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Non-Apology Apologies, Part 2

by John Lande
September 2016

From the Indisputably blog, Read Part 1 here

John Lande

It seems that there are a lot of stories about questionable apologies in the news lately.  I don’t intend to discuss all of them, but here are a few more thoughts about some of them.

21st Century Fox

First, some updates about the 21st Century Fox apology.  I thought it was bland but some commentators, like this one, thought it was stunning, even “extraordinary.”  The reason she was so impressed is that defendants rarely apologize in sexual harassment cases, illustrating Professor Jonathan Cohen’s point I mentioned in myoriginal post.  So it’s not that this was a stunningly good apology.  Rather, it was stunning because corporate defendants that have done wrong almost never acknowledge their wrongdoing.

The $20 million settlement with Ms. Carlson and the $40 million severance package for Mr. Ailes probably seem like a lot of money to you and me.  But to Fox (which earned $8.3 BILLION in net income last year),  these payments are mere “rounding errors”  (less than 1% of the net income), according to a plaintiff’s lawyer quoted in the commentary.

Fox News personality Geraldo Rivera issued an apology of sorts for initially dismissing Ms. Carlson’s claims.   In a Facebook post, he wrote that he is “filled with regret” about his statements about her and others who made allegations against Mr. Ailes.  He also apologized to reporter Gabriel Sherman, who doggedly investigated Mr. Ailes and Fox News for several years.

I think that Mr. Rivera’s apology is less than satisfying for two reasons.  First, he complained that it was unfair for other news organizations to continue to “report, repeat and regurgitate every detail in this melancholy saga.”

This view seems hypocritical for a reporter, especially considering the major significance of this story and the fact that Fox quickly settled with Ms. Carlson and others precisely to prevent disclosure of important facts.  The non-disclosure of information about the case is aggravated by Fox’s aggressive use and enforcement of confidentiality agreements.  This story is particularly newsworthy because of the prominence of Fox and Mr. Ailes in the media and politics.  There is evidence that Mr. Ailes repeatedly harassed employees over a long period of time, threatening retaliation against anyone who complained.  This is a case of serious wrongdoing – to the tune of $20 million – and the public deserves to know more about what actually happened and what individuals were responsible.

Mr. Rivera also stated that he lost a book contract due to his “relatively flattering” portrayal of Mr. Ailes in a draft of the book.  It is understandable that this loss would prompt some serious reflection.  But it raises doubts about how he would have reacted if his statements hadn’t cost him anything personally.

Wells Fargo

Wells Fargo provides another example of a corporate non-apology.  It created thousands of “sham accounts” over a period of years.  Following investigation by prosecutors and regulators, it refunded money to customers and paid a substantial fine, as described by the New York Times.

“Wells Fargo was flowing with regrets on Friday, taking out ads in nearly a dozen newspapers saying the bank took “full responsibility” for creating sham bank accounts without its customers’ permission.

“The bank’s chief executive officer, John Stumpf, even called one prominent Democrat in Congress to express his willingness to assume personal responsibility for the mess. The bank fired at least 5,300 employees and refunded millions of dollars to customers.

“But with its banking regulators, Wells Fargo was not as contrite. The bank agreed to pay $185 million in fines and hire an independent consultant to review its sales practices, but it was able to settle the investigation into the questionable accounts without officially admitting to any of the suspected misconduct.

“It was classic Wall Street. . . . [F]requently, regulatory cases are settled without a bank having to admit doing anything wrong.

. . .

““It’s very troubling,” Senator Jeff Merkley, an Oregon Democrat and member of the Banking Committee, said in a telephone interview Friday. “Wells Fargo is saying they take responsibility, but they aren’t actually taking responsibility in the official sense.”“

Sometimes defendants are reluctant to publicly admit fault because they fear that this could complicate their legal positions and increase their liability exposure.  From the NYT article:  ““It ends up being a win-win,”’ said Robert Hockett, a professor at Cornell Law School. “The regulator gets some kind of payment from the accused, and the accused gets to ease the risk of private plaintiff litigation by not admitting to guilt.”“

Professor Hockett’s concept of win-win (at least as quoted by the NYT) overlooks the public interest in accountability, which takes a loss when defendants who break the law evade moral and potential legal responsibility in this way.  Assuming that the defendants correctly calculate that they reduce their liability by refusing to admit fault, plaintiffs presumably are cheated out of some of the recoveries that they deserve.

