?3me LAW
in MULLIN, RC.

 

24o CLAREMONT Avenue . NEWJERSEY 0704.2.
Dec. 4, 2017 TEL (973) 733*7507 FAX (93) 733'9394 Contact: Evergreen Partners, inc.

FOR IMMEDIATE RELEASE (908) 322m1100
infochevergreenprcom

Former Fox News Producer Rachel Witlieb Bernstein Sues Bill O?Reilly
and Fox News for Defamation and Breach of Contract

New York City, Dec. 4, 201'? Former Fox News producer Rachel Witlieb Bernstein has sued Bill O?Reilly and
Fox News for defamation and breach of contract. According to the filing, O'Reilly and Fox dispa raged Ms.
Bernstein in the press, falsely portraying her as a politically motivated liar and an extortionist.

The Complaint, filed in United States District Court for the Southern District of New York, alleges that Ms.
Bernstein settled claims against O?Reilly and Fox News in 2002. The settlement agreement provided that the
parties would not disparage one another and that, if asked, the parties would say only that ?The matter has
been resolved (or settledl.?

Ms. Bernstein is represented by Neil Mullin and Nancy Erika Smith, of the Montclair, NJ. law firm Smith Mullin,
the firm that represented Gretchen Carlson in her suit against former Fox CEO Roger Ailes.

The lawsuit claims that an April 1, 2017 NY Times expose of numerous settlements by O?Reilly and Fox,
revealed that Fox entered a settlement agreement with Ms. Bernstein in 2002. The lawsuit notes that Ms.
Bernstein was not the source for this revelation.

Ms. Bernstein says in the Complaint that she complained repeatedly about O?Reilly to HR and top Fox News
executives, but they did nothing to help her or to stop O?Reilly. Ultimately, the Complaint alleges, O?Reilly
made it impossible for Ms. Bernstein to work at Fox. The Complaint states that despite this mistreatment, Fox
News, through its parent company, 215I Century Fox, falsely claimed in response to the NY Times article that
"no one complained? to the company?s hotline. The lawsuit answers that there was no hotline in existence
during Ms. Bernstein?s employment.

?This cynical falsehood about a nonexistent hotline was made to bolster O?Reilly?s claim that the women who
received settlements must have fabricated their claims or they would have complained,? said Ms. Smith. ?But
Ms. Bernstein did complain. There is ample evidence that Fox News, with the complicity of top executives,
enabled the abuse of women for many years then silenced them with non?disclosure agreements and non?
disparagement clauses,? said Ms. Smith.

Mr. Mullin added, ?Knowing Ms. Bernstein and O?Reilly?s other victims are afraid to speak out because he and
Fox forced them to sign non~disclosure agreements, O?Reilly and Fox have made false and disparaging claims.
They should release all victims from their NDAs and let the truth out. it is cowardly to publicly attack these
women knowing they have been subjected to contractual provisions requiring absolute silence.?

The lawsuit states that as a direct result of the widespread distribution of disparaging, defamatory and false
claims against her, Ms. Bernstein has suffered and will continue to suffer harm to her reputation, severe
emotional distress, physical sickness, and loss of income.

 

 

 

Case Lt Filee weave? Page it e? 1e

UNETEEB STATES CGURT
SOUTHERN DISTRECT OF NEW YGRK

 


RACHEL WITLIEB BERNSTEIN, 
index No.
Plaintiff,
v.
BILL and
FOX NEWS NETWORK LLC,

Defendants.


 

Plaintiff, EMCHEL WETMEB through her attorneys, Smith Mullin,
P.C., aileges as follows:
STATEMENT
1. This is a civil action by the plaintiff, Rachel Witlieb Bernstein (?Plaintiff? or
?Ms. Bemstein?), against defendents Bill O?Reilly (??Defendailt" or ?fO?Reilly?U and Fox
News Network LLC (?Defendant? or ?Fox News?) for breach of contract, defamation, breach

.ol?the covenant of good faith and fair dealing, and tortious interference.

PARTEES
2. Plaintiff, Rachel Witlieb Bernstein, is a resident and citizen of California.
3. Defendant Bill O?Reilly is a citizen of New York State residing in Long
Island.
4. Fox News is a cable television news and entertainment company that operates,

among other things, the ox News Network, ox Business News, Foxnews.com and, until

recently, Fox News I_.atino.

 

 

 

Case sates-asses tiresomeot Lt Fited woos? ease of 3,4

5. Fox News maintains its principal place of business in New York, New York,

where the acts complained of occurred.
JUMSDECTEGN

6. This Court has diversity jurisdiction over this action pursuant to 28 US. C. 
1332 in that the plaintiff?s citizenship is completely diverse form that of the defendants and
the matter in controversy exceeds the sum of $75,000.00 exclusive of interest and costs.

