CBS inquiry into Moonves era hits snags
Some won’t talk in 3rd investigation; NDAs a concern
The #MeToo movement may have affected the CBS Corp. more than any other mass media company over the past year. After The New Yorker and the Washington Post published articles detailing accusations against high-ranking men at the network, CBS parted ways with Leslie Moonves, its chief executive; Jeff Fager, the longtime executive producer of “60 Minutes”; and Charlie Rose, one of its best-known anchors.
On Aug. 1 — nearly nine months after the network fired Rose and five days after The New Yorker published its first exposé about Moonves and the network’s news division — the CBS Corp. board announced it had hired two law firms, Covington & Burling and Debevoise & Plimpton, to conduct a companywide investigation. In addition to examining allegations involving Moonves and CBS News, the inquiry would also explore “cultural issues at all levels of CBS.”
Since then, investigators have spoken with more than 250 people and scheduled interviews with others, a CBS spokesman said in a statement to the New York Times.
Here is a look at how the investigation is proceeding.
Opinions of the inquiry vary among women inside and outside CBS:
Paula Reid, a CBS News correspondent who met with investigators last month, praised the inquiry in a Twitter post. “The attorneys I met with (all women) were professional, compassionate & thorough,” Reid wrote. “I encourage others at @CBSNews to speak w/ them.” Other current and former CBS staff members, who spoke with the Times on the condition of anonymity, described the investigators in positive terms.
Not everyone has been willing to meet with investigators. Sophie Gayter, who accused Rose of groping her when she worked at “60 Minutes,” said in an interview that she did not respond when contacted. “I don’t really want to talk to anybody who has any affiliation with CBS,” Gayter said. “I’ve been keeping my mouth shut, because I just don’t trust anything from that organization whatsoever.”
The scope of the lawyers’ work has not been limited to current and former CBS employees. Three of Moonves’ accusers interviewed by investigators were not employed by the network, according to their lawyer, Gloria Allred.
Nondisclosure agreements present a challenge:
As at any large company, a number of former CBS employees have signed nondisclosure agreements. Some agreements were routine parts of exit packages. Others were negotiated between the company and staff members who had serious complaints — for instance, age or gender discrimination.
After the investigation started, some former CBS employees bound by the more or less routine nondisclosure agreements expressed the worry that, by speaking with lawyers, they could open themselves up to being sued by CBS, according to people with knowledge of their thinking. In response, CBS provided written assurances that it would release them from the agreements, according to a spokesman for the CBS Corp. board.
That pledge failed to reassure those who had signed nondisclosure agreements because of serious complaints. Those documents included clauses that prohibited them from disparaging certain high-ranking male employees at CBS. According to multiple people with knowledge of recent discussions, the former CBS employees could be vulnerable to lawsuits filed by anyone whose name appeared in those agreements.
Ari M. Wilkenfeld, a litigator who has no involvement with the investigation and does not represent any of the women making allegations, said the law “is not particularly well settled in New York state” on whether individual people named in nondisparagement clauses would have standing to sue the former employees for violating their agreements with CBS.
CBS has not agreed to indemnify the former employees in this position, according to people with knowledge of discussions about the issue, meaning that the company would not cover their legal costs or damages in the event that they were sued by individuals.
Nancy Erika Smith, a lawyer who represented the former Fox News anchor Gretchen Carlson in her 2016 sexual harassment lawsuit against the company’s chief executive, Roger Ailes, criticized CBS’ lack of indemnification. “They have the resources, the legal resources, the financial resources, the power over people and the legal arguments to absolutely make women feel safe,” Smith said.
CBS had no comment on indemnifying ex-employees who signed nondisclosure agreements with nondisparagement clauses.
Two inquiries preceded the current investigation:
The attempt by CBS to examine its workplace culture has proceeded in fits and starts. In January — 10 months before the company initiated the current investigation — two board members dispatched Michael Aiello, a partner at the law firm Weil Gotshal & Manges, to interview Moonves.
The request came after Ronan Farrow of The New Yorker started to look into allegations against Moonves. When Aiello reported back to the board about his interview of Moonves, he spoke of “rebuffed advances,” and said the company had nothing to worry about, as James B. Stewart reported for the Times.
A second, more formal investigation started in April, when the corporate compliance and legal department of the CBS corporate arm retained the law firm Proskauer Rose to investigate Rose and the network’s news division.
By the time the firm got started in the spring, four months had passed since the publication of the Post’s investigative article about Rose, who was fired by the network the day after the story appeared. (Rose apologized for “inappropriate behavior,” adding that he believed some of the allegations against him were “not accurate.”)
The lead lawyers have relevant expertise:
Heading the Covington & Burling team is Nancy Kestenbaum, a former federal prosecutor and current co-chairwoman of the firm’s white-collar defense group. Kestenbaum led recent investigations of sexual abuse at Choate Rosemary Hall, the elite Connecticut boarding school, and the Brearley School, an all-girls private school in Manhattan.
Mary Jo White is leading the Debevoise & Plimpton contingent. A litigation partner, White was chairwoman of the Securities and Exchange Commission under President Barack Obama.
White led an investigation involving Ohio State University this year. Its highly successful head football coach, Urban Meyer, was under scrutiny for his behavior after he learned that an assistant football coach, Zach Smith, had been accused of domestic violence. As a result of the investigation, the university’s board suspended Meyer for three games.
White and her colleagues also investigated the University of Rochester’s handling of sexual misconduct complaints against a professor. In her report, which found that the professor had not violated school policy, White included the names of confidential witnesses. She later conceded that the breach had been an “error” and apologized.
The investigation led by Kestenbaum and White has been more active than the earlier effort. People connected to CBS News who had not heard from Proskauer Rose — including Gayter, who accused Rose of groping her — have been contacted by or have met with lawyers now working on the case.
The inquiry will help determine whether Moonves gets $120 million:
One goal of the investigation is to determine whether Moonves violated the terms of his employment. His contract stipulated he could be fired for cause only because of a felony conviction, fraud, failing to cooperate fully with a company investigation or violating company policies, including those concerning sexual harassment. If the results of the investigation allow the board to fire him for cause, CBS may avoid giving Moonves a $120 million severance package.
Working jointly, lawyers from Covington and Debevoise interviewed Moonves in August. During the session, as the Times reported, Moonves said he had sought a job at CBS for one of his accusers, who threatened to go public with her allegations, according to board members and others familiar with the matter. (Moonves has denied the allegations of sexual misconduct made against him and also denied offering a job to one of his accusers.)
When CBS board members learned of the job offer, they started negotiating his departure, a process that ended Sept. 9, when The New Yorker published a second article with new allegations of sexual misconduct against him.
Moonves, who had been CBS’ chief executive since 2006, left the company hours after the article appeared online.
Three days after Moonves left CBS, the network fired Fager, the “60 Minutes” executive producer. Allegations of sexual harassment against Fager had been included in The New Yorker’s Sept. 9 article, but he was fired for sending a text message threatening the career of a CBS News correspondent who was reporting on Fager for the network. (Fager had no comment for this article, but he has called the allegations against him “false.”)
The investigators are expected to complete their report by year’s end, and the CBS board is to decide on whatever action it will take no later than Jan. 31.