We understand the practicalities of these cases as the defendants usually would not settle if they had to admit fault.  If we were lawyers representing prosecutors or plaintiffs, we would probably agree to such settlements as preferable to all the downsides of continued litigation in most cases.  But we should acknowledge the social costs of legal denial that Professor Cohen illuminates.

Georgetown University

The case of Georgetown University provides a contrast with Fox and Wells Fargo.  Prodded by protests, Georgetown University plans to apologize for having sold slaves in the 19th Century.

Georgetown convened a Working Group on Slavery, Memory, and Reconciliation, which produced a 104-page report.  It provides a detailed factual account of the events and includes a recommendation for an apology.  In addition, Georgetown plans to “giv[e] preferred status in admissions decisions to descendants of the people the school sold, creat[e] a memorial to them on campus and push[] its professors to study ways to address lasting racial injustices.”

University President John DeGioia said that Georgetown will undertake an ongoing effort to “engage directly with descendants of slaves and with members of the Georgetown community. . . . This will include soliciting feedback, determining priorities for the work going forward, and creating processes and structures to enable that work.”

Commentator Courtland Milloy is unsatisfied.  He noted the following statement:  “We provide care and respect for the members of the Georgetown community: faculty, staff, alumni, those with an enduring relationship with Georgetown,” University President John DeGioia said last week. “We will provide the same care and respect to the descendants.”

Mr. Milloy responded: “The same?  As if a legacy of slave labor in the making of Georgetown was the same as a legacy of freedom to enroll in the school?  Working under the lash without pay and meager rations the same as earning a diploma and getting a good-paying job?  Being sold down the river to even more brutal slave camps and families torn apart, the same as having the means to buy a house, support a family and pave the way for the next generation?”

I don’t see anything on the Georgetown website about an amount of money that it would invest in its reconciliation efforts.  Mr. Milloy argued that Georgetown has an endowment of more than $1 billion and it should invest a substantial amount in this effort.

Karran Harper Royal, a descendant of one of Georgetown’s slaves who was sold, also wants Georgetown to do more.  She wants it to engage more with the descendants, partnering with a new foundation dedicated to reconciliation, and to offer descendants full scholarships, not just a preference in admission.  She noted that Georgetown almost missed an opportunity for reconciliation when it did not initially invite descendants to the announcement of the findings of the study group.

The responses of Mr. Milloy and Ms. Harper Royal reflect questions about Georgetown’s sincerity and dissatisfaction with the amount of resources that it will devote to this effort.  Although Georgetown’s working group recommended engagement with descendants in the future, the working group apparently did not include any of the descendants and they were not initially thought to be invited to the announcement of the working group’s report.  These lapses undermined the effectiveness of Georgetown’s efforts at reconciliation.

Hillary Clinton

We are now in the midst of a media flurry surrounding Democratic presidential nominee Hillary Clinton’s statement at a fundraising event about Donald J. Trump’s supporters.  She said:

“You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?  The racist, sexist, homophobic, xenophobic, Islamaphobic — you name it.  And unfortunately there are people like that.  And he has lifted them up.  He has given voice to their websites that used to only have 11,000 people — now have 11 million.  He tweets and retweets their offensive hateful mean-spirited rhetoric.   Now, some of those folks — they are irredeemable, but thankfully they are not America.

“But the other basket — and I know this because I see friends from all over America here — I see friends from Florida and Georgia and South Carolina and Texas — as well as, you know, New York and California — but that other basket of people are people who feel that the government has let them down, the economy has let them down, nobody cares about them, nobody worries about what happens to their lives and their futures, and they’re just desperate for change.  It doesn’t really even matter where it comes from.

