Free Speech

Mary Trump Temporarily Enjoined from Publishing Memoir—But Injunction Lifted as to Her Publisher

"While Ms. Trump unquestionably possesses the same First Amendment expressive rights belonging to all Americans, she also possesses the right to enter into contracts, including the right to contract away her First Amendment rights." One precedent supporting that proposition: Another Trump v. Trump, a 1992 case involving Ivana Trump and Donald Trump.

|The Volokh Conspiracy |

From yesterday's decision in Robert Trump v. Mary Trump by New York Appellate Division Judge Alan D. Scheinkman:

Before the Court are separate applications by the defendant Simon & Schuster, Inc. … and the defendant Mary L. Trump [President Trump's niece] … to vacate or modify … a temporary restraining order ….

The temporary restraining order provides that, pending the hearing and determination of the plaintiff's motion for a preliminary injunction, which has a return date of July 10, 2020, both Ms. Trump and S&S, "together with their respective members, officers, employees, servants, agents, attorneys, representatives and all other persons acting on behalf of or in concert with either or both of them," are restrained from "publishing, printing or distributing any book or any portions thereof including but not limited to the book entitled: 'Too Much and Never Enough, How My Family Created the World's Most Dangerous Man', in any medium containing descriptions or accounts of [Ms. Trump's] relationship with [plaintiff Robert Trump, who is Donald Trump's brother], Donald Trump, or Maryanne Trump Barry." …

The trial court order rested entirely on a settlement agreement that followed the litigation over the estate of President Trump's father and mother:

"[P]aragraph 2 of the settlement agreement states that … "Without obtaining the consent of Donald J. Trump, Robert S. Trump and Maryanne Trump Barry, …  Fred C. Trump, III and Mary L. Trump, Lisa Trump and Linda C. Trump ('Objectant/Plaintiffs') as well as Farrell Fritz, P.C. (their counsel) … shall not directly or indirectly publish or cause to be published, any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction of any kind whatsoever, whether fictionalized or not, concerning their litigation or relationship with the 'Proponents/Defendants' or their litigation involving the Estate of Fred C. Trump and the Estate of Mary Anne Trump, or assist or provide information to others in connection therewith.

"As used in the preceding sentence, the terms 'publish' and 'publication' shall be deemed to include the presentation or reproduction of written, verbal or visual material in any communication medium, including, without limitation, books, magazines, newspapers, theatrical productions of any kinds, movies, television, or radio, or the use of the internet in any language and in any jurisdiction. Any violation of the terms of this Paragraph 2 shall constitute a material breach of this agreement. In the event such breach occurs, 'Objectants/Plaintiffs', as well as their 'counsel', hereby consent to the granting of a temporary or permanent injunction against them (or against any agent acting in their behalf) by any court of competent jurisdiction prohibiting them (or their agent) from violating the terms of this Paragraph…."

The plaintiff avers that Ms. Trump received valuable consideration for the settlement, including a substantial financial settlement, mutual releases, and a confidentiality agreement benefitting her.

The plaintiff alleges that on or about June 15, 2020, Ms. Trump announced the publication of a book entitled Too Much and Never Enough: How My Family Created the World's Most Dangerous Man, which is scheduled for release on July 28, 2020. While the plaintiff has not seen the book, he alleges that Ms. Trump has stated that a major topic of the book will be her relationship with the plaintiff, Donald J. Trump, and Maryanne Trump Barry. According to the plaintiff, Ms. Trump has stated that book contains an "insider's perspective" of "countless holiday meals," "family interactions," and "family events."

The plaintiff asserts that neither he, nor Donald J. Trump or Maryanne Trump Barry, have consented to the publication of the book. The plaintiff asserts, as a first cause of action, that the settlement agreement is valid, that he has performed its terms, and that it is within Ms. Trump's power to perform her obligations by refraining from publishing the book without the consent of the proponents. The plaintiff, pointing to the terms of the settlement agreement, states that Ms. Trump has stipulated that there is no adequate remedy at law to compensate him for the disclosures she is proposing to make. As to S&S, the plaintiff asserts that S&S "is acting at [Ms. Trump's] direction in publishing the book on her behalf, and is acting in concert with [Ms. Trump]." … [Plaintiff seeks, among other things,] specific performance of the settlement agreement, and a permanent injunction….

