Patterico's Pontifications

10/23/2017

David French: LOL At O’Reilly’s Release Of Lis Wiehl’s Affidavit

Filed under: General — Dana @ 9:38 pm

[guest post by Dana]

On the heels of the NYT report about Bill O’Reilly’s humongous $32 million payout to former Fox News legal analyst Lis Wiehl, the no-spinmeister released the full text of Wiehl’s artfully worded affidavit.

First, David French offers an explainer:

…statements like this aren’t uncommon after settlements — especially when those settlements involve prominent people or prominent institutions. Part of the “purchase price” of the settlement often includes a statement that defendants use to try to claim that the litigation was nonsense from the beginning. Plaintiffs will accept the payout and do their best to negotiate language that’s as meaningless as possible. They want the settlement amount to do the talking. Negotiations over statements or affidavits can sometimes be more complex and contentious than negotiations over even seven-figure payouts. The wording is careful, and the statements are notable mainly for what they don’t say.

He then breaks down the statement in an amusing fashion, showing why it doesn’t exonerate O’Reilly, in spite of that being the hoped for outcome:

1. I have known Bill O’Reilly for over 18 years. We have worked together, we have socialized, and on occasion I gave him legal advice.

Translation: I used to work with Bill O’Reilly.

2. At the end of 2016, I hired counsel who prepared a draft complaint asserting claims against Bill O’Reilly. We have since resolved all of our issues. I would no longer make the allegations contained in the draft complaint.

Translation: I sued O’Reilly, he paid me $32 million, and I agreed to drop the suit. I “would no longer make the allegations” because every settlement agreement ever created in the entire history of the universe bars the plaintiff from ever again raising her original claims.

3. Additionally, over the years while I was acting as Bill O’Reilly’s counsel, he forwarded to me certain explicit emails that were sent to him, and any advice sought or rendered is attorney-client privileged, confidential, and private. I have no claims against Bill O’Reilly concerning any of those emails or any of the allegations in the draft complaint.

Translation: My lawyers are very, very good. Admire their handiwork. If you read closely, all I said is that he sent me explicit emails, I can’t talk about them, and I have (note the verb tense) no claims. Of course I currently have no claims; I settled them for $32 million.

4. Also, I have reached an accommodation with Fox News regarding the termination of my employment. I have no claims against Fox News.

Translation: Same verb tense as the previous paragraph, y’all. I have no claims because I settled those claims.

Allahpundit asks the question that answers itself:

What the affidavit doesn’t say is that she recants the allegations in her complaint as having been untrue. You’re left wondering why, if nothing happened between them, there’s nothing in there that states plainly, “I, Lis Wiehl, hereby acknowledge that Bill O’Reilly never harassed, assaulted, raped, or behaved otherwise inappropriately with me in any way.”

Meanwhile, back at the ranch, Megyn Kelly and Gretchen Carlson have both responded to the news of O’Reilly’s whopping $32 million payout. O’Reilly, true to form, is punching back.

O’Reilly also said today that he is mad at God about the sexual misconduct allegations, and that he regrets having settled with Wiehl.

(Cross-posted at The Jury Talks Back.)

–Dana

58 Responses to “David French: LOL At O’Reilly’s Release Of Lis Wiehl’s Affidavit”

  1. Hoo boy.

    Dana (023079)

  2. What is the point of a settlement that anyone can leak, but seriously you need a lawyer and to buy a whole box of clues, we understand why this story leaked, it was to obscure 13 years of coverups by the times and new York magazine.

    narciso (d1f714)

  3. And we know that irresponsible bordering on criminal newscoverage will not be taken to account, Zimmerman 2014, Palin 2017, lets stop pretending the law is not a donkey.

    narciso (d1f714)

  4. Where’s the fun in a leak that leaves out all the sex? Only Scrooge MacDuck would be titillated by the mention of the $32 million alone.

    nk (dbc370)

  5. As for the point of the settlement, I thought Beldar and Leviticus explained in the other thread. So O’Reilly wouldn’t be looking at a $100 million judgment.

    nk (dbc370)

  6. The part of job doesn’t become him, maybe he should have studied more at canisius, it is the devil who torments and tests.