“They don’t buy everything he says, but he seems to hold out some hope that their lives will be different. They won’t wake up and see their jobs disappear, lose a kid to heroin, feel like they’re in a dead-end. Those are people we have to understand and empathize with as well.”

Read in context, Ms. Clinton’s point was that her supporters should empathize with some of Mr. Trump’s supporters rather than condemn them all.

The next day, she tweeted a limited apology.  She said that gross generalizations are never a good idea and she regretted characterizing “half” of Mr. Trump’s supporters.  Most of her statement listed the reasons why she considers his campaign deplorable and it said that she “won’t stop calling out bigoted and racist rhetoric in this campaign.”

People’s satisfaction probably is related to their general views of Ms. Clinton and Mr. Trump.  Not surprisingly, Republican officials denounced her original statement and presumably are not at all satisfied with her apology.

On the other hand, liberal blogger Greg Sargent wrote a post entitled, “Spare Me the Phony Outrage over Clinton’s ‘Basket of Deplorables’ Remark.”

People without strong partisan identification may react based on the news coverage they get.  Some reports don’t mention or de-emphasize Ms. Clinton’s remarks about the second “bucket” of Trump supporters.  People hearing such reports are likely to be less satisfied than those who hear more about the second bucket.

Some Analysis

Quality of Apologies

These cases (including some from part 1) – Donald J. Trump, Fox, Geraldo Rivera, Ryan Lochte, Nate Parker, Hillary Clinton, Wells Fargo, and Georgetown – provide an interesting group for comparison.  All seem problematic to varying extents.

Mr. Trump did not seem to be serious about his apology considering his facial expressions when he gave the apology, lack of specifics about what statements he was referring to, and later continuation of the behavior he said he regretted.

Fox gave a brief apology, which was remarkable only because virtually no corporate defendants actually apologize.  Mr. Ailes, whose public statements have been vociferous denials and who acquiesced to Fox’s settlement, has not apologized at all.

Wells Fargo issued a legalistic acceptance of responsibility but made no admission of wrongdoing.

Ms. Clinton believes that her error was in poor communication and that she should have said that “most” Trump supporters deserve empathy because they feel that no one cares about them but that “some” Trump supporters are deplorable.  Thus she presumably believes that her error was primarily technical rather than moral.

Mssrs Rivera, Lochte, and Parker seemed to be struggling to express genuine  remorse (to varying degrees) but have stumbled in the process.

Georgetown also seems to have stumbled a bit.  However, its detailed factual accounting and plans for a formal apology and an ongoing inclusive process may be the start of a promising dispute system design effort for restorative justice.

Effect of Apologies on Wrongdoers

So far, this analysis has focused only from the perspective of outside observers.  Apologies can and should have redemptive effects on the wrongdoers as well.  Presumably this should largely correspond to the degree of the wrongdoers’ remorse.

Mr. Ailes seems to have no remorse.  The events in this story may affect him more by impressing on him the financial and reputational costs of wrongdoing (or at least the costs of getting caught).

Similarly, Mr. Trump seems to have no real remorse for his statements that hurt others.  His apology seemed to be a political tactic and its effect on him probably is a function of his assessment of how much it achieved his political objectives.

Ms. Clinton similarly has no fundamental remorse.  Rather, she regrets that her statement was sloppy and provoked unnecessary criticism.  The effect on her is likely to prompt her to be more cautious in making future statements.

Fox and Wells Fargo, huge corporations, do not seem particularly interested in redemption and seemed to take their actions primarily to minimize further damage.

The process for individuals (at least those who are not as high profile as Trump, Ailes, and Clinton) undoubtedly is different from large corporations.  It is hard to know how the process has affected Rivera, Lochte, and Parker.  Indeed, the process for them may unfold over an extended period of time and never be truly known by the public.

Georgetown will be an interesting case study lasting for years and even decades.  If Georgetown seriously engages key stakeholders and takes their input to heart, the process could result in deep constructive changes in the institution and individuals who deal with it.

Given the great polarization in US society these days, we need much more reconciliation.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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