Fox News producer Andrea Mackris has filed a sexual harassment suit against Bill O’Reilly and Fox News, claiming O’Reilly made unwanted lewd and sexual comments to her in person or on the phone.
Her lawsuit came just hours after Fox sued her and her lawyers for extortion. Then Wednesday, Andrea Mackris added new allegations to the suit: She now claims the defendants are retaliating against her, and she pointed in part to an interview from the MSNBC "The Abrams Report," when MSNBC host Dan Abrams talked to investigator Bo Dietl, who’s working for O’Reilly.
A report out in New York’s “Daily News” claims Mackris turned down a $2 million settlement offer days before the suits were filed.
Last Wednesday on 'The Abrams Report,' Abrams spoke with Ron Green, who is an attorney for Fox News and Bill O’Reilly. (Mackris’ attorney, Benedict Morelli, was also invited to come on the program, and he once again told “The Abrams Report” that he did not have time to talk.)
DAN ABRAMS, HOST, ‘THE ABRAMS REPORT’: Let me start with issue number one— and this is the first issue I think we have to get out of the way: Does Bill O’Reilly admit that he made the comments that are laid out in the lawsuit?
RON GREEN, ATTORNEY FOR FOX NEWS & BILL O’REILLY: No, he does not. In fact, what Bill O’Reilly has stated directly and through me, his counsel, is that not only has he never engaged in any form of unlawful sexual harassment at any level, but he will not comment specifically on the words or sentences or phrases that are contained in the complaint against him, which seem to be part of larger conversations until we can see those conversations in full and in context.
We want Mr. Morelli to produce the tapes that we believe may exist that his allegations imply do exist by how they are set forth... and frankly, to either fish or cut bait.
ABRAMS: On his program on Monday, O’Reilly said, “This is my fault. I was stupid and I’m not a victim. But I can’t allow certain things to happen and I appreciate your support. We get thousands of letters, but I’m not—I am stupid. I am a stupid guy and every guy listening knows how that is. That we are very stupid at times.”
By saying he’s stupid, it sounds like what he’s saying is I’m stupid because I said those things and I probably shouldn’t have said it.
GREEN: Well, I think what he was saying was that he was stupid to allow himself to be placed in a position of vulnerability where someone could think they should shake him down and extort money from him. Remember what we have here is a $60 million threat that appeared in a draft complaint that was shown to Fox attorneys before any complaint was filed in this action and then a demand from which Andrea Mackris’ counsel never retreated of $60 million, offering no proof of injury.
Frankly, Dan, a late breaking development today was that we sent a notice to take the deposition of Andrea Mackris in her suit filed after our extortion lawsuit and a notice to have her examined by a physician in support of her claims that she was emotionally damaged. We received a letter just today from Mr. Morelli on behalf of his client, Andrea Mackris, that he has not placed at issue in her lawsuit any claim concerning her emotional state. Since she’s not claimed physical injury, she’s still on the payroll, has suffered no economic harm, that betrays his notion that this is anything but a claim of extortion.
ABRAMS: I agree with you that the numbers here are sort of ludicrous. And as I said before, I’ve said it many times; I think damages are going to be a real problem for her to demonstrate. But it does sound like whenever, and I’m not just talking about you, but anyone who’s affiliated or sort of on O’Reilly’s side in this talks about this, they always couch it in, well, “You know, maybe he said it…” I mean are you telling us straight out he did not say the things that are in that lawsuit, he never said them?
GREEN: I can’t tell you that he never uttered the words or sentences or phrases that appear in the claim that she’s made. What I can tell you is that until we can see the source of those alleged remarks, notes, transcripts or tapes, we can’t put those things in context if they were said...
GREEN: Were they, in fact, said as answers to questions? Was she reading a script? What we know is that she told a colleague from whom we have a sworn statement in August of 2004 is that she had done the lawyer thing, was going to get $1 million from Bill O’Reilly and buy the apartment in New York City she always wanted and couldn’t afford.
ABRAMS: Let’s talk about numbers. You mentioned numbers there. Bo Dietl on the program Friday, pretty clearly saying to us that a number—a bunch of numbers were thrown around in this case. There was a report today about $2 million, there were it seems clear some level of settlement talks. Was there any number thrown around at you apart from 60 or 600 million?
GREEN: I don’t know of any such numbers. What I do know is this—that the demand made by Andrea through her attorney, Mr. Morelli, never dipped $1 dollar below $60 million. And the threat was that now during the pre-election season that now at this time when Bill O’Reilly’s ratings are at an all-time high, we would give them an ultimatum of days, not weeks or months to pay $60 million or they would go public with their scurrilous allegations.
ABRAMS: Well let’s talk about that. I mean you claim that’s extortion. As a legal matter, you as well as anyone knows, in these cases, every day there are discussions where one side says “Here’s what we claim. Unless we settle this case, I’m telling you right now, we are going to sue you. We are going to go public with this.” Are you saying that no lawyers are ever allowed to say that in the context of settlement negotiations?
GREEN: No, I’m not. What I’m saying is as the appellate division in this state has said on the level of professional responsibility, by way of example, if there is gross disproportionality between any demand for settlement and any conceivable injury, that is prima facia evidence of a breach of professional responsibility. And the difference also exists under our state penal law.
Even if allegations are true, and we do not for a moment conceive that they are in this case, you can use the truth as an unlawful weapon. For example, suppose someone has a photograph of an on-air celebrity taken when they were young and foolish that if published today would be grossly embarrassing but the photograph is a true depiction of an event. And whoever has the photograph says to that personality, I have not been injured, I own the photograph. But I’m going to release it to the public for the expressed purpose of causing you humiliation unless you pay me an extraordinary sum of money.
