Suit: O’Reilly’s breach of confidentiality ‘especially corrupt’

A federal judge in New York has ordered the disclosure of three confidential settlements arranged by former Fox News host Bill O’Reilly. The disclosures were ordered as part of a lawsuit brought by three former Fox News and Fox Business Network employees who claim O’Reilly defamed them after secretly settling their sexual harassment complaints.

Last year, the New York Times reported that O’Reilly had settled five sexual harassment cases for a total of $13 million, with the caveat that the allegations and the settlements be kept confidential. However, the defamation lawsuit claims that O’Reilly himself disclosed information that was required to be kept confidential by both parties. He used his platform, the former employees claim, to defame the plaintiffs as “liars, extortionists and political hit-women” and attacked their claims as “meritless,” “unfounded,” “politically and financially motivated,” “garbage,” “bullshit” and “crap.”

The defamation suit was brought late last year by a former junior producer at Fox News, Rachel Witlieb Bernstein. A former “O’Reilly Factor” producer, Andrea Mackris, and a former Fox Business Network host, Rebecca Gomez Diamond, later joined the suit.

The three women claim that they signed settlements with arbitration and confidentiality agreements with O’Reilly between 2002 and 2011. Those agreements had some surprising terms:

• The women would provide all evidence of their claims to O’Reilly for destruction, including any audio recordings, computer files, written materials, and more.
• In at least one case, the plaintiff was directed to lie — even under oath or in legal proceedings — and claim that any evidence that came to light was either forged or counterfeit.

“The breach of the arbitration agreements’ confidentiality provisions was especially corrupt and material,” the brief continues, “because O’Reilly claimed or implied publicly that plaintiffs had no evidence of wrongdoing while actually knowing that he had insisted in the settlement agreements that all three plaintiffs provide or destroy all of the physical evidence of his harassment of them.”

The terms of the confidential settlements came to light after a judge ruled that O’Reilly had “not even come close to rebutting this First Amendment presumption” of public access to court documents. Instead, the disgraced host sought to keep the agreements private by citing general privacy interests and a wish to avoid exposing embarrassing conduct.

As we have discussed before, it is an open question whether confidentiality or nondisclosure agreements are enforceable at all if they have terms that are unlawful or contrary to public policy. That question probably won’t be answered in this case because the plaintiffs are alleging, in part, that O’Reilly breached and voided the agreement.

A fourth woman, former Fox News anchor Laurie Dhue, filed a separate defamation lawsuit against O’Reilly last month.

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