    Has there ever been a 100 million settlement that want pared back by appeals courts

    narciso (d1f714)

  7. $72 million worth of sex — $32 million to Wiehls and $20 million each to Kelly and Carlson. These ladies must get together and publish their memoirs. In three volumes. Move over Fanny Hill, move over 1001 Arabian Nights, move over Kama Sutra! They owe it to ManHumankind — to History, to Anthropology, to Literature, to Biology!

    nk (dbc370)

  8. Some people need a taser to the genitals.

    Simon Jester (d856de)

  9. It sounds dubious, but that’s probably what the Murdoch’s demanded a danegeld,
    to get to advertise, I thought him dangerously shallow, but that’s not illegal when proof of stark raving madness is a prerequisite at MSNBC. In southie o’donnells rants would be fighting words

    narciso (d1f714)

  10. I understand everything French and Allapundit says.

    At the same time, Lis Weihl would not want to be cross-examined on the contents of that affidavit.

    You might think it says nothing, but a good attorney on cross-examination will turn “nothing” into “something.” That’s what they do.

    shipwreckedcrew (56b591)

  11. Settlements are not appealable. Judgments are but, except in rare instances, an appeal bond in excess of the judgment must be posted in order to stay their enforcement during appeal. Without the bond, by the time the appeals are over, the defendant will have been stripped bare. Beldar also explains that in more detail.

    nk (dbc370)

  12. If she were called as a prior acts witness in another case involving O’Reilly, shipwreckedcrew? I agree. That affidavit would not mean anything.

    nk (dbc370)

  13. An award, you know what I meant. He reAlly thought after Cosby anything would stay where it was found, that is terminal naivety.

    When I see Ronnie earl on John chisholm disbarred and or bankrupt, then we start to see the semblance of justice. As such the prosecutor who falsified the Stevens indictment were fully restored by 20q5,

    narciso (d1f714)

  14. I did 6 hours of CX on a 15 page search warrant affidavit about 2 years ago. Only about 3 pages were at issue.

    But I had a young federal agent who had never testified before, and it wasn’t very hard to move him around in his testimony. I finally got the evil eye from the Judge, who I knew well, and I knew it was time to put the kid out of his misery.

    Its not hard to do if you have seen it done before so you know how to structure your questions.

    shipwreckedcrew (56b591)

  15. I don’t understand why he’s still fighting about this and not running off to sex rehab or booking an interview with some sympathetic Oprah-ite.

    I still question the $32 million figure too. Has he admitted this amount is true?

    Patricia (5fc097)

  16. actually i’d bet a donut rainbow allahpundit’s the only person “left wondering why, if nothing happened between them”

    and he’s just trolling like a bottom-feeding trash-pooper

    cable news propaganda sluts are trash

    some get caught some don’t but it’s a nasty business all up in it

    sick and slurpy

    except *maybe* neil cavuto

    maybe

    happyfeet (28a91b)

  17. @7. These ladies must get together and publish their memoirs.

    Or Les Madames may just open a ranch in Nevada.

    DCSCA (797bc0)

  18. R.I.P. George Young, founder/songwriter/rhythm guitarist for The Easybeats (of “Friday on my Mind” fame), founder/songwriter/lead singer for Flash and the Pan, and co-producer (with his music partner Harry Vanda) of the first five albums by his younger Young brothers’ (Angus & Malcolm) band AC/DC

    Icy (022a9e)

  19. Kinda sorta explains why O’Writhing was cranking out those “Killing” books.

    Looks to me like Wiehl made teh killing…

    “comin’ Tuesday I feel better…”

    Colonel Haiku (ef4f0e)

  20. Additionally, over the years while I was acting as Bill O’Reilly’s counsel, he forwarded to me certain explicit emails that were sent to him, and any advice sought or rendered is attorney-client privileged, confidential, and private. I have no claims against Bill O’Reilly concerning any of those emails or any of the allegations in the draft complaint.

    Translation: My lawyers are very, very good. Admire their handiwork. If you read closely, all I said is that he sent me explicit emails, I can’t talk about them, and I have (note the verb tense) no claims. Of course I currently have no claims; I settled them for $32 million.mails that were sent to him, and any advice sought or rendered is attorney-client privileged, confidential, and private.

