From Publishing Perspectives:
Even as John Bolton’s The Room Where It Happened: A White House Memoir continues to roil the American political scene, its publisher, Simon & Schuster, now has seen yet another move against it on the month’s upcoming release, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. by Donald Trump’s niece Mary.
Publishing Perspectives readers will remember that an attempt to block Mary Trump’s book was lodged late in June in the Queens County Surrogate’s Court. The judge quickly rejected the case and the book is set for a release on July 28. You may recall the growing level of interest in the world publishing community in this, as the International Publishers Association issued a statement of support for Simon & Schuster.
On Tuesday afternoon (June 30), however, a new court action temporarily blocked publication of the book.
We’ll walk through the pertinent steps here because, as Simon & Schuster’s attorneys at Davis Wright Tremaine led by Elizabeth McNamara are writing overnight, a successful halt to publication of the Mary Trump book “would be unprecedented in this country,” a violation of what the world publishing community refers to as the “freedom to publish.”
. . . .
As Maggie Haberman and Alan Feuer wrote at The New York Times on Tuesday, “Judge Hal Greenwald of the New York State Supreme Court issued the temporary restraining order until a hearing on July 10 to decide whether [Mary] Trump’s book … violated a confidentiality agreement she signed with other members of the Trump family in connection with a dispute over the estate of Fred Trump Sr., the president’s father.”
Following the news of the court’s action, the publishing house released to various news media a short statement of regret about the temporary restraining order (sometimes called a “TRO”), reading: “We are disappointed that the court has granted this temporary restraining order. We plan to immediately appeal this decision to the appellate division, and look forward to prevailing in this case based on well-established precedents regarding prior restraint.”
Similarly, an attorney for author Mary Trump also filed a statement, objecting to the move as “a prior restraint on core political speech that flatly violates the First Amendment.”
. . . .
In the newly filed opposition to the temporary restraining order—a document called a memorandum of law—Simon & Schuster writes that the action “identifies no misconduct by Simon & Schuster.
“Instead, Mr. Trump”–Robert Trump, the president’s brother who is leading the family’s court action–”believes that simply because he alleges that Ms. [Mary] Trump violated a nondisclosure agreement, one that Simon & Schuster did not know about and was not a party to, he may force Simon & Schuster to stop the presses and throw the brakes on the delivery trucks, halting publication of the book.
“Such an outcome would be unprecedented in this country. Mr. [Robert] Trump has not even attempted to make the requisite showing that the public would be harmed by the publication of the book and, absent that showing, his requested injunctive relief must be denied.”
As the Times’ Haberman has pointed out on CNN’s New Day this morning (July 1), it’s in that statement that we learn that the publishing house was unaware of a nondisclosure agreement relative to Mary Trump.
She has pointed out that the publishers’ filings also reveal that “the book is already in its printing.”
Indeed, the memorandum of law asserts, “Simon & Schuster did not learn anything about Ms. [Mary] Trump signing any agreement concerning her ability to speak about her litigation with her family until shortly after press broke concerning Ms. Trump’s book about two weeks ago, well after the book had been accepted, put into production, and printing had begun.”
The memorandum goes on to say that as of June 30, 75,000 copies already were printed and bound, “and thousands have already shipped to sellers.”
. . . .
Simon & Schuster CEO Karp—a former journalist with the Washington Post, the Miami Herald, and the Providence Journal—recounts in his affidavit, filed overnight with the memorandum of law, that S&S won an auction for Mary Trump’s book. He says he understands that nine or 10 other publishers were in contention for it.
In signing an “individual guarantee” with Simon & Schuster as part of her deal, Karp writes, “Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement
“The agreement also includes Ms. Trump’s representation that these warranties are ‘true on the date of the execution of this agreement’ and ‘true on the date of the actual publication’ of the book. Further, the agreement provides that the ‘publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.’”
Karp goes on to say that nothing has given Simon & Schuster any reason “to doubt the accuracy” of Mary Trump’s warranties and that in a meeting with her about her proposal for the book, “She revealed that she was the primary source for the Pulitzer Prize-winning New York Times article “Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father.”
Update
An appellate court has reversed a New York trial court’s order stopping the publication of the Trump book, so S&S has told its printers to keep running the presses 24/7 and shipping books as soon as they’re boxed to flood the world copies with before another judge stops it from publishing.