The court concluded that injunctions against breach of nondisclosure agreements generally don't violate the First Amendment; it cited New York cases and federal appellate case, but there have been similar decisions in recent years from the Connecticut Supreme Court (Perricone v. Perricone), the Vermont Supreme Court (Kneebinding, Inc. v. Howell), and a Texas Court of Appeals (Leibovitz v. Sequoia Real Estate Holdings, Inc.):

While Ms. Trump unquestionably possesses the same First Amendment expressive rights belonging to all Americans, she also possesses the right to enter into contracts, including the right to contract away her First Amendment rights. Parties are free to limit their First Amendment rights by contract (see Trump v Trump, 179 AD2d 201, 205-206; Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d 253, 257 [2d Cir]; see also Speken v Columbia Presbyt. Med. Ctr., 304 AD2d 489, 490; Anonymous v Anonymous, 233 AD2d 162, 163). A court may enforce an agreement preventing disclosure of specific information without violating the restricted party's First Amendment rights if the party received consideration in exchange for the restriction (see Democratic National Committee v Republican National Committee, 673 F3d 192, 204-207 [3d Cir]). A party may effectively relinquish First Amendment rights by executing a secrecy agreement in which the party receives significant benefits (see Alfred A. Knopf, Inc. v Colby, 509 F2d 1362, 1370 [4th Cir]).

Here, the plaintiff has presented evidence that Ms. Trump, in exchange for valuable consideration, voluntarily entered into a settlement agreement to resolve contested litigation. In that settlement agreement, she agreed not to publish a book concerning the litigation or her relationship with the adverse parties, the plaintiff, Donald J. Trump, and Maryanne Trump Barry, without their consent. The settlement agreement reflects that Ms. Trump was represented by counsel and, indeed, her counsel themselves also agreed to confidentiality.

The Trump family was well known in New York, and the plaintiff asserts that the litigation over the family's estate had received extensive publicity. This Court perceives it to be reasonable for a well-known and prominent family to collectively agree, as part of the settlement of a highly-publicized internal family dispute, to confidentiality provisions under which all parties agree to maintain family privacy regarding intimate family matters. While the contents of the proposed book are unknown, from the title and from the statements attributed to Ms. Trump it appears that the content of the book touches upon subjects that may be within the reach of the confidentiality provision of the settlement agreement.

The court concluded that some such agreements may nonetheless be unenforceable under state remedies and contracts law, but that the trial court was justified in at least temporarily restraining the publication of Mary Trump's book while it was deciding whether the agreement was enforceable:

It bears noting that, while parties are free to enter into confidentiality agreements, courts are not necessarily obligated to specifically enforce them. Whether to issue an injunction is a matter of equity. Confidentiality agreements are alternatively enforceable through the imposition of money damages.

In determining whether to grant specific performance thorough the use of the equitable remedy of an injunction, courts should balance the legitimate interests of the party seeking to enforce the contract with other legitimate interests, including, especially in this context, the public interest. This balancing concept takes into account whether the provisions of the confidentiality agreement are temporally and geographically reasonable and the extent to which the provisions are necessary to protect the plaintiff's legitimate interests. The confidentiality agreement here does not have any temporal or geographic limitation.

The passage of time and changes in circumstances may have rendered at least some of the restrained information less significant than it was at the time and, conversely, whatever legitimate public interest there may have been in the family disputes of a real estate developer and his relatives may be considerably heightened by that real estate developer now being President of the United States and a current candidate for re-election.

Drawing the appropriate balance may well require in camera review of the book sought to be enjoined. Stated differently, the legitimate interest in preserving family secrets may be one thing for the family of a real estate developer, no matter how successful; it is another matter for the family of the President of the United States.