    Correct translation: Bill O’Reilly’s defense is taht he sent her explicit emails while she was acting in the capacity of Bill O’Reillys’s private attorney. This may be totally false, in that she may never have been acting as his attorney, (and she probably wasn’t paid anything) or may be partially true. (and earlier he did hire her as away of paying her off)

    The statement tries to make believe that ALL of the explicit emails sent to her were not composed by Bill O’Reilly, and were sent to her for that reason – because he wanted to know if he had a case against the sender, or something.

    What the affidavit doesn’t say is that she recants the allegations in her complaint as having been untrue.

    Even if the files were not sealed – were they? I think they were never made public – this statement still doesn’t tell you what the allegations were. It’s designed to leave you guessing and hopefully conclude , it was just something taken the wrong way.

    Sammy Finkelman (20d02d)

  21. Megyn Kelly says she complained.

    But did she complain to “Human resources?” Or to people higher up?

    O’Reilly might know what he sis talking about.

    Sammy Finkelman (20d02d)

  22. Very near beer:
    https://www.mediaite.com/tv/megyn-kelly-is-no-hero-for-her-role-in-the-bill-
    oreillyfox-news-scandal/

    Some stories get covered with a pillow, others get on the head on treatment

    narciso (d1f714)

  23. “…forwarded to me certain explicit emails that were sent to him…”

    Great Caesar’s ghost! My wife has a case against me.

    Colonel Haiku (e7e3ee)

  24. nk #7:

    No matter how good the description, no matter how exotic the technique, Bill O’Reilly is going to be half of what’s going on in my head, and that kind of cuts down my desire to read the memoirs.

    Appalled (d07ae6)

  25. This is quibbling but technically did Wiehl file her lawsuit, Mr. French?

    If it was a draft complaint, then her attorneys prepared a complaint that could have been filed but it sounds as if they submitted it to O’Reilly and Fox first. Settlement negotiations were completed so filing the complaint was moot. If there had been a complaint filed, we could have gotten a copy from the court clerk unless its contents were sealed by the judge.

    DRJ (15874d)

  26. 19, if he’s really hurting for dough, there is one “Killing _____” that would be a world best seller!

    urbanleftbehind (b843ef)

  27. Appalled @24. I can see how a young, personable, confident man, such as you and I, might not have the same prurient interest in the memoirs as an old and ugly one, but the social and scientific value is tremendous in my view. And wouldn’t they make a great gift to our women? 😉

    nk (dbc370)

  28. O’Reilly says he’s “mad at God” and wishes he had more protection from this kind of stuff. He claims his money and position make him an easy target for bogus accusations.

    Other than blaming God, O’Reilly’s defenses are the same sort of non-denial hogwash typically offered up by serial mashers caught in the bright lights of public media exposure.

    Those falsely accused (Duke Lacrosse players) say so in no uncertain terms, they loudly proclaim their innocence. Of course, they aren’t initially believed – women ‘never lie’ about sexual abuse, especially rape. Or, so we’re informed by the experts, always almost all female.

    What we do know is that power corrupts and that powerful men often/sometimes use their positions to prey on women. Conversely, we know that some women seek the attention of powerful men for a variety of reasons: friendship, mentoring, marriage, career advancement, expensive gifts, travel, blackmail, litigation opportunities, etc.

    Often these men are sitting ducks, fools easily manipulated into compromised positions only to be fleeced in silent remorse. but sometimes they’re cunning abusers, arrogant, confident, and quick to take advantage, ready to unleash an experienced army of fixers, enablers, thugs, and corrupt lawyers, should the occasional complaint draw media attention.

    O’Reilly seems like a poster boy for the typical serial abuser, his record of similar misbehavior points the finger directly at him, he’s certainly arrogant enough, he’s surrounded by defenders and enablers at FOX NEWS, and his denials are weak tea.

    But, what are the accusations against O’Reilly? Did he use force, make threats, dangle promotions, stalk, or send unwanted emails?

