Patterico's Pontifications

10/22/2017

Bill O’Reilly Paid $32 Million To Settle Harassment Claim, Fox Offered Him Lucrative Contract Anyway

Filed under: General — Dana @ 8:46 am

[guest post by Dana]

What on earth could have compelled former Fox News anchor Bill O’Reilly to cough up a whopping $32 million dollars to settle a complaint of sexual harassment against him? Oh, gosh, let’s go out on a limb here and make a wild guess: He’s guilty.

Last January, six months after Fox News ousted its chairman amid a sexual harassment scandal, the network’s top-rated host at the time, Bill O’Reilly, struck a $32 million agreement with a longtime network analyst to settle new sexual harassment allegations, according to two people briefed on the matter — an extraordinarily large amount for such cases.

Although the deal has not been previously made public, the network’s parent company, 21st Century Fox, acknowledges that it was aware of the woman’s complaints about Mr. O’Reilly. They included allegations of repeated harassment, a nonconsensual sexual relationship and the sending of gay pornography and other sexually explicit material to her, according to the people briefed on the matter.

Despite knowing about the claim, the company still gave him a lucrative contract. After all, he brought in the ratings and kept the gravy training running. Be it the Weinstein Company or 21st Century Fox, powerful executives and leaders are too willing to look the other way as long as their predatory powerhouses keep bringing in the big money:

It was at least the sixth agreement — and by far the largest — made by either Mr. O’Reilly or the company to settle harassment allegations against him. Despite that record, 21st Century Fox began contract negotiations with Mr. O’Reilly, and in February granted him a four-year extension that paid $25 million a year.

In January, the reporting shows, Rupert Murdoch and his sons, Lachlan and James, the top executives at 21st Century Fox, made a business calculation to stand by Mr. O’Reilly despite his most recent, and potentially most explosive, harassment dispute.

Their decision came as the company was trying to convince its employees, its board and the public that it had cleaned up the network’s workplace culture. At the same time, they were determined to hold on to Mr. O’Reilly, whose value to the network increased after the departure of another prominent host, Megyn Kelly.

One might wonder why O’Reilly was let go by the company. Was it because of his moral corruption, or because 21st Century Fox wanted to protect their talent and other employees from falling victim to the cable news star, or because the company had their own moral and ethical standards to uphold, thus felt compelled to clean house? As if:

But by April, the Murdochs decided to jettison Mr. O’Reilly as some of the settlements became public and posed a significant threat to their business empire.

They let the biggest cable network star go because their dirty laundry was being aired and their bottom line might be impacted. Already the company had lost 50 advertisers and there were calls for O’Reilly to be fired. It became to risky to keep him:

In addition, federal prosecutors who had been investigating the network’s handling of sexual harassment complaints against Mr. Ailes had asked for material related to allegations involving Mr. O’Reilly, according to an internal Fox email obtained by The Times.

“Their legal theory has been that we hid the fact that we had a problem with Roger,” Gerson Zweifach, Fox’s general counsel, wrote in the email, referring to the prosecutors and Mr. Ailes, “and now it will be applied to O’Reilly, and they will insist on full knowledge of all complaints about O’Reilly’s behavior in the workplace, regardless of who settled them.”

He warned the Murdochs that they should expect details from the January settlement to become public. Six days later, Mr. O’Reilly was fired.

Despite numerous claims of sexual harassment and multiple payouts, the ousted O’Reilly was nonetheless allowed back on Fox News just last month to plug his new book on Sean Hannity’s show.

In an interview this past Wednesday, O’Reilly defended himself against the accusations:

“I never mistreated anyone,” he said, adding that he had resolved matters privately because he wanted to protect his children from the publicity.

“It’s politically and financially motivated,” he said of the public outcry over the allegations against him, “and we can prove it with shocking information, but I’m not going to sit here in a courtroom for a year and a half and let my kids get beaten up every single day of their lives by a tabloid press that would sit there, and you know it.”

