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.”
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.