    Let’s acknowledge that $32 Million doesn’t usually change hands unless egregious, life changing, harm is involved. If that’s not the case O’Reilly needs to disclose verifiable facts that prove he was taken to the cleaners, or shut-up and quit blaming God (for what? Making him a fool?).

    ropelight (bbe920)

  29. I never likely O’Reilly and got trashed by his fans when I wrote a book review on Amazon criticizing all the errors in “Killing Lincoln.” My lefty daughter gave it to me for Christmas thinking I must be a fan.

    $32 million is a lot of hush money.

    MeAgain Kelly is learning what Ailes did for her was worth $20 million but it is too late.
    Gretchen Carlson was a mediocre talent who got more from her suit than she would have from her career.

    Mike K (b3dd19)

  30. I would guess that Ms. Wiehl agreed to forego or significantly curtail her claims against Fox in exchange for Fox’s investigation materials regarding O’Reilly (which were no doubt created by lawyers, to bind them up in Work Product protection). In a case like this, which O’Reilly’s lawyers would otherwise turn into “he said-she said,” the institution can serve as a sort of credibility tiebreaker in the eyes of the jury.

    Leviticus (efada1)

  31. French also missed — as has almost everyone else commenting — the significance of the fact that this settlement was made on the basis of a draft, unfiled complaint without benefit of an ounce of pretrial discovery.

    But his overall point is right, as is his analysis of the “affidavit,” which is a fig leaf the size of a nickel plastered over a $32M embarrassment.

    Beldar (fa637a)

  32. Plaintiffs’ lawyers frequently use a draft, unfiled complaint to initiate negotiations when everyone involved knows that that the allegations are so damning and destructive that the defendant’s PR damage control will be a top priority as negotiations proceed.

    Leviticus (efada1)

  33. @ Leviticus (#30): Why do you think Fox gave Wiehl’s lawyers its investigation materials regarding O’Reilly? Do you have a source for that? Because I can’t imagine that ever happening voluntarily, and it couldn’t be compelled without a lawsuit on file, and even if Wiehl had tried to use such a lawsuit to compel Fox to produce it — either as a party-defendant or a non-party witness — you’re certainly right that Fox would have fought hard to block or at least limit the disclosures.

    Fox and O’Reilly were certainly legally adverse to each other, with Fox having a huge cross-claim against O’Reilly for contribution or indemnity; but both were adverse to Wiehl. My working assumption therefore is that O’Reilly and his lawyers certainly knew that Fox had a huge amount of investigation materials including (but not limited to) Bill O’Reilly, but that he didn’t have access to most of that; and that Wiehl and her lawyers likewise knew that Fox had a huge amount of investigation materials including (but not limited to) Bill O’Reilly, and that she and her lawyers didn’t have access to any of it. It was a giant known unknown that might, in the future, become at least partially known, but already presumed by both O’Reilly and Wiehl to be certainly to O’Reilly’s general disadvantage when and if revealed.

    Beldar (fa637a)

  34. Bubba the Love Loofa

    Pinandpuller (04d5ac)

  35. I agree with Leviticus’ observation (#32) that draft complaints are often used in pre-suit settlement negotiations, and it’s one of my favorite tactics as a plaintiff. In small cases, sometimes the defendant may doubt that the plaintiff will actually go to the trouble of hiring a lawyer who’ll actually draft a complaint; obviously, presenting the prospective defendant with the already-completed and ready-to-file complaint ends that doubt. (In the old days when one paid filing fees by check, I’d frequently cut a check to the clerk for the filing fees and include that, along with the other cover sheets and filing paperwork, along with the complaint, just to show that the whole package was already assembled and that the litigation was literally only awaiting the plaintiff’s final instruction to put it on file.)

    If you’re proud of your work product and confident that it will defeat both Twiqbal-type challenges to the sufficiency of the pleading, and even later summary judgment motions that will require evidence that would be sufficient for a jury to find in the plaintiff’s favor on every element of each of her claims, then you want to show that off up front, too, if only to eliminate the possibility in the defendant’s mind that “maybe the plaintiff’s lawyers won’t be good enough to get to trial against my lawyers.”