Journalists are pointing their fingers at the right for having been vocal in their condemnation of Harvey Weinstein but remaining silent about Bill O’Reilly. The political persuasion of such offensive individuals matters not one bit to me. For years, both powerhouses worked, to varying degree, to cultivate a public image of standing on the high ground of their respective sides of the political aisle – at least on the surface. And the public bought the illusion. Whether it was Weinstein and his sizable donations to Democrats and visible support for liberal causes and politicians, or O’Reilly and his patronizing We’re looking out for you in the no-spin zone sloganeering as he theatrically railed against the left. Yet all the while, both were masters of deception, surrounded by people who knew (or suspected) what they were really up to, yet chose to look the other way because they needed these two powerful men for financial gain and industry success. Weinstein and O’Reilly are contemptible beings. Any who would defend either of them out of of partisan loyalty reveal themselves as little more than hypocritical fools.

(Cross-posted at The Jury Talks Back.)

–Dana

79 Responses to “Bill O’Reilly Paid $32 Million To Settle Harassment Claim, Fox Offered Him Lucrative Contract Anyway”

  1. Ugh.

    Dana (023079)

  2. Move along. No hypocrisy to see here Faux News.

    Ben burn (b3d5ab)

  3. Bill O’Weinstein lol

    happyfeet (28a91b)

  4. Rupert Murdoch of course ditched his wife of thirty plus years for an asian sexbot, so that probably set something of a tone

    happyfeet (28a91b)

  5. O’Reilly’s spokesman claims that the $32 million leak is “obviously designed to embarrass Bill O’Reilly and to keep him from competing in the marketplace.”

    Dana (023079)

  6. President Bill Clinton, who is riddled with herpes, paid Paula Jones what would be the equivalent of something like $1.3 million in today’s dollars

    happyfeet (28a91b)

  7. Women Were Secretly Filmed at West Point, the Army Says

    A sergeant first class on the staff of the United States Military Academy at West Point has been accused of videotaping female cadets without their consent, sometimes when they were undressed in the bathroom or the shower, according to Army officials.

    The Army is contacting about a dozen women to alert them that their privacy may have been violated by the suspect, identified as Sgt. First Class Michael McClendon, and to offer support or counseling, officials said.

    happyfeet (28a91b)

  8. Lis Wiehl is now a wealthy woman and Bill O’Reilly is the same blowhard he’s always been.

    Colonel Haiku (2601c0)

  9. They should next look at the top of the food chain at the NYT. What sordid secrets are they hiding?

    Colonel Haiku (2601c0)

  10. Well ask Mark Thompson about jimmy saville, as that editor now at Bloomberg who suppressed the story about Weinstein 13 years ago. Who wont even being up Peter bean or mutant Bryan singer.

    narciso (bf1c11)

  11. A 16-year veteran with outstanding work performance reviews and accomplishments, Gritz alleges McCabe, along with other senior management, made it impossible for her to do her job and obstructed her ability to move up the ranks.

    She eventually filed an Equal Employment Opportunity Complaint [EEOC] in 2013 for sexual discrimination and a hostile work environment against McCabe and other superiors. In 2012 she received the only negative review in her career with the FBI, and it was conducted by the same supervisor she had named in her EEOC.

    She told Circa, current senior level management, including McCabe, created a “cancer like” bureaucracy striking fear into FBI agents and causing others to resign. She eventually resigned herself, but her case is still pending.

    […]

    McCabe, who is under three separate federal inquiries, did not respond to requests for comment.

    happyfeet (28a91b)

  12. Nonconsensual sexual relationship

    Was she chained up in a basement? WTF does that mean?

    Kevin M (752a26)

  13. Well, with a payout of $32 million, you can expect all kinds of gold digging to follow.

    Kevin M (752a26)

  14. It is definitely a new path to riches. Californians working at major corporations have been schooled for several years now to behave in a way that would be thought common sense and common decency, if both of them were not so uncommon these days.

    Colonel Haiku (2601c0)

  15. And hence the real reason why general Flynn is in the crosshairs.

    narciso (364166)

  16. Perhaps, and Fabiani was like that rat like creature in razorback employee who crafted an official version of ‘fake news’

    narciso (364166)

  17. What we see here is that Bill O’Reilly, an admitted Trump supporter, has adopted the values of the dirty white underclass.