Link to the rest at Publishing Perspectives
From various and sundry online publications, it appears that Simon & Schuster won an auction for the book on May 14. In its filing yesterday, six weeks following the end of the auction, Simon & Schuster reported that “75,000 copies already were printed and bound” and “thousands” have been shipped.
Is the publisher’s inventory/shipping system so crude that it doesn’t know how many books it has shipped? That might cause a Simon & Schuster authors to question the accuracy of their royalty reports.
The quoted publishing contract language:
“Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement”
So, apparently Ms. Trump may have conveniently forgotten about her previously-signed nondisclosure agreement that the Trump heirs claim prohibits her from making some information in the book public.
Simon & Schuster is shouting about the First Amendment, but the only right it has to publish Ms. Trump’s book is because Ms. Trump purportedly gave S&S the right to do so. S&S has no independent right to publish and the magic of publishing doesn’t give it the right to publish something when the author didn’t have the right to publish that same document.
The S&S contract conveniently includes a clause in the Trump contract stating “publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.”
In effect the publisher is saying it will rely solely on the author’s representations and warranties in the publishing agreement and won’t look at anything that might seem fishy about whether the author is prohibited from writing the book and giving S&S the right to publish it.
Ms. Trump is certainly bound by what PG will describe as a “willful blindness” clause, but the Trump heirs are not. The fact that Ms. Trump has previously involved in litigation with other heirs would raise a red flag for any attorney representing a publisher who was planning a tell-all book about the Trump family if the publisher were trying to avoid litigation with a notoriously litigious family.
S&S is essentially arguing that it is an innocent bystander that has spent money to publish a book and waving the First Amendment to protect itself.
However, PG contends there are only so many red flags that S&S can ignore and still claim its sanctity under the First Amendment.
PG would argue that the OP description makes S&S appear to be acting much more like a co-conspirator with the author to assist the author in violating the privacy of the Trump family and commit an act that the author apparently promised not to do – open the family secrets to the whole world – and for which the author received a lot of money from family members who wanted privacy and the family secrets kept secret.
PG is far from a fan of President Trump, but confidentiality agreements are quite common in American business and personal contracts.
Should a person desire to work for Apple or Microsoft or CitiBank or Goldman Sachs or General Motors or The United States Army or Simon & Schuster in a position that would permit that individual to access important information about the organization that would benefit competitors of the organization, that person would be expected to sign the sort of confidentiality and non-disclosure agreement that Ms. Trump apparently signed.
If a person violates a confidentiality agreement with the Army, that person could charged with treason. PG doesn’t know if treason still merits a firing squad or not, but whatever the punishment, he expects it would be severe.
To be clear, PG is not suggesting that Ms. Trump or anyone at Simon & Schuster be executed or sent to prison.
However, PG does suggest that the knowing behavior of both of those parties is not the sort of thing The First Amendment should reward with a lot of money or anything else.
“Simon & Schuster reported that “75,000 copies already were printed and bound” and “thousands” have been shipped. Is the publisher’s inventory/shipping system so crude that it doesn’t know how many books it has shipped?”
Maybe the slow boat from china hasn’t arrived yet?
Or got lost on the way?
Or dock workers saw “Trump” on the paperwork and dumped the boxes overboard?
Maybe the “thousands” were shipped by air to help reviewers in the media pick out the “juicy” parts ahead of actual release? Books embargoes don’t seem to apply to all political books.
I have to slightly disagree with PG’s position on the confidentiality clause, for two reasons.
(1) There’s solid caselaw that not only is the publisher not bound by the principal’s confidentiality agreement with a third party (Snepp being a great example; so is the Pentagon Papers) in the context of a prior restraint, but that even awareness of that confidentiality agreement doesn’t matter. For good or for ill, publishers are “special” in this sense. Self-publishers, however, are not.
The one exception to this is if the confidentiality agreement relates to advocacy of unlawful activity. If one looks carefully at the pleadings in the Hitman/Paladin Press fiasco, it’s pretty clear why Paladin Press got smacked hard — but only after publication.
Whether S&S could be forced to put all revenues into a constructive trust after publication is a completely separate question, and there S&S’s knowledge would be relevant. Not for prior restraint, however.