Ms. Trump contends that to restrain her from publishing a work concerning the character and fitness of the President in an election year would unduly infringe upon her First Amendment rights, notwithstanding her entry into the confidentiality provision of the settlement agreement. There is no need to decide this issue at this juncture, as the election at issue is still four months away. There is no compelling need for the material at issue to be published by Ms. Trump prior to the return date of the motion for a preliminary injunction, which is less than 10 days away.

At this preliminary stage of the proceedings, this Court is of the view that it is appropriate, in view of the confidentiality provision of the settlement agreement and the showing made in the plaintiff's papers, for a temporary restraining order to issue as against Ms. Trump to temporarily enforce its terms pending a hearing on the preliminary injunction. The [trial court] may revisit the restraining order upon its timely review of the defendants' submissions and its conduct of further proceedings.

But Simon & Schuster, at least for now, couldn't be bound by Mary Trump's agreement with her relatives. It's possible that Robert Trump might go back to trial court and try to introduce more evidence that Simon & Schuster was Mary Trump's "agent"—I'm not sure—but if he doesn't try that, or tries but fails, then it looks like Simon & Schuster can go back to distributing the book, even despite the injunction against Mary Trump:

S&S is not a party to the settlement agreement. The only basis offered by the plaintiff to extend the temporary restraining order to S&S are the allegations that S&S "intends to act" on Ms. Trump's behalf in causing the publication of the book and that S&S is acting at Ms. Trump's direction and in concert with her. However, these allegations are conclusory and not supported by any specific factual averments.

Unlike Ms. Trump, S&S has not agreed to surrender or relinquish any of its First Amendment rights. Since the predicate for the plaintiff's application for a temporary restraining order is the existence of the confidentiality provision of the settlement agreement (and no alternate basis for an injunction against Ms. Trump is either suggested or apparent), and S&S is not a party to the settlement agreement, this Court perceives no basis for S&S to be specifically enjoined. But the matter does not quite end there.

In the settlement agreement, Ms. Trump agreed that, in the event of a violation of the confidentiality provision, injunctive relief could be obtained not only against her but also against "any agent acting in [her] behalf." It is a well-established feature of injunctive practice that injunctions may be issued against an agent or employee of a party covered by the injunction. If the rule were otherwise, a party could readily evade an injunction by the expedient of simply causing his or her agent or employee to undertake the action which the party is prohibited from doing. However, that an actor may be sympathetic to the desires of one properly bound by an injunction, or that by his or her conduct an actor accomplishes what the party enjoined wants accomplished is not sufficient, by itself, to impose contempt liability.

The papers presented warrant the extension of the temporary restraining order against Ms. Trump to any agent of hers. While it is customary that restraining orders issue, as this one did, against employees, members, officers, attorneys, representatives of, and those acting in concert with, the enjoined person, the settlement agreement here does not reflect Ms. Trump's consent to inclusion of anyone other than her agent within the scope of the injunctive relief against her.

While the plaintiff may be entitled to enforce the confidentiality provision, he is not entitled to greater relief than what the settlement agreement calls for. The restraining order issued below therefore should be modified to accord with the settlement agreement. Since the plaintiff's application for a temporary restraining order is founded on the settlement agreement, the relief to be accorded must be consistent therewith.

Thus, the restraining order should be modified to limit its scope to Ms. Trump and any agent of hers. While the plaintiff has alleged, in effect, that S&S is Ms. Trump's agent, the evidence submitted is insufficient for this Court to determine whether the plaintiff is likely to succeed in establishing that claim. So, while the plaintiff is entitled to have the temporary restraining order bind any agent of the plaintiff, this Court will not name S&S as being such an agent.

This Court also concludes that the duration of the restraining order should be modified such that it shall remain in effect pending the hearing of the motion for preliminary injunction, and that the restraining order should be reassessed by the Supreme Court in view of the defendants' answering papers.

NEXT: En Banc D.C. Circuit Delivers Big Win for Landowners

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  1. I’ve been in front of Scheinkman. All he does is talk, talk, talk. If he hasn’t read any papers, he will spend all morning talking about a case and then making a ruling without the lawyers having had an uninterrupted chance to explain the facts to him. His verbosity is on display here.