EM

7. Venue is proper in this District under 28 US. C. 1391(b)(2) because
defendant Fox News is based in New York City, defendant Bill O?Reilly lives in Long Island,
New York, the contract at issue was entered in. New York City, the contract provides that
New York law applies, and the conduct at issue took place in New York. City.


(BREACH OF CONTRACT)

8. In July 01?2002, plaintiff Rachel Wit?eb Bernstein entered into a Settlement
Agreement and Release releasing Fox; News and Bill O?Reilly of all claims, including claims
ofdiserimination. The Agreement provides as follows:

5(f) Non-Disparaaement: Witlicb and mt each agree not to
disparage, trade libel, or otherwise deliame each other, and in
the case ot?Fox, Witlieb agrees not to disparage, trade libel, or
otherwise defame its of?cers or employees, including without
limitation, Bill O?Reilly. In the case of Witlieb, for purposes of
this Paragraph. the term ?Fox? shall mean the released
parties referenced in Paragraph 4(a) above, including Bill

O?Reilly, and said released parties agree not to disparage, trade
libel, or otherwise defame Witlieb.

 

 

 

Case Sacrament Filed reread? Page 3 or as

9. The Agreement further provides:

Confidentiality: Wittlieb (sic) and Fox, and their reapective
legal counsel, and any other person acting on Wittlieb (sic) or
Fox?s behalf, or through either of them, shall not disclose to
any person the contents of this Agreement or the facts or
allegations that gave rise to this Agreement. If asked, each of
Wittlieb (sic) and Fox and their respective legal counsel may
say only ?The matter has been resolved (or settled)?, without
elaboration. Notwithstanding the foregoing, however, Wittlieb
(sic) and Fox, and their respective counsel, shall not be
prohibited from making such disclosures of these matters to
any person who has a legal necessity to know (as, for example,
in the case of a valid subpoena) and to their respective
accountants, and in Wittlieb?s (sic) case, to her immediate
family, but in each such instance Fox and Wittlieb (sic) shall
speci?cally make best e?brts to prevent those persons from
repeating those disclosures to any other person. Either Wittlicb
(sic) or Fox?s breach of this provision shall constitute a
material breach of this Agreement.

10. Ms. Bernstein has in no way violated any of the provisions of the Settlement
Agreement.

ll. On April I, 2017, The New York Times reported that ?Bill O?Reilly Thrive-s
at Fox News, Even as Harassment Settlements Add Up.? The article by Emily Steel and
Michael S. Schmidt revealed that defendant O?Reilly andfor defendant Fox News had paid
live women about $13 million to forego litigation and never speak about what O?Reilly did to
them. The article specifically mentioned plaintiff Bernstein by name:

Fox News has been aware of complaints about inappropriate
behavior by Mr. O?Reilly since at least 2002, when Mr.
O?Reilly stormed into the news room and screamed at a young
producer, according to current and former employees, some of

whom witnessed the incident.

Shortly thereafter, the woman, Rachel Witlieb Bernstein, le?:
the network with a payout and bound by a con?dentiality

 

 

 

Case Sentiment Lt Ftted sateen? Page it of its

12.
Times story.

13.

agreement, people familiar with the deal said. The exact
amount she was paid is not known, but it was far less than the
other settlements. The case did not involve sexual harassment.

Ms. Bernstein was not the soothe of the information printed in The New York.

In the April 1, 2017 New York Times article, Mr. O?Reilly violated the non-

dispsragement clause and defaulted Ms. Bernstein by stating:



Just like other prominent and. controversial people, I?m
vulnerable to lawsuits from individuals who want me to pay
them to avoid negative publicity. In my more than 20 years at
on News Channel, no one has ever tiled a complaint about me
with the Human Resources Department, even on the
anonymous hotline.

In a statement published on O?Reiily?s website and published by Eli;

Hollywood Reoorter on April 21, 2017, defendant O?Reilly also stated:

15.

But most importantly, I?m. a father who cares deeply for my
children and who would do anything to avoid hurting them in
any way. And so I have put to test any controversies to spare
my children.

"the worst part of myjob is being a target for those who would
harm me and my employer, the Fox News Channel. Those of
us in the arena are constantly at risk, as are our families and
children. My primary efforts will continue to be to put forth an
honest TV program and to protect those close to me.