    You can also say things in a complaint filed at the courthouse that would be defamatory if said in a press conference, but that is deemed privileged (in this context, meaning “exempt from consequences,” not “secret”) when filed in a judicial proceeding. From the draft complaint, the defendant gets to preview what the press will have available to it when it begins reporting about the case, and if the complaint includes the very juicy stuff, the prospective headlines practically write themselves.

    Beldar (fa637a)

  36. Bill said “God, gimme a wink and a nod”
    God said, “man, ya must be puttin’ me on”

    Colonel Haiku (e7e3ee)

  37. Bill say, “No.”
    God say, “What?”
    Bill say, “Look I’m rich and a target and
    teh next time you see me comin’ you better run”
    Well God says, “Well, why you feelin’ so alone?”
    Bill say, “it’s lonely in teh No Spin Zone”

    Colonel Haiku (e7e3ee)

  38. Awkward, coronello, yes meagain is week tea.

    narciso (d1f714)

  39. “Leviticus (#30): Why do you think Fox gave Wiehl’s lawyers its investigation materials regarding O’Reilly? Do you have a source for that? Because I can’t imagine that ever happening voluntarily, and it couldn’t be compelled without a lawsuit on file, and even if Wiehl had tried to use such a lawsuit to compel Fox to produce it — either as a party-defendant or a non-party witness — you’re certainly right that Fox would have fought hard to block or at least limit the disclosures.”

    – Beldar

    I don’t have a source for it, no – pure speculation on my part. But strategically, giving her the materials would be a good way for Fox to get out of the case, and getting the materials would be a good way for her to get a huge settlement from O’Reilly. O’Reilly’s pockets are deep enough that she would know that she didn’t need the separate pocket – and having two different defendants opposing her presentation of the facts and trying to shoot holes in her case would put her in a far more tenuous position.

    If all of Fox’s investigations of O’Reilly’s past misconduct were bound up under work product protection, she might have had a very difficult time with a punitive damages argument. Getting the investigation materials – even in exchange for a full release as to Fox – gave her an open and shut liability argument and punitive damages argument as to O’Reilly, who has a very deep pocket.

    Leviticus (efada1)

  40. I find that I am more inclined to defend Trump than O’Reilly. Trump at least HAS a reason to be pompous.

    Kevin M (752a26)

  41. I get the feeling that O’Reilly is at best a doubles hitter.

    urbanleftbehind (b843ef)

  42. @ Leviticus: I follow your logic but still think it unlikely that Fox would voluntarily turn over to someone who could sue it the material that would implicate both Fox and O’Reilly. Even if all they turned over was information about O’Reilly, letting that out of their hands even once would waive all future work-product and attorney-client privilege claims as to that material, and even with contractual assurances that Wiehl’s lawyers wouldn’t further distribute the materials, they nevertheless would be of enormous future value to other claimants against Fox. I would never, ever recommend that to a client in Fox’s shoes.

    Beldar (fa637a)

  43. To explain: The investigative materials “nevertheless would be of enormous future value to other claimants against Fox” even if not handed over directly to such claimants by Wiehl or her lawyers, because the future claimant who’s asking for those materials and fighting with Fox over privilege would surely ask, “Who else has had access to these?” in response to which Fox would either have to commit perjury or watch its privilege claims evaporate.

    Beldar (fa637a)

  44. How broad is the definition of “work product” where you guys are? Up here, it’s what the lawyer produces, not what he discovers. If he interviews a witness, his notes of the interview are work product. (We’ll leave Brady aside for this discussion). If a policeman gives him copies of notes he (the policeman) took, those copies are not work product. Although I’ve had prosecutors try to hold back FBI rap sheets, of all things, as their work product.

    nk (dbc370)

  45. @ nk: I agree with you about work product, but I’ve done plenty of investigations in which I’ve made deliberate choices intended to either cloak some part of it in privilege or the opposite of that, depending on circumstances. This includes asking myself questions like: Do I bring an independent witness to use later to corroborate my own notes if the witness changes her story? Do I ask the witness to write out a statement? Do I write a statement for her to read and sign? Is it a sworn statement? Notarized? With or without a red ribbon?

    If I’m anticipating that the document is likely going to be something I’m going to want to use affirmatively later, I may opt for the red ribbon, and never have any expectation at all that the document is going to be withheld or any privilege asserted on it. I may mail it to the other side.