    He also considers himself the smartest person in the room and is quick to point out omissions or missteps by the lawyers, which is what he did here. He can’t say that S&S is an agent of Ms. Trump because the proof is not there — in other words, you lawyers screwed up! THBB! (sticks tongue out)

    1. It’s also a quite asinine decision — “Unlike Ms. Trump, S&S has not agreed to surrender or relinquish any of its First Amendment rights.”

      True. And S&S can scream “Orangeman Bad” from the highest ramparts. But it can’t say “Mary Trump says ‘Orangeman Bad'” because Mary Trump is prohibited from saying that to anyone, including S&S.

      It’s similar to the issue Tom Clancey got into when he wrote The Hunt for Red October — while *he* hadn’t signed the confidentiality agreement regarding classified documents, he had to show the public sources from whence he obtained what the government thought were classified military secrets.

      I am thinking intellectual property more than free speech here, Mary Trump’s book is her intellectual property which she already sold in the confidentiality agreement and hence couldn’t sell again as she didn’t own a sellable interest.

      Hence S&S is, essentially, engaging in piracy in printing her book.

      1. “Hence S&S is, essentially, engaging in piracy in printing her book.”

        This is like the nonsensical cherry on top of the word salad sundae!

        “This is just like that one time I went all the way to the wilds of New Hampshire to go to the state liquor store, because I want to get my booze on all cheaper than the local packie. So I was there, and a guy was buying his case of Schaefers, and he says to me, “Ed, you brilliant man, you know that you can’t trust a chick named Mary.”

      2. It’s similar to the issue Tom Clancey got into when he wrote The Hunt for Red October — while *he* hadn’t signed the confidentiality agreement regarding classified documents, he had to show the public sources from whence he obtained what the government thought were classified military secrets.

        The only similarity between the two scenarios is your complete ignorance of the legal issues involved.

      3. “But it can’t say “Mary Trump says ‘Orangeman Bad’” because Mary Trump is prohibited from saying that to anyone, including S&S.”

        Did you pick that one up at the South Texas College of Law?

      4. All of this is beyond the provisions of the settlement agreement cited in the EV post.

    2. The other error he notes is that the temporary injunction applies to a broader class than the settlement agreement. The latter covers only agents. This might turn out to be an important omission by the lawyers who drafted the settlement agreement.

      1. We already know that Trump’s lawyers, while good at bluster, are not adept at actual legal work, so this is not a surprise.

        1. if you mean Donald Trump’s lawyers, he isn’t the plaintiff.

          1. We’re talking about the settlement agreement, in which “Proponent[]/Defendant[]” “Donald J. Trump”, with the assistance of counsel, settled claims by “Objectant/Plaintiff[]” Mary L. Trump.

            1. On more careful reflection, I’m not sure the omission is meaningful at all.

  2. Charlie’s antics are going to make an amusing book some day. This is a fun result – giving him everything he asks for, except what he wanted.

    1. Time for discovery. S&S will have to show they are not acting as an agent of Trump’s. Poor libtards aren’t going to get to read the book until Donnie’s second term.

  3. How My Family Created the World’s Most Dangerous Man

    Ghengis Khan? Karl Marx? Adolf Hitler? Joseph Stalin? Mao? Or maybe she means the most dangerous currently alive? Winnie the Pooh in China, consolidating his iron fist over 1.3 billion people, and Hong Kong? Putin, requesting and getting emergency powers, and now the power to rule forever, “to thunderous applause”, as Padme said?

    Certainly she’s not talking about a bloviator who’s largely inconsequential because he’s been stuffed in almost every endeavor by normal political processes!