These statements also were published in whole or in part by numerous media

outlets including, but not limited to, Newsweek, the Washington Post, NBCnews.com, New

York Magazine, Money Magazine, CNNeom, Vanity Fair, the LA Times, the

Washington Examiner, Huf?ngton Post, and the Chicago Tribune. These statements were

published to millions of people.

 

 

 

Case Document 3 Filed miles/it? Page 5 of is

16. In the April 1, 2017 New York Times article, Mr. O?Reilly also said:

The worst part ol'my job is being a target for those who would
harm me and my employer, the Fox News Channel.

Defendant Fox News participated in and authorized its employee Bill O?Reilly
to breach the contract by disparaging-and detaining Ms. Bernstein.

18. Defendant Fox News published a statement through its parent company, 21*?
Century Fox, defending defendants O?Reilly and Fox on April 1, 2017, the same date The
New York Times story exposing O?Reilly?s years ot?abuse of women was published:

Notwithstanding the fact that no current or former ox News
employee ever took advantage of the 21"? Century Fox hotline
to raise a concern about Bill O?Reilly, even anonymously, we
have looked into these matters over the last few months and
discussed them with Mr. O?Reilly. While he denies the merits
of these claims, Mr. O?Reilly has resolved those he regarded as
his personal resoonsibility. Mr. O?Reilly is fully committed to
supporting our efforts to improve the enviromneni for all our
employees at Fox News.

19. The Fox News statement is false. In fact, Ms. Bernstein repeatedly complained
to Fox Human Resources, Bill Shine, and other Fox executives, about Mr. O?Roilly?s
mistreatment and both defendant Fox News Network LLC and O?Reilly knew that before
making the statements above.

20. The statement by Fox News is deliberately misleading and in breach ofFox?s
agreement not to diSparage Ms. Bernstein. There was no hotline at Fox during plaintiff?s
employment.

21. The statement by Fox News also violated the Con?dentiality Clause in the

Agreement.

 

 

 

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22. This Fox News statement was published by numerous news outlets throughout
the country making it available to millions of people.

23. In the statements above, defendant O?Reilly portrayed himself as a ?target?
and claimed that complaints against him are extortionate. This is false. Infect, he is a serial
abuser and Ms. Bernstein?s complaints about him were far ?om extortionate.

24. Defendant O?Reilly was employed by Fox News when he breached the non-
diaparagement and con?dentiality clauses of Ms. Bemstein?s Settlement Agreement.

25. Defendants Fox and. O?Reilly materially breached the Agreement by making
statements other than the agreed-upon statement and by issuing false, disparaging and
defamatory statements.

26. Defendants knew that plaintiff was forced by defendants to sign the non-
disparagemcnt and con?dentiality clauses and would be afraid to answer defendants? false,
disparaging and defamatory statements.

27. Fox News breached its contract with plaintiff by allowing and authorizing its
employee Bill O?Reilly to disparage and defame Ms. Bernstein and to make statements other
than those to which the parties agreed.

28. On September 13, 2017, defendant Bill O?Reilly again falsely stated to Lhe

Hollywood Reporter that ?no one was mistreated on my watch.? This statement falsely

 

portrayed plaintiff as a list.
29. Also on September 13, 2017, defendant O?Reilly stated to The Hollywood
Reporter that ?once you get a famous name, and once you?re in the political arena, the

combination is devastating. If they can get you, they?re going to get you." O?Re-illy

 

 

 

Case Basement a ?tted 312/8437 Page of its

presented himself as a victim of a vast conspiracy and not a serial abuser and coward hiding
behind the non?disclosure agreements he forced his victims to sign.

30. O?Reilly portrayed. Ms. Bernstein in a false light, defamed and disparaged her
character, calling into question her motives for reporting O?Reilly?s abuse to HR and
ultimately being forced out at Fox News with a Settlement Agreement.

3 t. On October 21, 2017, Emily Steel and Michael Schmidt revealed in another
New York Times article that in January 7, defendant O?Reilly paid Fox News analyst Lis
Wiehl $32 million in exchange for a release of claims of repeated harassment, a non?
consensual sexual relationship, and receiving unwanted pornographic emails or texts. The
article stated that the settlement required Ms. Wiehl to sign a non-disclosure agreement and
to destroy communications between O?Rcilly and Wichl.

32. The New York Times also reported that in February 2017, one month after
O?Reilly agreed to pay Ms. Wiehl $32 million in exchange for a Release of claims against
him and the company, on News, aware of the settlement, signed a four year contract with
O?Rcilly paying him $25 million a year.

33. In resPonse to the new reporting, Mr. O?Reilly made more false and
defamatory statements when questioned about the numerous settlements he and Fox had
entered into with women, stating never mistreated anyone.? in fact, he mistreated Ms,
Bernstein frequently and in front of numerous witnesses. Defendant?s false statement
disparagcd and detained Ms. Bernstein by portraying her as a liar.