    – Kevin Williamson

    happyfeet (28a91b)

  18. Nonconsensual sexual relationship”

    Was she chained up in a basement? WTF does that mean?

    Coercion, not force. Power!

    Ben burn (b3d5ab)

  19. “I never mistreated anyone,” he said, adding that he had resolved matters privately because he wanted to protect his children from the publicity.

    good job Bill

    happyfeet (28a91b)

  20. We haven’t come very far..

    DW: And how old are the teeth you’ve found?
    HL: Around 9.7 million years old.
    DW: What does a 9.7-million-year-old tooth look like?
    HL: It’s perfectly preserved. It actually looks like a new excellent tooth; however, it’s no longer white. It’s shining like amber.
    DW: No less has been said about this tooth than that the history of mankind now has to be rewritten…

    https://www.google.com/amp/s/amp.usatoday.com/story/787140001/

    Ben burn (b3d5ab)

  21. If you read the link at #5 from O’Reilly’s spokesman, he unbelievably says:

    After the chairman of Fox News Roger Ailes was fired in July 2015, dozens of women accused scores of male employees of Fox News of harassment – including the current co-president of Fox News Jack Abernathy.

    21st Century Fox settled almost all these cases, paying out close to $100 million dollars.

    He sees this as a good (and corrective) thing??

    Dana (023079)

  22. this is kinda starting to have a McMartin preschool stink to it Dana

    happyfeet (28a91b)

  23. Provided it’s actual sexual harassment/assault, I would say guilt had next to nothing to do with it.

    And agree on the nonsensical term: “Nonconsensual sexual relationship”

    This sounds like a sugarcoated way to say serial rape.

    harkin (be4c6e)

  24. Oh crap. I realized, thanks to harkin at 24, that I put Guilt, instead of my intended, He’s guilty. I just made the adjustment in the post. It is obviously what I was going after but apparently had a momentary brain snafu. My apologies.

    Dana (023079)

  25. we can prove it!

    with shocking information

    happyfeet (28a91b)

  26. In other tales of omission of review of Stalin’s war on Ukraine that doesn’t mention Walter Duranty so not impressed.

    narciso (364166)

  27. Gretchen Carlson, who filed a lawsuit last year against Roger Ailes (sexual harassment), tweeted about the $32 million payout:

    Nobody pays $32m for false allegations – nobody

    I agree. I wonder if Lis Wihel must have kept a blue dress of her own.

    Dana (023079)

  28. Or a piece on quradawis daughter, which leaves out the fact he recommends what size stone to use on gays and adulterers but chickafill ( Walsh and Emmanuel have no problem with him)

    narciso (1b7fbf)

  29. Lis Wiehl vigorously rushed to condemn the Duke Lacrosse team members for gross sexual misbehavior on the phony accusations made by an angry black drug addicted nude-dancer/prostitute.

    Wiehl took the bogus accusations for gospel truth and she continued to attack the Lacrosse players on national TV well after preliminary investigations began to cast serious doubt on the accuser’s unsupported story.

    FOX NEWS should have dumped her then and there. But they looked the other way, let her slink away quietly for a few days then brought her back as I’d she hadn’t disgraced herself, Bill O’Reilly, and the FOX network. Now, that the two-faced b*tch as cashed-in her hole card the Duke players ought to sue the dogsh*t out of her and O’Reilly too.

    Some very expensive chickens have come home to roost and FOX executives have only themselves and O’Reilly to blame.

    ropelight (bbe920)

  30. lis went to harvard Mr. ropelight so she’s a classically-trained victim/victim-monger

    happyfeet (28a91b)

  31. Nice to know Neanderthals are BiPartisan

    Ben burn (b3d5ab)

  32. Neanderthals only exist for to separate white trash, who pronounce the word with a “th” sound, from the clean-smelling white people who know to pronounce it with a hard “t” sound.