(2) And as to the confidentiality agreement itself, I’m dubious. I haven’t seen the actual agreement, but I have represented a lot of people who’ve been handed a confidentiality provision as a required element for any settlement — usually when their own resources are exhausted. This wasn’t a confidentiality agreement for employment or a business deal; it was a confidentiality agreement imposed by a party with a superior resources position during litigation that essentially accused that other party of fraud, or at minimum culpable abusive breach of duty and trust. It’s two decades ago. And courts tend to be much more scrupulous about construing such confidentiality agreements against the drafter… and 1980s and 1990s litigation-confidentiality agreements haven’t fared all that well in the New York courts in the past decade or so.
But like I said, I’m only dubious; I haven’t seen the document. I strongly suspect that it’s impenetrably written at best. And as noted above, it’s not like there’s no remedy at all — a constructive trust on S&S’s entire revenue stream (not just profits!) may well be available, and is probably also provided for in that agreement.
Dr Trump also has an excellent argument for changed circumstances limiting the proper scope of the confidentiality agreement — changed circumstances resulting entirely from the personal choice to seek political office, made over a decade after the dispute was ended.
I feel a little more enlightened, now that the Appellate Division (the first court of appeals) has issued its decision reversing the TRO as to S&S but allowing it to stand as to Dr Trump until the hearing on 10 July (PDF). The veil is partially lifted because Judge Scheinkman quoted the confidentiality provision on pages two and three…
…and it doesn’t say or restrict nearly what has been claimed. Bluntly, it was bad lawyering and some lawyer or law firm should be notifying his/her/their professional liability carrier.
And that’s before getting to enforceability, particularly regarding both changed circumstances and the “publisher problem.” The cases cited by Judge Scheinkman are both adamant that a publisher is not a mere agent of an author and frequently cited outside of New York itself. (After all, notwithstanding the Manhattan echobox, there are publishers not based there!) Judge Scheinkman also notes that there are other remedies available than prior restraint.
Wow, this is fascninating stuff. Sounds like another book in the making: Trump v Trump. Or will there be a TRO on that?
The more I think about this… are court rulings (including Appelate Division) in the public domain? Can they be re-published by anyone?
Yes, judicial opinions are public domain. You’ve just stuck your nose into a battle regarding PG’s former employer… and bad-faith litigation tactics combined with misuse of intellectual property rights all around…
If you want a slightly-off-point-but-illuminating look at the nearly two century old government edicts doctrine, you can do much worse than the two months old opinion in Georgia v. PublicResource.org, No. 18-1150 (U.S. 28 Apr 2020), in which the Supreme Court lays out the history of demanding that definitive statements of the law, such as judicial opinions, are not eligible for copyright. “The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all.” Banks v. Manchester, 128 U.S. 244, 253 (1888) (cited in PublicResource.org and citing cases back to the 1830s). The rationale is that since judicial statements are on behalf of the public at least as much as on behalf of any party, the public owns those statements.
Excellent reply. Thank you.
Thanks for posting the opinion, CE.
Good points as usual, C.E., and another example of how contrary legal views (yours backed by case law, mine backed by rant fever) can substantially improve understanding of the underlying issues.
That said, I doubt Dr Trump was an orphaned waif when she signed the confidentiality agreement and likely had high-quality legal advice prior to doing so. Unlike many confidentiality agreements, the one she signed brought her a lot of money as well.
But perhaps she was down to her last million and was in desperate need of an immediate and large financial infusion.
In the lurid history of big-money fights among heirs to a very large estate, the Trumps must surely belong in the top ranks. If the Trump Family Saga were made into a mini-series, no one would believe it.
Not even close, I’m afraid. One need not go as far as Jarndice v. Jarndice (Bleak House, the only Dickens I can stand and the only one in which deus ex machina is reasonably well-founded). Let’s just consider an ex-Playboy Bunny marrying a Texas oil billionaire in his 80s, a jealous “stepson” fifteen years his “stepmother”‘s senior (along with other relatives who belonged as extras on Dallas), and ponder bankruptcy court jurisdiction versus the judicially created “probate exception” to federal jurisdiction just for the fun of it. Marshall v. Marshall, 547 U.S. 293 (2006). Then there’s the Jackie Kennedy Onassis fiasco. And…
Never mind. Maybe the rich are different: They have no sense of when to quit.
