclear whether the suit would be amended to hold O'Reilly individually responsible; or as an officer of his own private contracting organization in re broadcasting, or whether as a officer of the book-publishing-side. Depends on how well O'Reilly has protected his assets, and the terms of his employment contracts and other various financial-legal arrangements.

    We can only speculate where/how people-corporations have their assets protected.

  • Risks

    The court found that misrepresentations about violations of the intellectual property law amount of a cause of action. It remains to be seen whether subsequent litigation comes untangled. Case: O'Reilly lost the case against Franken. Unclear why O'Reilly is apparently unable to accept the final adjudication by the NY State Court System.

    We shall not speculate at this point whether the claims is found to be frivolous, or analogous to someone who has engage in misconduct and then accuses the victim of perjury. Ref.

  • ABA, State bar

    Disclaimer: There is no relationship.

    Looks like a "controversial website" is still up, despite the demand letter.

    What happened to Diane Brandi?
    Vice President Legal Affairs

    1211 Avenue of the Americas,
    2nd Floor
    New York, New York
    212 301 3441
    FAX 212 391 4818
    Pager 888 582-9984

    She's still there: Involved in the Fox Billboard case.

    From Drudge and other sources:

    Ronald M. Green
    250 Park Avenue, 14th Floor
    New York, New York 10177-1211
    (212) 351-4500
    F: 212-351-4821, 212-661-0989
    Attorneys for Plaintiffs

    Notes and comments

    Note: We'll come back to this one.

    Ronald M. Green New York Labor & Employment Ref Of counsel. Background, Martindale.

    6 Cases NY cases, excluding DC: He's not only rusty on actual-in-court NY litigation [1998], but he's apparently been doing quite a bit of out of court settlements:

    139 A.D.2d 442 '88 [Party, not counsel]
    184 A.D.2d 359 '92 [compel racial discrimination arbitration]
    81 N.Y.2d 623 '93 [Arbitration clause enforceability in re Federal Arbitration Act]
    234 A.D.2d 200 '96 [contract termination, subsequent competition]
    245 A.D.2d 72 '97 [retaliation: No merit]
    240 A.D.2d 249 '97 [atty disqual as neg tactic; rep not adverse/related]

    Green is a labor and employment attorney, suggesting that the issue is outside an estate issue [in re defense], but they're approaching this initially from the perspective of "an employee has brought an issue up." This means that they've moved from their primary area of expertise [employment] and have now danced into a new area [extortion].

    This is a problem for O'Reilly in that he's potentially started litigation using counsel that are not primarily focused on his real issue: Extortion. There appear to be other firms more qualified to handle extortion-related charges in labor-management disputes. Ref

    We have yet to understand how far into the issues the got in just two weeks, or the nature of other communications Plaintiff may have had with other personnel at either Fox or CNN.ref.

    Also, note that Green's practice area includes arbitration, suggesting that the real discussions going on between the former employee and O'Reilly had substantive issues in terms of "We have a problem, let's move from Fox Attorneys, and focus on a labor-arbitration guy."

    We also note that there are relatively few cases brought to trial; those that the court generally compels counsel's client to arbitrate--suggesting clients typically arbitrate out of court; but once at logger-heads require great pressure to return to negotiations. It appears this is what is going on in this case in re 2004-allegations.

    We have yet to understand the scope and terms of the employment contract between the parties; whether there were any mandatory or discretionary arbitration clauses in the contract; or whether the terms substantially followed/ignored. Counsel appears to be competent in ensuring issues are arbitrated prior to litigation; yet, we await a clearer picture of the issues discussed during negotiation relative to the employment contract.

    O'Reilly is not their only client:
    - Pacifica; Others.

  • Other Issues: Allegations having bearing on O'Reilly's public-status/credibility

    Alleged false and misleading publicly statements on book-sales. Note that, despite letters from O'Reilly through counsel, the site has remained "intact" and "not removed" from the web,for 22 months, suggesting the allegations are not without merit, and that nothing in the public record would credibly suggest that the information is false or defamatory.


    We have yet to have a better understanding of how the parties intend to proceed. There have been allegations of extortion. We have yet to see how the parties play their cards.

    Should credible allegations be filed with NY or Federal Law enforcment in re extortion; or allegations filed against the attorney in re allegations of CPR, we might take O'Reilly's statements as credible.

    Yet, given the record before us in which O'Reilly has lost a case against Mr Franken, we are more inclined to believe that O'Reilly may, despite what appears to be credible allegations against him, fight in court until the bitter end.

    This is known to Plaintiff counsel, and it appears as though O'Reilly's option was to divide counsel and plaintiff. However, this does nothing to address the basis of the allegations against O'Reilly, merely diverts attention.

    We have yet to understand how the allegations in re extortion play themselves out, or whether counsel, as has been in the past, takes the issue to the Supreme Court and is then kindly asked to return to the bargaining table.

    Perhaps a private settlement might have been reached had the number not been $60M. Regardless the lack of settlement, this does nothing to characterize the allegations against O'Reilly as frivolous; rather, we are left to conclude that the stakes are high not only for O'Reilly's reputation, but that his only option is to apparently make accusations of what we are led to believe are crimes of extortion.

    Al Franken is probably penning another novel as he discusses the events on Air America. Thank Goodness the US Supreme Court recognizes the existence of the constitution in re Hamdi Franken's research team at Kennedy School of Government have another project. The new publicity will give new life to Air America, and tend to cast O'Reilly in a less positive manner. Not unlikely there will be a loss of market share, and a subsequent drop in ad revenue. O'Reilly may have met his Dunkirk.