    On Linguistics, by Kevin Williamson

    happyfeet (28a91b)

  33. Even linguists use a club on the wimmens

    Ben burn (b3d5ab)

  34. O’Reilly has been a jerk and blowhard for years but the details of that case would be interesting.

    I doubt it involves Weinstein type behavior which seems to be more common in Hollywood but the details might have been that bad.

    What is now being called “sexual harassment ” bears little similarity to criminal behavior. Confusing real abuse with changed standards of behavior is weakening the term.

    Mike K (b3dd19)

  35. Mike K,

    Nonconsensual sexual relationship

    Dana (023079)

  36. $32 million? $32 million? Lordy! What Did He See In Her? What Did She Do For Him? For $32 million, he could have maintained a seraglio in Dubai and a private plane to fly him back and forth! What a maroon! What an ignoramus!

    nk (dbc370)

  37. Everything I’ve read regarding O’Reilly and Ailles amounted to what I’ve always though of as repeated unwanted advances, minor league stuff compared to Clinton, Ted Kennedy, Weinstein, Polanski.

    It can happen anywhere and with anyone regardless of politics but that’s how I’ve read it….so far.

    harkin (be4c6e)

  38. As I pointed out, his last book on the pacific war, wasnt chockful of gaffes.

    narciso (d1f714)

  39. $100,000 like Harvey Weinstein paid to Rose McGowan could be “nuisance value”. $32 million is “I haven’t got a prayer to beat this”.

    nk (dbc370)

  40. Well inflation, that was twenty years ago. Also another times infant taric ramadan. Wee accused if sexual harassment in France.

    narciso (d1f714)

  41. “When you rub elbows with the rich, all you get is holes in your sleeves.” — Leo Rosten

    Rub something else … you might get millions.

    nk (dbc370)

  42. $32 million might be a reasonable settlement by O’Reilly for a video taped rape. Non-consensual may have included No!, Stop! and You’re hurting me!. I don’t see any value in comparing the Fox piggery to the Hollywood piggery as to overall cleanliness.

    Rick Ballard (6a5693)

  43. This is the fellie that issued fatwas on sadat and quaddafi

    narciso (d1f714)

  44. What say you, Narciso…this might be a complete inversion of your viewpoints:
    http://m.tmz.com/#2017/10/22/mickey-rourke-harvey-weinstein-bill-cosby-sexual-harassment-rape/

    Roark would need elephant felling dosed of Spanish fly and ruphinol to overcome his famous stench.

    urbanleftbehind (847a06)

  45. one thing’s for certain
    DAT was some expensive trim
    took him to cleaners

    Colonel Haiku (2601c0)

  46. I aVoid tmz like love canal,

    narciso (d1f714)

  47. interestingly it’s the 25th anniversary of Madonna’s Sex book

    this was her song she released with the book

    if I take you from behind

    push myself into your mind

    when you least expect it

    will you try and reject it

    happyfeet (28a91b)

  48. I have no idea why OReilly paid all that jack. Covering up the juicy career-threatening gossip that he enjoyed gay porn may have seemed worth it, if it was actual rape I’m hoping he can still serve time, a NDA should not preclude criminal charges, no matter what Clinton, Polanski and others managed to get away with.

    harkin (be4c6e)

  49. Yyy that was one tortured paragraph.

    harkin (be4c6e)

  50. a NDA should not preclude criminal charges

    No, it does not. In fact, it used to be called “compounding a felony” and carried prison time and disbarment. Now, in my state, it’s a petty offense, like not signalling a lane change.

    nk (dbc370)

  51. nonconsensual sexual relationship Why sue? Why wouldn’t you want the offender prosecuted?

    crazy (d99a88)

  52. “nonconsensual sexual relationship……”

    I’m really really curious what action(s) they are using this term to describe.

    harkin (be4c6e)

  53. “Why wouldn’t you want the offender prosecuted?”

    You might have waited too long due to shock or embarrassment. The burden of beyond a reasonable doubt increases exponentially over a very short period of time.

    Alternatively, (especially wrt actresses or those seeking advancement in the high exposure news brothels) it may have been more of a contractual dispute involving failure to perform per agreement.