34. in October of 2017, O?Reilly added that the claims against him were

?politically and ?nancially motivated.? He also stated that he had ?resolved matters privately

 

 

 

{38:38 Eil7~?v~?39?83 Filed Page 8 63?? 255;-

because he wanted to protect his children from the publicity.? These false statements
portrayed plaintiff in a false light and disparagcd her character, in fact calling her a liar and an
ext'ortionist.

35. In fact, Mr. O?Reilly is the liar. I-le mistreated Ms. Bernstein. She was forced
out of her job at Fox News and paid a settlement because of his mistreatment. She did go to
HR and other company executives to complain about him several times. Fox News took no
action to protect plaintiff from O?Reilly. There were many witnesses to her mistreatment.
She was not politically or ?nancially motivated to raise the claims of abuse.

36. In October 2017, Mr. O?Reilly made several public appearances to promote a
new book. During those public appearances, he stated that the complaints made against him
at Fox News by women who received settlements were ?a political and ?nancial hit job.?
This defamatory and disparaging statement is false. Ms. Bernstein settled her claims and left
Fox News because of severe mistreatment and abuse by Mr. O?Reilly, as he knows.

37. Defendants Fox News and O?Rcilly knew Ms. Bernstein?s settlement was one

 

of the numerous examples of settlements entered in order to keep quiet O?Reilly?s abuse of
women and the atmosgahere at Fox which enabled such abuse. Despite this knowledge,
defendant Fox News issued a statement designed to disparage and defame Ms. Bernstein by
falsely claiming that she never complained about O?Reilly?s abuse.

38. In fact, Ms. Bernstein was never made aware of any ?anonymous hotline?
because it did not exist in 2002. However, plaintiff did complain in person to Fox HR, Bill
Shine and other For?: executives about O?Reilly?s abuse. Others at Fox con?rmed Ms.

Bernstein?s complaints. Fox News made deliberate and false claims that ?no one

 

 

 

Case Boeameet F?ted mitts/3.? Page a at is

complained? in order to bolster the false statements ofO?Reilly that all of O?Reilly?s victims
made up their claims.

39. Defendants O?Reilly and Fox knew when they made their press statements
that when O?Reilly and Fox News entered a settlement agreement with Witlieb to resolve her
claims of abuse by defendant O?Reilly there was no ?anonymous hotline? in existence.

40. On October 23, 201.7, defendant O?Reilly stated on his podcast (hypocritically
called ?No Spin News?) and/or posted on his website the following false, disparaging and
defamatory statements referring speci?cally to the settlements reached at Fox: ?Smears in
this country now . . . allegations are facts. No doubt about that. Papers don?t check anything
out, they just print whatever allegations they want to print. And it?s devastating, and that
brings me to the main point of this story. The New York limes knows that I cannot
speei?caily refute anything. In 20 years, 6 months at the Fox News Channel, I resolved three
situations. Three I resolved. Andi did that to protect my children from harm. And I would
do anything, anything to protect my children from harm. So it was three in 20 years and 6
months that I resolved. Part of the resolution is nobody talks about it. Now, obviously that?s
been broken on the other side. But I can?t break it. Because if I do, that opens everything all
up again and. it?s insane.?

41. On October 21, 2017 the New York Times reported that defendant O?Reilly
was recorded on October 18, 2017 making the following false, disparaging and defamatory
statement in a taped (ammo-record interview with the New York Times: ?I?ve been in the
business for 43 years and I?ve never had a complaint ?led by anyone at 12 different

companies.?

 

 

 

 

Case iil7~ctf~?g?i~83 m?ctit?t??ent 1 Filed iZIQ?itft?? @5198 it} at 24-

42. On October 23, 2017 defendant O?Reilly stated on his podcast and/or posted
on his website the following false, disparaging and defamatory statement: ?The bottom line is
that my enemies who want to silence me have made my life extremely dif?cult and have hurt
me in the marketplace. Anybody who doesn?t like me will believe all the stuff the smear
merchants put out, but I?m interested in you, I?m. interested in people who are fair-minded.?

43. Defendant O?Reilly was speci?cally referring to plaintilfBernstein in making
these false and disparaging statements she is one of the ?situations? O?Reilly resolved in
order to avoid a public trial where witnesses under oath would testify about his abusive
behavior. Her settlement is falsely portrayed by defendant O?Reilly as based on lies which are
part of a conspiracy designed to ?smear? him mad ?hurt: him in the marketplace.?

