O’Reilly files extortion lawsuit.–

Bill O’Reilly, whom I generally find unwatchable, is in trouble and is fighting back.

Matt Drudge has the details on an extortion lawsuit filed by Bill O’Reilly against Andrea Mackris, a FOX associate producer, and her lawyers, the Morelli law firm. According to the O’Reilly filing, the producer alleged sexual harassment by O’Reilly and may have taped him making offensive statements. Then she threatened O’Reilly with exposure unless he paid $60 million.

Defendants demanded $60 million in hush money to keep quiet and never once lowered this outrageous, extortionate demand. At one of the meetings, Morelli allowed the Fox and News Corp representatives to read a draft of a harassment complaint (“the draft complaint”) that he threatened to file on Mackris’s behalf. The draft complaint contained several lengthy block quotes of statements that O’Reilly allegedly made to Mackris. The length of the quotes and the specific verbiage used made it appear that Mackris was taping O’Reilly during the conversations. Morelli, though, refused to permit the Fox and News Corp representatives to have a copy of the complete draft complaint, providing them only with an excerpt.

The draft complaint does not assert that either Fox or O’Reilly has caused Mackris to suffer any adverse employment action. Nor does it assert that Mackris complained to anyone in authority at Fox about any unwelcomed or inappropriate conduct by anyone. Moreover, Defendants never claimed otherwise in any of the aforementioned telephone conversations or meetings.

Further underscoring the extortionate nature and intent of Defendants’ conduct, Morelli holds himself and his firm out as employment law specialists. He therefore must be presumed to know that given the absence of any adverse employment actions taken by Fox or O’Reilly against Mackris (e.g., termination, demotion, reduction in salary), her failure to complain to Fox’s Human Resources Department about O’Reilly alleged harassment will be fatal to her harassment claims in accordance with the decisions of the U.S. Supreme Court and the courts of New York.

Morelli also knows that there is no possible justification for seeking a $60 million settlement of his client’s claims even if the alleged few conversations occurred. For example, the Morelli Firm’s website boasts of major victories in employment discrimination and harassment cases none higher, though, than “$3.75 million for a woman forced to have sexual relations with her boss” (Exhibit D), which plainly involved conduct far more egregious than that alleged by Mackris. Accordingly, Morelli and presumably Mackris know that their demand that Fox pay $60 million to keep this matter out of the court and out of the media is nothing short of attempted extortion.

The extortive nature of Defendants’ demands and the baseless nature of Mackris’s claims are further revealed by the recent September 7, 2004 e-mail that Mackris sent to a friend at CNN who asked, “How are things?” Just three weeks before Morelli’s September 29 letter and years after her claimed tribulations began, Mackris responded:

to answer your question, things are: wonderful, amazing, fun, creative, invigorating, secure, well-managed, challenging, interesting, fun and surrounded by really good, fun people. i’m home and i’ll never leave again.

This suit raises interesting issues because someone with an underlying legal claim may threaten to expose it to reach a reasonable settlement. Yet if the amount sought is so substantially out of line with the injury and the threat to embarrass is a big part of the threat, then a criminal charge of extortion can be established.

The chief example here is the Cosby case, where Autumn Jackson, who may have been Cosby’s daughter, threatened exposure unless he paid her $40 million. Despite having some possible claim for support as a child, she was convicted because of the excessiveness of her claims and the threats of exposure.

Further, in State v. Harrington, 260 A.2d 692 (Vt. 1969), a lawyer for the wife in a fault-based divorce action was convicted of attempting to extort a settlement by threatening to expose a relevant part of the case, the husband’s extramarital affair. The lawyer was also disbarred. The threat to go to the newspapers was explicit and the amount sought may have been excessive.

My knowledge of blackmail and extortion law is on the criminal side, where my views on extortion were adopted by the US Supreme Court in US v. Evans (1992). Unfortunately, this is a tort action, in which O’Reilly has several tort theories–a field outside my expertise. So there may well be a good criminal charge that could be brought against Mackris and her lawyers, depending on the excessiveness of the amount sought and the use of the threat of exposure. This potential criminal offense probably has some tort analogues, but I’m not the one to judge.

In the Cosby case, the 2d Circuit Court of Appeals initially overturned the convictions for a too broad instruction to the jury and then upheld the convictions because the improper instructions were harmless error. They describe their view of the law in two opinions:

[From 180 F.3d at 81:] The evidence at trial was plainly sufficient to support verdicts of guilty had the jury been properly instructed. Even if Jackson were Cosby’s child, a rational jury could find that her demand, given her age (22) and the amount ($ 40 million), did not reflect a plausible claim for support. The evidence supported an inference that Jackson had no right to demand money from Cosby pursuant to a contract or promise and no right to insist that she be included in his will. The jury thus could have found that her threat to disclose was the only leverage she had to extract money from him; that if she sold her story to The Globe, she would lose that leverage; and that if Cosby had capitulated and paid her in order to prevent disclosure, there was no logical guarantee that there would not be a similar threat and demand in the future. Thus, had the jury been instructed that the “with intent to extort” element meant that defendants could be found guilty of violating § 875(d) only if Jackson’s threat to disclose was issued in connection with a claim for money to which she was not entitled or which had no nexus to a plausible claim of right, the jury could permissibly have returned verdicts of guilty on that count.

[From 196 F.3d at 387:] We reasoned, however, that not all threats to reputation accompanied by demands of money are inherently wrongful, see id. at 67, and we inferred that Congress meant § 875(d) to criminalize only such threats as are wrongful, see id. at 67-70. We concluded that the court’s instruction “erroneously allowed the jury to find defendants guilty of violating that section on the premise that any and every threat to reputation in order to obtain money is inherently wrongful,” id. at 71-72, and that the court should instead have informed the jury of the wrongfulness element by instructing that § 875(d) prohibits obtaining money or a thing of value from another by use of threats to reputation only if the defendant has no plausible claim of right to the money demanded or if there is no nexus between the threat and the defendant’s claim, see 180 F.3d at 71.

2d UPDATE: Now Andrea Mackris’s complaint is at the Smoking Gun. I have read only parts of it, but it is detailed and extremely embarrassing. If her allegations are true, then O’Reilly should be in deep trouble, whatever the merits of his lawsuit for extortion.

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