    Rick Ballard (6a5693)

  54. $32 million. Jaysus. More evidence Fox News actually does suck and blow.

    DCSCA (797bc0)

  55. I have to admit – as a 61-year-old straight man who never has been able to watch O’Reilly even when I agreed with him, I wish he’d found ME attractive and harrassed me – I’d be the victim for $32M.

    Lazlo Toth (a52ca5)

  56. “$32 million is “I haven’t got a prayer to beat this”.”

    – nk

    “And it’s really, really bad.”

    Seriously, this says way more about the perception of damages than the perception of liability.

    Leviticus (2bb722)

  57. Do we know if O’Reilly paid all of the settlement or if Fox paid some? It’s hard for me to believe the claim was only against O’Reilly.

    DRJ (15874d)

  58. The single most amazing fact regarding this settlement wasn’t specifically mentioned in the linked NYT article:

    This was a settlement made before Lis Wiehl filed a lawsuit. Therefore, by definition, it was settled before Lis Wiehl and her lawyers had any opportunity to engage in the compulsory pretrial discovery process — with its opportunities to obtained evidence in the form of sworn interrogatory answers, document production requests, responses to requests for admissions, and most importantly, pretrial depositions to take testimony through cross-examination of the litigants to test their respective stories — against both O’Reilly and Fox. (Even if Fox weren’t a defendant, it would be the key nonparty witness via its documents and the testimony of its other executives and employees.)

    In other words, O’Reilly agreed to pay this settlement based only upon the evidence Lis Wiehl and her lawyers already had in hand when they presented their claim privately to O’Reilly and his lawyers, before a lawsuit had even been filed. (I suspect that the claim included a draft of such a lawsuit, of course.) But in their assessments regarding the reasonable settlement value of Wiehl’s claims when and if made the subject of a lawsuit, O’Reilly and his lawyers, and Wiehl and her lawyers, were also factoring in the evidence mostly or even entirely unknown to Wiehl, but well known to O’Reilly and his lawyers, which both sides knew that O’Reilly would have to turn over as soon as the discovery process started.

    The most obvious example of such evidence, which both sides could reasonably presume would have become available to Wiehl’s lawyers early on during any lawsuit, is the evidence relating to O’Reilly’s past sexual harassment complaints and settlements, including evidence not only from O’Reilly’s files, but also from Fox’ files (and therefore including complaints against not only O’Reilly but Ailes and others who’ve been run off from Fox).

    When the size of the settlement is a very large multiple (more than an order of magnitude) of the harassed employee’s own aggregate annual salary over the period of the controversy, that also strongly suggests that both sides were making their assessments based on their anticipations regarding punitive damages that a reasonable jury might award and an appellate court might affirm. O’Reilly’s worst-case, and Wiehl’s best-case, actual damages models could never on their own have justified something in excess of $30M. So both sides must have shared the assumption that O’Reilly would almost surely be stuck with punitive damages under every reasonable trial and appellate scenario. Wiehl’s lawyers were making confident guesses; O’Reilly’s lawyers had all the gritty details, but no credible opportunity to bluff about how worried they were about all that still-undisclosed evidence.

    In my opinion, then, O’Reilly paid tens of millions not merely to keep the specific evidence of his past harassment complaints and settlements out of public view, but even out of the hands Wiehl’s lawyers even under confidentiality orders that surely would have prevented them from immediately going public with the details. O’Reilly paid not merely to keep his sins hidden in the closet, but to keep anyone from opening the closet door even a crack.

    Gretchen Carlson’s Tweet thus, if anything, understates the compelling inferences about the clarity of O’Reilly’s liability and the noxious nature of his behavior that must inevitably arise just from the size of this settlement. The technical legal term of art for this kind of settlement is: “The Defendant paid out the wazoo!”

    Someone’s going to respond to this comment by saying big companies pay huge sums of money all the time to settle nonsense claims to avoid bad publicity, yada yada yada. I have little patience being lectured about this subject unless the commenter also does such civil litigation settlement negotiations for a living, including in claims like these. To some extent that argument is true, but it isn’t remotely true enough to even begin to partially explain this result (or, in fact, series of results, when considering the prior settlements).