I’m wondering why everyone, from the New York Times to PG, has such difficulty referring to Mary Trump properly. She is Dr. Trump, or Dr. Mary Trump – as much as Fauci is Dr. Fauci or Dr. Anthony Fauci.
It is sad to see how easily the honorific she spent time earning is dumped. Common, but sad.
It’s not as if they didn’t know it – PhD is right there on the cover after her name.
She’s a Trump.
PhD in what? Lots of people with PhDs easily dump the honorific they spent time earning.
I live in a retirement community stuffed full of PhDs AND MDs.
The practice is that we don’t use titles.
But I’ve noticed a consistent assumption that the women don’t have them, in a place where about half of the women do.
What I hate most is the patronizing use of first names by care staff.
As for MD vs. PhD, depends on the subject. The New York Times is making a value judgment it is not qualified to make. Calling a PhD in Aeronautical Engineering ‘Mrs.’ something is sort of a slap in the face, as is mentioning her cooking talents, as was done by the NYT to great uproar in the obituary and story on Dr. Yvonne Brill, NASA scientist (https://www.newyorker.com/news/amy-davidson/yvonne-brill-and-the-beef-stroganoff-illusion). I had the honor of being in the Society of Women Engineers in NJ with Dr. Brill, and followed the brouhaha closely.
Calling a PhD in Aeronautical Engineering ‘Mrs.’ something is sort of a slap in the face,
An engineer, chemist, or geologist in the oil field who was referred to as anything but Ed, Charlie, or Gretta would be truly unsual. They typically showed a lot of respect for the people they worked with and didn’t expect any special consideration. I worked for five year with one guy who had a PhD in civil engineering and I never knew it.
Not in day to day terms, no.
But my experience has been that in formal scenarios it has generally been considered good manners to introduce PhDs as “doctor so and so”.
Especially around bureaucrats and politicians.
And Academics, but those are almost always in formal mode.
(Probably to distinguish them from mundane Bachelors and Masters. Those degrees I’ve never seen mentioned, probably to avoid “embarrassing” us. 😉
It could be politics. But it’s also American culture, and thus a newsroom style. Compare what Americans consider a “real doctor” (a medical doctor) versus a “doctor who doesn’t count” (a Ph.d): Ben Carson vs. Jill Biden. To Americans, a neurosurgeon is a real doctor, and definitely should be addressed that way. A holder of a doctorate of education, though? Mr. or Ms. unless you’re acting in a professional capacity. Otherwise, most people consider it snooty or unhinged*** to insist upon “Dr.”
The NYT’s style guide sides with American cultural practice in how doctors are to be referred to in stories. So, plausible deniability: if the NYT is following their own style guide, then Mary Trump slots into the “doctor who doesn’t count” category, as she holds a Ph.D instead of an MD. A story where she’s not acting in a professional category can therefore skip calling her “doctor.” Case closed? Well…
How the New York Times refers to Ben Carson vs. Jill Biden: TL;DR: Mrs. Biden is Dr. Biden, and Dr. Carson is Mr. Carson.
One of the two is Republican, and the other is a Democrat, and referring to a holder of an Ed.D as “Dr.” when the story isn’t about her in her Ed.D capacity is in direct contradiction to the NYT’s own style guide. Yet the NYT repeatedly violated their own rules in favor of Biden. Former Second Lady Lynn Cheney, says the article, is never referred to as Dr. Cheney, even though she has a doctorate in British literature. The rule-breaking of the style guide should have broken in favor of Carson over Biden, but oddly it did not.
So the the answer, “it’s politics” holds water, too. I also think the writer of the article at the link may have a point, about ignorant reporters and lazy editors. They could easily slot into the Ben Rhodes cohort of “27-year-olds who know nothing.”
***”I am DOCTOR Amy Bishop!!!”
My wife has a PHD. She doesn’t hide it, but hates when people call her Doctor outside of a narrow range of circumstances.
When casually called Doctor, most Americans assume “medical doctor”, so not calling every person with a PHD “doctor” unless that person is speaking in an authoritative capacity keeps the average person less confused.
Agreed, on the saving confusion part. I could picture a scenario where someone hears her called “Dr” and assumes she can help out in a medical emergency. And I agree that if your wife was acting within the narrow range of circumstances, it could be rude to not to call her Dr. in that case.