ABRAMS: Releasing to the public is different from filing a lawsuit. I mean you would agree with me that the threat of saying I’m going to release something that I have secretly and embarrass you to the public is different from saying look, we’ve got these allegations, which are true and we’re going to file a lawsuit and that’s going to be embarrassing.
GREEN: No, because the rules concerning extortion and the rules governing appropriate professional conduct limit how you can plead, what you have to plead and for what purpose...
ABRAMS: But professional conduct doesn’t equal extortion. Professional conduct is just guidelines for lawyers.
GREEN: But they’re not mutually exclusive propositions. If, for example, someone has a claim to make, and they choose to put it in unnecessarily graphic terms for the purpose of causing public humiliation, irrelevant to the prosecution of their cause, that can be extortion... : ... and then coupled with a demand for $60 million...
ABRAMS: You know that happens—they throw out numbers all the time in these lawsuits...
ABRAMS: ... and they’re completely ridiculous.
GREEN: No Dan, I must disagree...
GREEN: With respect to one point, there’s a difference between the indemnible (ph) clause and a rock bottom settlement demand made for the purpose of extorting money.
ABRAMS: Benedict Morelli, the attorney for the woman suing Fox News and Bill O’Reilly, saying there were a number of numbers thrown out. Mr. Green, he says that there were a lot of numbers thrown around. Is that just not true?
GREEN: That’s just not true as far as I know. The only number I know about is $60 million. Let me say otherwise, Dan, that with respect to your previous comment about how unusual it might be to sue an attorney for extortion when a settlement demand is outrageous. I call your attention to the decision just three weeks ago in the Michael Flatley case, the “Riverdance” star.
In California, the court there ruled that Michael Flatley could proceed with a claim of extortion in California state courts against a woman and her attorney who had threatened him with a sex abuse claim publicly aired. His response was exactly what Bill O’Reilly’s response was here.
ABRAMS: I don’t have a doubt that lawyers could at times be engaging in extortion. I’m saying that in a case like this where so far no one has denied that Bill O’Reilly made these comments and Bill O’Reilly himself is acknowledging that the comments he made were at the very least stupid, to then say that settlement negotiations were—even if he said we’re not settling for less than whatever amount, to say that
that’s extortion on the part of the lawyer, according to not just me, but just about every attorney who’s come on this program who specializes says it’s a long shot.
GREEN: I can’t be speaking for the attorneys on your program. I just finished tonight a very interesting article by the well known criminal lawyer in New York, Stanley Arkin (ph) who agrees with Judge Hand (ph) of the U.S. Supreme Court and others for the proposition that when an attorney advances a claim for the purpose of extorting money by threatening public humiliation if demands aren’t met, that is the felony of extortion.
ABRAMS: For the purpose of extorting money as opposed to the purpose of settlement, right?
GREEN: But settlement must relate not just to a good-faith belief in your case, but reasonable compensation for injuries sustained, not for the motivation of taking what people will pay for silence. That’s extortion.
ABRAMS: All right. I think you would agree that your lawsuit on the extortion is going to be a long shot. It’s going to be an uphill battle at the very least, would you not?
ABRAMS: You wouldn’t agree with that? All right.
GREEN: I would agree that every lawsuit is a challenge. I think Mr. Morelli’s challenges in this case are far greater than mine on two fronts.
ABRAMS: Bo Dietl was on the program Wednesday—a lot of my viewers wrote in, were very angry about this comment he made. Andrea Mackris actually cited our program in her amended complaint.
He said, “There’s no case of sexual harassment there and now what we’re going to do as investigators now is take her credibility and show the court, if it ever goes there, her credibility falling apart. This is going to be a message to people. When you file these frivolous lawsuits and you think you’re going to get people that are well known give you money for garbage like this, we’re going to investigate you. We’re going to uncover things that we’ve already—about your life so you’re wide open right now. So beware, people.”
ABRAMS: Ms. Mackris says that that is effectively retaliation for her filing this lawsuit.
GREEN: Well she’s forgetting the first lawsuit. The purpose for which Mr. Dietl and other investigators were hired was to find out more about someone who we believe has committed a crime, not to help us defend a meritless sexual harassment case. We don’t care about her prior sexual interest or history.
We do care about the fact that she threatened to extort money from prominent corporate officials, prominent corporations and a very valuable on-air personality, destroy his marriage, his children’s relationship with him, and his career. That’s extortion.
ABRAMS: The final question is regard to Fox and News Corp. I’ve said that I think they have a very tough case to make against Fox News because there’s no indication, even in the lawsuit, that anyone else at Fox knew or even that Fox should have known. Yet, some lawyers have said on this program, “Well, you know, you don’t have to prove that. You don’t have to prove that Fox should have known. If they created an atmosphere, if Bill O’Reilly because of who he was at Fox News said these things, Fox News could be liable as well.” Your response?
GREEN: That’s a profound legal analysis. I will say this, that several days before Ms. Mackris’ attorneys asked for $60 million to settle her claim, she responded to an e-mail inquiry by friends asking her how she was doing having returned to work with Bill O’Reilly some months earlier, and having worked with him for four years before leaving for CNN. She said “I’m having a wonderful time here. I love the people. I’m home and I will never leave again.” Are those things you would say to your friends on a confidential basis if you were working in a hostile environment? I don’t think so.
ABRAMS: That is going to be one of the problems that she will have in this lawsuit. Ron Green, thank you so much for coming on the program. We really appreciate it.
GREEN: Thank you, Dan.