    Beldar (fa637a)

  59. DRJ, the NYT article says it was all paid by O’Reilly in his personal capacity.

    Beldar (fa637a)

  60. I agree both with Leviticus’ statement (in #58) that “this says way more about the perception of damages than the perception of liability,” and with nk’s statement (in #40) that “$32 million is ‘I haven’t got a prayer to beat this.'” The size of this settlement necessarily presumes that both sides agreed that any jury surely will indeed find liability to exist — and not just liability for actual damages, but also liability for punitive damages, which typically requires additional factual determinations to go against the defendant.

    For context, in hundreds of settlement negotiations I’ve done from the defense side, including many with awful evidence against my clients on both liability and damages, I’ve almost always (95%+) been able to ignore altogether the possibility of punitive damages exposure beyond actual damages exposure. The reasonable settlement value is almost always a fraction of the reasonable actual damages exposure, with the size of the fraction depending on a combination of the strength and size of the damages evidence as discounted by the plaintiff’s probability of success on liability. The very few exceptions to that, when potential punitives exposure played a meaningful part in settlement negotiations, or even in either side’s private settlement analysis, have uniformly been in cases in which there had already been extensive pretrial discovery so that both sides knew that there was indeed a serious possibility that the jury might answer the necessary questions to establish liability for punitive damages in the first place, for it’s only at that point that one begins to look at how to estimate the reasonable settlement value of a punitive damages exposure.

    Beldar (fa637a)

  61. :>0

    Ben burn (b3d5ab)

  62. Would some of those hidden sins have been things that would normally be protected by their attorney-client relationship?

    crazy (d99a88)

  63. @Beldar, I just want to say I appreciate the perspective you bring here. In general, not just this recent series of posts.

    Davethulhu (719fd1)

  64. You’re welcome, Dave (#65).

    @ crazy, who asked (#64):

    Would some of those hidden sins have been things that would normally be protected by their attorney-client relationship?

    Almost certainly not. The NYT story includes this:

    Mr. O’Reilly’s lawyer, Fredric S. Newman, described his client’s relationship with Ms. Wiehl as an 18-year friendship in which she at times gave him legal advice.

    But that’s almost certainly a fig leaf: Wiehl was indeed a lawyer, but her primary job wasn’t as a lawyer, it was as legal news analyst, and her employer wasn’t O’Reilly, but Fox News. She was no more O’Reilly’s lawyer while commenting on legal issues as part of O’Reilly’s work than I’m your lawyer by writing about legal topics in these blog comments. And in disputes between lawyer and client — the most common being disputes over unpaid fees or malpractice — the lawyer may not be bound by privilege even if it would have existed and could have been asserted in the context of other disputes between her client and other litigants; instead, the lawyer is just supposed to use reasonable efforts under the circumstances to only disclose arguably privileged matters to the extent reasonably necessary to assert his claims. I don’t think O’Reilly could have established privilege in his conversations with Wiehl in the first place, but even if he could have, she wouldn’t have been bound by it in her dispute with him.

    Beldar (fa637a)

  65. Beldar, so if there had been no settlement agreement reached, then what do you guess damages might have ended up being, if $32 million pales in comparison?

    Dana (023079)

  66. @ Dana, who asked (#67):

    Beldar, so if there had been no settlement agreement reached, then what do you guess damages might have ended up being, if $32 million pales in comparison?

    I haven’t seen the evidence Wiehl and her lawyers presented, nor that which O’Reilly and his lawyers paid to keep hidden (but that would have come out), so I’m in a worse position than Wiehl’s lawyers to guess what the verdict might have been, either originally or as tested on appeal. I just know that both sides thought the range of probable verdicts, including punitive damages components, as discounted by the plaintiff’s probability of success, was so high that $32M seemed a fair compromise to both sides given their respective evaluations of what their most likely realistic outcome looked like.