44. These statements were designed to disparage plaintiff by falsely stating that
plaintiff never complained about O?Reilly?s abuse, by claiming that O?Reilly did nothing
wrong, by claiming that plainti? is ?smearing? him in order ?to silence? him, and by claiming
that plaintiff violated the Settlement Agreement.

45. On October 23, 2017 defendant O?Reilly continued to Spin false stories on his
podcast and/or his website, falsely portraying himself as a victim, a truth teller, and an. heroic
father (while he is none of those things), by stating: ?You know, am I mad at God? Yeah,
I?m mad at him. I wish I had more protection." He went on to give advice which he has
obviously and repeatedly ignored: ?Never give up telling the truth. Never give up protecting
your family I?m going to go down ?ghting and I?m going to go down telling the truth."

46. By disparaging plaintiff, defendants Fox News and O?Rcilly breached the

contract they entered with plaintiff in 2002.

10

 

 

 

Case ancestors? 3: Filed 3.2mm? Page is. of to

47. By making statements other than the statement agreed-npon, defendants Fox
News and OiReilly breached the contract they entered with plaintiff in 2002.

48. As a direct and proximate result of the aforesaid breaches of contract, plaintiff
has suffered and will continue to suffer damages to her reputation, severe emotional distress,
physical sickness, and loss of income.

49. Defendants O?Reilly and Fox are jointly and severally liable for the breach of
contract.

COUNT 


50. Plaintiff repeats and incorporates the allegations set forth above as if fully set
forth herein.

51. Defendants ox News and O?Reilly willtiilly, recklessly and maliciously
published the aforesaid statements of and conceming the plaintiff.

S2. Defendants Fox News and O?Reilly negligently published the albresaid
statements of and concerning the plaintiff.

53. The aforesaid statements falsely portrayed the plaintiff as an extortionate liar
who was never mistreated and who had never complained to 1? ox News about O?Reilly?s
abusive behavior.

54. The aforesaid statements are defamatory because they expose plaintiff to
public contempt, ridicule, aversion and/or disgrace.

55. Defendants? defamatory statements are not protected by any privilege.

56. Plaintiff is not a public ?gure.

11

 

 

 

Case woeemeet 3; Filed meet? siege direct and proximate result of the aforesaid defamation, plaintiff has
suffered and will continue to suffer damages to her reputation, severe emotional distress,
physical sickness, and loss of income.

58. Defendants O?Reilly and Fox News are jointly and severally liable for the
breach of contract.

CGUNT THREE

(BREACH OF COVENANT 0F G083 FAITH
FAKE DEALING BY 

59. Plainti?irepeats and incorporates the allegations set forth above as if fully set
forth herein.

60. By and through the actions described above, delbndants breached the implied
covenant of good faith and fair dealing embodied by law in the Agreement.

61. As a direct and proximate result of the aforesaid breach of the covenant ol~
good faith and fair dealing, plaintiff has suffered and will continue to suffer damages to her
reputation, severe emotional distress, physical sickness, and loss of income.

62. Defendants O?Reilly and Fox are jointly and severally liable for the breach of

 

contract.
CGUNT FOUR
INTERFERENCE BY WEEKLY)
63. Plaintiff repeats and incorporates the allegations set forth above as if fully set
forth herein.

12

 

 

 

 

1 Filed Page 23 et if;

64.

By and through the actions described above, defendant O?Reilly teltiously

interfered with the Agreement between Fox News and plaintiff.

65.

As a direct and proximate result of the aforesaid tortious interference, plaintiff

has suffered and will continue to suffer damages to her reputation, severe emotional distress,

physical sickness, and loss of income.

WEEREFORE, defendants are jointly and severally liable to the plaintiff for:




(0)


(I)


All damages recoverable for all causes of action released in the contract
materially breached by defendants;

reputationa] damages;

economic damages;

damages for emotional harm and stress;
punitive damages;

attomeys? fees and costs of suit; and

Such other relief as the Court may deem equitable and just.

13

 

 

 

Case 1:17?w?Gg?83 ?acum?m 3 mm 12mm? Page 14 g? 

FGR JURY TMAL

Plaintiff demands a trial by jury in this action on all claims that are triable by ajury.

   

 

3mm MULLEN, RC.
BY: 


NANCY ERIKA SMITH (to be
admitted pro hac vice)

240 Claremont Avenue

Montclair, New Jersey 07042

(973) 783?7607; fax: (973) 783-9894

420 Lexington Avenue, Suite 300
New York, New York 10170
(212) 297-6134; fax: (917) 677-3697
(mnullin@smithmullin.com)

Dated: December 4, 2017 

l4