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Nearly 15 years ago, a former O’Reilly Factor staffer named Andrea Mackris settled a sexual harassment lawsuit against Bill O’Reilly for millions of dollars. Now, Mackris is back in court with O’Reilly, accusing him of breaching the settlement’s confidentiality provision and defaming her in his response to news reports about old settlements. In court papers filed Wednesday, her attorneys are now raising ethical issues, too.
If this case isn’t arbitrated, O’Reilly argues that dismissal is warranted because his statements about being the victim of false smears by those with a liberal agenda are not “of and concerning” Mackris, Bernstein and Diamond. The former cable news pundit also argues that his comments were opinion and thus not capable of defamatory meaning.
Then, there’s one last argument.
“O’Reilly maintains that he never harassed any of the Plaintiffs,” stated a motion to dismiss. “Should the Court determine that the Plaintiffs appropriately pled defamation, it may still dismiss the Plaintiffs claims on the ground that such statements were true. … This is particularly relevant with respect to Mackris’s claims, because the statements O’Reilly allegedly made with regard to Mackris are in accord with Mackris’s own public statements. Mackris has conceded in a public statement that ‘no wrongdoing whatsoever’ had occurred. O’Reilly cannot, as a matter of law, be held liable for defamation for statements that, to the extent they concerned Mackris at all, merely reaffirmed Mackris’s own public statement.”
But Neil Mullin, the attorney for Mackris, is now calling out this “no wrongdoing” statement as essentially worthless. He points to the circumstances of the 2004 agreement to settle various allegations including that O’Reilly told Mackris about sexual fantasies during phone conversations.
In arguing that O’Reilly can’t rely on the settlement agreements as a defense for defamation, Mullin writes that the statement that supposedly came from Mackris was actually written by the lawyers in the case.
“What defendant hides from the Court is the fact that the statement issued in 2004 was part of an overreaching, unethical Settlement Agreement,” writes Mullin.
“First, and most-shocking, Ms. Mackris’ lawyer changed sides — agreeing to become O’Reilly’s lawyer — while negotiating the Agreement,” he continues. “This profoundly unethical conflict left Ms. Mackris virtually without legal counsel.”
It doesn’t stop there.
“Notably, the Agreement requires Ms. Mackris to lie — even in legal proceedings or under oath — if any evidence becomes public, by calling valid evidence ‘counterfeit’ or ‘forgeries,'” states the opposition motion.
Benedict Morelli was Mackris’ former lawyer.
“Every step we took was to negotiate the best possible deal for Ms. Mackris,” he says in response to the new court papers. “We worked extremely hard to secure a significant financial settlement for her. The claim that I did not vigorously represent her, or that I represented O’Reilly during or after the settlement process, is absolutely false.”
From the looks of the agreement, O’Reilly aimed to ensure absolute confidentiality so he made Mackris and her lawyers turn over all audiotapes, videotapes and digital recordings. The parties expressly agreed that “should any Materials become public by any means including through third parties after the date of this Agreement, all parties will disclaim them as counterfeit or forgeries.”
There wasn’t any carve-out for legal proceedings, and while that might have been implied, it’s the basis for the assertion that Mackris was required to lie in legal proceedings should circumstances dictate perjury.
Also revealed in court papers Wednesday — after a judge rejected O’Reilly’s demand that settlement agreements should remain sealed — is that a few years after Mackris executed her settlement, a dispute arose over whether there was a breach. The parties came to an amendment to the settlement in 2007, and one of the stipulated points was that Morelli and his firm would not represent another woman named Rudi Bakhtiar in sexual harassment claims against Fox News nor any other person against the company.
But perhaps even more interesting (and not noted by Mullin on Wednesday) is that the amendment to the settlement happened after a mediation before Marc Kasowitz.
As in, not only Donald Trump’s lawyer, but also the attorney who later came to represent O’Reilly himself. In fact, after The New York Times revealed in April 2017 that O’Reilly had paid out millions to settle allegations from various women, Kasowitz put out a statement that “Bill O’Reilly has been subjected to a brutal campaign of character assassination that is unprecedented in post-McCarthyist America. This law firm has uncovered evidence that the smear campaign is being orchestrated by far-left organizations bent on destroying O’Reilly for political and financial reasons.”
So Kasowitz once mediated a dispute over O’Reilly’s hush agreement. His firm would also make news in April 2017 for accidentally forwarded O’Reilly defense strategy emails to a reporter.
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