    We don’t know either O’Reilly’s net worth or liquidity, and the latter may also have kicked in as a potentially limiting factor here. Typically in these cases, if both sides are expecting punitive damages in a big amount, then the very solvent defendant can afford to post the supersedeas bond to forestall execution on the trial court’s judgment pending appeal, and that usually works to such defendants’ advantage: ExxonMobil can go on with business as usual while appealing an $80M punitive damages verdict, for example, because it can afford to post a bond in that amount (or at least has sufficient assets to be able to induce one or more adequate corporate sureties to post that amount on its behalf). But let’s assume that O’Reilly has a total net worth of $150M; in that case, he might well not be able to post even a $50M supersedeas bond if that were to be the size of the jury’s verdict and resulting trial court judgment, meaning the judgment creditor (here, Wiehl presumptively) could go ahead and start seizing and auctioning off assets while the appeal was pending, which might mean liquidating his entire net worth at firesale prices. The alternative to posting that big a supersedeas bond (thus indirectly dictating the sweet spot that Wiehl’s lawyers would have wanted to stop short of) would be bankruptcy with Wiehl as his largest creditor. (Recall that Texaco had a net worth well in excess of the trial court’s judgment against it in favor of Pennzoil, but even so couldn’t manage to post a sufficient bond, and thus was driven into bankruptcy court.)

    So about all one can say is that O’Reilly and his lawyers thought there was a sufficient risk of a worse verdict and result (including consideration of the appellate prospects and bonding prospects) than $32M to make that seem like a reasonable amount to pay to end that risk, and that Wiehl and her lawyers thought there was a sufficient collection risk for something much larger than $32M, whatever they thought their best realistic-case trial court result would have been, to justify them taking only $32M.

    Beldar (fa637a)

  67. Thank you, Beldar. I’m having a hard time getting my head around this case since they both worked for Fox News. I know it’s possible but it’s hard for me to see how she could have such a big claim against O’Reilly but no claim against Fox, given his past conduct and possible joint settlements. Do you think part of the settlement could have included holding Fox harmless?

    DRJ (0280d9)

  68. O’Reilly’s net worth would have been admissible for purposes of the jury’s determination of punitive damages, and if he had a long history of past claims that were close enough to Wiehl’s to constitute a pattern (a reasonable assumption), they’d certainly have heard about those, too, in deciding how much of his net worth had to be taken away from him as punishment to deter him in the future. If indeed there were a string of five prior settlements that got into eight-figure territory on their own, a jury might well conclude that this guy wouldn’t be deterred in the future by anything less than a punishment equal to, say, 85% of his net worth. That’s at least how Wiehl’s lawyers certainly would have argued it, and both the trial and the appellate courts could properly have used those past settlement figures to assess whether the punitive damages award is reasonable or instead arbitrary.

    Beldar (fa637a)

  69. Oh, she surely had as big a claim against Fox News! I’m reasonably sure her lawyers could have constructed strong arguments that Fox was jointly and severally liable with O’Reilly given its past knowledge and arguable complicity.

    But O’Reilly was sufficiently judgment-worthy on his own that she didn’t need to include Fox in her claim — and that’s genuinely unusual in these sorts of claims, because it’s usually only the company that has the really deep pockets.

    Fox might well be named as an additional released party in the settlement paperwork, or else there are almost assuredly indemnities given by Wiehl to O’Reilly against future claims arising out of these same acts and circumstances, specifically to prevent her from suing Fox anyway even after settling with O’Reilly, because Fox would surely have cross-claimed against O’Reilly for contribution and indemnity if Wiehl did try to sue Fox after settling separately with O’Reilly.

    Beldar (fa637a)

  70. @Bedlar:So about all one can say is that O’Reilly and his lawyers thought there was a sufficient risk of a worse verdict and result (including consideration of the appellate prospects and bonding prospects) than $32M to make that seem like a reasonable amount to pay to end that risk, and that Wiehl and her lawyers thought there was a sufficient collection risk for something much larger than $32M, whatever they thought their best realistic-case trial court result would have been, to justify them taking only $32M.