    If it’s my client’s nastiest skeleton that’s being discussed, I may do my best imitation of the movie version of Bob Woodward talking to Deep Throat in the parking garage, and never so much as commit the information to a file note.

    Fox’ investigation was run by Paul, Weiss, Rifkind, Wharton & Garrison, whose litigation lawyers I worked with back in my M&A days and who I came to have a high regard for. Its litigation department head, Arthur Liman, was one of Pennzoil’s star witnesses against Texaco, and the jury loved him (but hated his rival, Marty Lipton, who’d been Texaco’s star witness). I would expect them to be very conscious throughout the investigation process about what portions of the investigation ever hit paper (or digital form) at all, what portions were memorialized solely and carefully only in lawyer notes, and what was shown even to corporate employees within the privilege control group, much less to everyone from the company who they interviewed. They’d likewise have been super-thoughtful about whether and when they used audio and/or video recordings.

    I’m guessing — just a wild guess — that they made deliberate decisions to keep some investigative products entirely verbal among an extremely tight need-to-know group. But on the other hand, and supporting a contrary guess: Paul Weiss’ number one job was to document the thoroughness of its own investigation, and then the thoroughness of the Fox board’s resulting housecleaning and zero tolerance policy going forward, because I think otherwise this publicly traded company was looking at punitive damages exposures in future cases that might indeed rise beyond the threshold of SEC reporting materiality all the way up through bankrupting the company.

    When popped with a nonparty subpoena, or party document request, for the investigation results and underlying evidence — and thus put to the legal obligation to respond, including the obligation to assert and argue all privileges, including attorney-client and work-product — Fox would surely start by trying to assert and win on every privilege it could as to every scrap of paper or digital file or photo. It would be forced to create a privilege log identifying everything being withheld and asserting, on an item-by-item basis, every privilege that Fox seeks to assert, and as part of that it has to establish for each such item that it hasn’t previously waived the privilege by voluntarily producing it to someone else.

    I’m certainly not suggesting that Fox would have had a valid work product privilege on most of its investigative files. But there would normally be — and should be, simply out of professional prudence — a very strong disinclination on Fox’ part to voluntarily give to anyone anything from its investigation

    Beldar (fa637a)

  46. O’Reilly’s mad at God. A rich mick who’s at heart, a Puerto Rican.

    DCSCA (797bc0)

  47. Thank you, Beldar.

    nk (dbc370)

  48. @ Leviticus: To be clear, I absolutely agree with you 100% on this:

    O’Reilly’s pockets are deep enough that she would know that she didn’t need the separate pocket – and having two different defendants opposing her presentation of the facts and trying to shoot holes in her case would put her in a far more tenuous position.

    Those are excellent reasons for Wiehl and her lawyers to approach O’Reilly first with her settlement demand and its draft complaint. Indeed, as a potential co-defendant and cross-claim or third-party claim defendant along with Fox in future litigation, O’Reilly had and still has an incentive to keep as much of the information about her complaints from Fox, and thus might reasonably have been willing to pay more now to buy off Wiehl than if she’s gone to both O’Reilly and Fox directly with her draft complaint.

    Most importantly, it’s still much harder to make the case against Fox as employer than it would’ve been against O’Reilly as the direct harasser. The burden of proof is higher, and the costs of getting to the point of being able to meet it are vastly higher.

    Both O’Reilly and Wiehl assuredly factored into their settlement valuations the strong probability that if they didn’t settle, the Fox investigation results would end up being subpoenaed by Wiehl and, in large part, ordered produced after redactions for such privilege claims as would have been sustained. Both sides surely presumed — and were willing to gamble millions based on the presumption — that the Fox investigation would have further inculpated O’Reilly.

    But I don’t agree that Fox would have conceivably been willing to just hand over its investigative materials even if Wiehl had asked for that before making her demand of O’Reilly. I think instead that Fox was a complete bystander to this settlement based on the mutual self-interest of O’Reilly and Wiehl. And I also think that given the manifest corporate devotion to housecleaning and zero tolerance going forward, Fox would have been very disinclined to make any contractual agreement with a potential sexual harassment claimant against it which in any way smacked, even remotely, of paying off the claimant to buy her secrecy; that would leave them looking like board members of The Weinstein Company writing a liquidated-damages penalty into Harvey’s employment contract.

