Judge Denies Sealing Confidential O'Reilly Settlements

This week, U.S. District Judge Deborah Batts, who is presiding over a federal defamation suit filed last year in New York refused to seal the confidential settlements reached between Bill O’Reilly and three women who accused the former Fox News host of misconduct. She rejected O’Reilly’s request to keep the agreements private, finding there is a long-established “general presumption in favor of public access to judicial documents.” She wrote that his concerns about disclosing “embarrassing conduct with no public ramifications” are not sufficient to trump the public’s right to view documents the court relies on to reach its decision in a case. “A possibility of future adverse impact on employment or the celebrity status of a party is not a ‘higher value’ sufficient to overcome the presumption of access to judicial documents,” Batts wrote. The judge noted, O’Reilly “asks the court to resolve a dispute by relying on the very documents he seeks to shield from public view.” Reportedly, the judge’s ruling creates an opening for attorneys to file the confidential agreements reached with the women who had accused O’Reilly of misconduct, and are now suing him for defamation for publicly dismissing their allegations as “politically and financially motivated” and part of a “smear campaign.” A former producer on The O’Reilly Factor who received a $9 million settlement was required to forfeit all audio recordings and written material — including notes, diaries, photographs, video recordings, letters and emails-- and to delete any computer files. She agreed to keep even the existence of such evidence confidential. Should the materials later become public, she was to disclaim them as counterfeit or forgeries and strict and complete confidentiality was the essence of this agreement. “The parties agree that the nature and terms of this settlement and agreement, including the existence of this agreement and the fact and amounts of any payments are to remain completely confidential.” A former Fox Business News host received a $3.25 million settlement from O’Reilly, a payout not previously disclosed. Under that settlement's terms, she could only disclose the amount of the payout to her tax advisers after the accountant signed a confidentiality agreement. The only person she told about the settlement was her husband. She, too, agreed to turn over any notes, recordings, emails, computer files or other documents dealing with any conversation she ever had with O’Reilly. The last woman received a settlement of about $100,000 as a junior producer at Fox News, in exchange for her silence. If anyone should ask what happened, she was to respond: “The matter has been resolved (or settled).” She also agreed not to disparage Fox News or any of its employees, including O’Reilly. The court opined that public would have no way to make sense of the its analysis of these claims with only partial or limited access to the settlement agreements. Just as with a Common Law right, she says, the First Amendment protects access to judicial documents if the documents “are necessary to understand the merits” of the proceeding. See full story here-- https://bit.ly/2EqvkA7 and link to ruling refusing to seal agreements here-- https://bit.ly/2GD1ZnZ

Sexual Harassment Mediation

What a season it has been for sex in the workplace. Sexual harassment claims involve a complainant (an employee), the accused (usually an employee), and the employer (or company). Complainants normally seek to address being violated or abused in some way and need to feel normal again. Complainants want unwelcome behavior to stop, but often don't want to put their career in jeopardy by filing the complaint, and would rather continue doing his or her job as though nothing has happened. They also may want the employer to make up for past loss of a promotion due to the alleged harassment or even back pay. Mediation can help avoid further emotional trauma, including a public trial. Likewise, the accused may welcome maintaining confidentiality of the charges to the greatest extent possible, and to keep his or her job. The accused may even find exoneration possible. Finally, all employers want to avoid liability, while maintaining productivity and upholding company policies. Because mediation remains confidential, negative career repercussions are less likely to occur. With a resolution, a victim may resume his or her job with the company. The process also allows the victim to air frustrations and self-determine remedies that allow him or her to be made whole again. These remedies are often not available in traditional litigation and can include apologies and promises of help in attaining other employment. Similarly, employers can agree to reinstate a complainant or award an previously withheld promotion. Harassers can be transferred, fired, or reeducated. Mediation can meet the accused's objectives, as well, with an opportunity to clarify his or her side of the story. The confidentiality of the proceedings allows settling the situation without public disparagement. If the charge resulted from a misunderstanding, the miscommunication can be worked out without becoming more polarized. Mediation also allows the accused to make amends for the unintentional harm inflicted. Employers find disposing of these cases through mediation quicker and less expensive than litigation and the process provides less disruption of the work force. Finally, mediation promises less stress than litigation for all parties involved. See more here-- E. Whittenbury Vol. 43, Number 4, Business & Economic Review, Moore School of Business, University of South Carolina http://bit.ly/2AhpzGM