    Seems like you could eyeball this: if $50 million-ish is about what it would cost him to lose the suit along with punitive damages, then they must have estimated about a 64% of losing that badly, in order to settle for $32 million.

    Frederick (cd593c)

  71. Meh, I find these retroactive claims. What is the evidence. And don’t tell me the nda because the
    Cosby case proved how worthless those are:

    theothermccain.com/2017/10/21/actress-flees-italy-as-sophisticated-europeans-side-with-harvey-weinstein/#disqus_thread

    While new York magazine and the times found no basis to air claims against weinstein as recently as one year ago.

    narciso (d1f714)

  72. Barefootin‘ Golddiggin’

    Everybody turn yo TV on
    Old sheet of music it’s the same ol’ song
    Gotta a guy thinkin’ with his dong,
    Thought he was winnin’ but he would be wrong

    She was golddiggin’, she was golddiggin’
    She was golddiggin’, she was golddiggin’
    Bill grabbed a luffa the other night,
    Blonde Lis Wiele she was out of sight
    Threw ‘way her gig, Fox is history
    O’Reilly stars in Kill Bill Volume 3
    She was golddiggin’, She was golddiggin’
    She was golddiggin’, She was golddiggin’

    Colonel Haiku (2601c0)

  73. @ crazy (#72): Those aren’t unreasonable guesses. I’d guess that both sides were using a higher than 64% discount rate, though.

    The thing about punitive damages is that as put to the jury, the question is usually: How much do you want to smack this guy now to keep him, and others like him who’re watching, from doing this again?

    In theory the jury sets that amount based on the defendant’s just punishment, not the plaintiff’s just compensation for her injuries. Yet despite that, both the trial court (when considering whether to enter judgment on the basis of the jury’s verdict) and the appellate courts (on appeal) traditionally look to see whether there’s some reasonable relationship between actual damages and punitive damages, with a ratio of three-to-one being presumptively reasonable in most contexts.

    If the jury instead finds actual damages (objective economic damages like lost wages or career opportunities, plus subjective damages like mental anguish) of, say, $10M in the aggregate, then most trial and appellate courts who accepted that figure as being supported by sufficient evidence (meaning, enough evidence that a hypothetical rational jury could have so found from this record) would likewise happily enforce a $30M punitive damages award on top of that, for a total potential likely judgment of $40M. If the parties likewise agree that the plaintiff has an 80% chance of doing that well, then that would suggest a $32M reasonable settlement value.

    Note: This is all expressed in terms of present value if paid now in cash. Depending on the tax advice she’s getting, she (or conceivably her lawyers, who’re likely looking at a multi-million dollar contingent fee) might want to spread this out into different tax years. And if it’s beyond O’Reilly’s ready liquidity — maybe he has $32M in gold Krugerrands from Lear Capital Gold, but I doubt it — it might be broken into chunks to allow O’Reilly to raise the money from dispositions of illiquid assets in stages.

    If a defendant is urging any variation of the “Po’Boy Defense” — which runs something like, “There’s no point in us discussing settlement at that amount, because that’s more than my client’s net worth!” — then I’ve seen presuit negotiations in which the plaintiff already “had the defendant by the short hairs” sufficiently to insist upon limited discovery relating to assets. But without knowing O’Reilly’s net worth and liquidity, it’s idle to speculate whether that happened here.

    Beldar (fa637a)

  74. Errata #75: “If the jury instead finds actual damages” above should have read simply “If the jury finds actual damages ….”

    Beldar (fa637a)

  75. He was sort of a character in at least one of the garbriek Allen thrillers:
    http://www.france24.com/en/20171021-france-tariq-ramadan-muslim-scholar-accused-rape-sexual-assault-henda-ayari-ex-salafist

    narciso (d1f714)

  76. You knoevits a curious thing about divorce records:
    massdiscussion.blogspot.com/2006/10/sherrod-brown-neglected-his-children.html

    narciso (d1f714)

  77. Bill O’Reilly was also accused of lying in his books.

    Sammy Finkelman (de36da)


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