    Fox is happy to be protected by the one-recovery rule, and the likelihood of hold-harmless/circular indemnity provisions given by Wiehl to O’Reilly that would effectively eliminate the viability of a later lawsuit by Wiehl against Fox, even without a release. Now they’re watching the turning pages of the calendar — wishing they could do one of those corny old Hollywood transition scenes where the wind rips off multiple calendar pages in an increasing torrent to show the passage of time — while their various & sundry statutes of limitations begin to kick in.

    Beldar (fa637a)

  49. @ nk: You’re welcome. They don’t teach in law school a litigation course called, “How to Righteously and Ethically Manufacture (or Avoid Manufacturing) Evidence,” but if they did, I’d enjoy teaching it, having learnt it from my betters as a young lawyer and polished the skill ever since.

    Beldar (fa637a)

  50. You could probably team-teach it with me, for that matter. 😀

    Beldar (fa637a)

  51. One thing: O’Reilly might have been willing to pay a large sum of money, not because he thought punitive damages might possibly amount to that much, but because exposure could wreck his career, and cost him millions that way. Or maybe expose him to criminal liability.

    Sammy Finkelman (20d02d)

  52. I understand and appreciate your perspective on this, Beldar, so I’ll only add one thing: I’m not talking about Fox “voluntarily” giving its investigative information to anyone. I’m talking about Fox carefully negotiating the release of investigative information that was devastating to O’Reilly re: Wiehl, in exchange for a full release from Wiehl.

    We all seem to agree that a $32m settlement against O’Reilly is circumstantial evidence of A) O’Reilly’s clear liability, B) severe compensatory damages, and C) likely exposure to severe punitive damages (most likely entailing a string of offenses by O’Reilly while employed by Fox). If you were Fox, would you prefer to fight the plaintiff with respect to her pre-suit discovery requests, or give her the information she wanted on the condition that she release you from liability? Because I can see the latter option being very appealing for the plaintiff, as well.

    Leviticus (efada1)

  53. Leviticus:

    I say D) O’Reilly fearing that exposure could wreck his entire career and/or result in criminal charges.

    It doesn’t have to be connected with a realistic prospect of punitive damages that high.

    But rather with secondary effects of the lawsuit. A and B should be true, too, of course.

    Sammy Finkelman (20d02d)

  54. @ Leviticus, who asked (#53):

    If you were Fox, would you prefer to fight the plaintiff with respect to her pre-suit discovery requests, or give her the information she wanted on the condition that she release you from liability? Because I can see the latter option being very appealing for the plaintiff, as well.

    You’re hypothesizing that Fox traded something very important to it — investigative results, some portion of which might be privileged, and all of which would certainly be of interest to other, future claimants — in order to get a release. That would indeed in some circumstances be a rational price to pay, if — but only if — that price was ever asked. (I actually don’t think it would be remotely reasonable to do in these circumstances, though: O’Reilly’s judgment-worthiness is of interest not only to Wiehl, but to Fox when assessing O’Reilly’s ability to indemnify it, which would be yet another reason for Fox to refuse to make things easy for Wiehl if she came after Fox.)

    But I’ve seen nothing anywhere to suggest that Wiehl in fact made a claim against Fox, or that Fox asked for or got a release from her. The NYT story which broke this news said that Fox renewed O’Reilly’s contract despite knowing of this settlement along with other, previous ones, but there’s no hint in that story that Fox was ever presented with a claim against it.

    And for the reasons discussed above (harder case to make, gives O’Reilly another tactical ally to join in sniping at Wiehl, not needed because O’Reilly’s pockets were deep enough), there are indeed good reasons why Wiehl wouldn’t have made demand upon Fox.

    Beldar (fa637a)

  55. Lis Wiehl should not be confused with Liz Wahl. I had to check.

    Sammy Finkelman (02a146)

  56. Just because I like a thing doesn’t mean that thing ever shoulda happened.

    Steve57 (0b1dac)

  57. roller boogie?

    happyfeet (28a91b)


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