    1. Don’t be so persnickety. You expect a little exaggeration from a niece.

      1. A niece (devil hath no fury), who is also a Trump too. Double whammy.

    2. Krayt, there’s two ways of looking at that.

      If she had said “the world’s most evil man” I would be inclined to agree with you that several of the people on your list are more evil. However, dangerousness is not determined by evil intent. It’s determined by how much damage one leaves in one’s wake, malicious or not. And in Trump, we have a man with awesome power — finger on the nuclear button, ability to do long term damage on climate change, ability to bankrupt the largest economy in the world, at least partly to blame for the current state of Covid-19 — who has the attention span of a five year old, who makes policy based on his own personal immediate gratification, who is wildly incompetent, and thinks he knows more than everybody else in the room even though most of the time he doesn’t. So he is very, very dangerous because of the potential damage he can do, and his total unfitness to wield the amount of power that he has.

      It is possible he loses the election in November, leaves office in January, and the next administration cleans up his mess with few long term consequences. Sometimes drunk drivers do make it home safely. But sometimes they ram into school buses full of children too. Until he is safely out of office, it’s impossible to know just how much damage he is going to leave behind.

      1. Soooo dangerous… Show me on the doll where Trump touched you. Did he grab you by the pussy?

        “Potentially” the world’s most dangerous man, because we’re full of hyperbole about Trump’s hyperbole and willfully ignore that none of our doomsday prophecies have come to pass.

        Everything will be better with Creepy Old Biden though.

        1. Sometimes drunk drivers do make it home safely.

          Though this particular drunk has already done a lot of damage.

          1. I don’t believe that he drinks.

            1. Whoosh.

            2. It might be better if he did. In any event, hard to imagine how things could be any worse.

        2. Two Points :

          1. The degree of Trump’s “danger” is a distraction (of course), which is why his defenders are all over it. What Ms Trump’s book will provide (of course) is more evidence what a sleazy reeking turd of a human being her uncle is. Everyone here knows that’s what’s in the book, which is why DJT toadies are already busy with distractions. Ya can never start too soon with that sort of thing.

          2. Apparently Trump finally understands he’s losing – badly. So being the baby-man he is, how do you think he plans to turn things around? A dignified presidential response to the pandemic or racial unrest? Nah. New measures to bring prosperity to those hit hard by these brutal times? Nope.

          Instead, Trump is considering new meanie nicknames for his enemies – quizzing his poor staff (who will all write tell-all books one day) whether to change Biden from “Sleepy Joe” to “Creepy Joe”. The man has yet to give a substantive answer on a second term agenda – despite being asked several times – but he obsesses over childish playground taunts.

          Well, that’s what the base (such as VinniUSMC) wants in a president : pro-wrestling-style entertainment. Unfortunately for Trump, that base is just too damn small…..

          1. Speaking of pro-wrestling… There’s a YouTube video floating around from 2008, in which pro wrestler Triple H recalls how, after the WWE aired a skit of Vince McMahon’s limousine exploding (ostensibly with him inside), Donald Trump called WWE offices to ask “if something happened to Vince”. And people say he has no empathy.

            1. I get to pretend I’m the Lone Ranger!

              Donald Jesus Trump on wearing a mask

      2. This nonsense, from a guy that doesn’t believe free will exists.

        1. Still hurt that I kicked your butt on the free will debate?

          But please enlighten me, what did I say that’s incompatible with denying the existence of free will?

    3. Krayt,
      Since you seem focused on the literal language…
      “…Ghengis Khan? Karl Marx? Adolf Hitler? Joseph Stalin? Mao?…”

      While the effects of their evil lives do remain to this day, in terms of current actual danger to me (or my country), I think that every living person today poses more risk than someone who is dead. Unless the zombie apocalypse happens, in which case I get dibs on killing Zombie Hitler and Zombie Stalin.

      (I think the better answer really is, as already noted, “In politics, there is always hyperbole. In sales, there is always hyperbole/puffing. In sales re politics, it’s a near certainty that titles and subtitles will be as dramatic as possible, even at the expense of literal truthiness.) When Trump eventually (ghost)writes his presidential memoirs, I will not be shocked by the “I know more than the generals” or “I know the best words” subtitle…even if I will note the falsity of the assertion.

    4. So, you’re saying she’s lying?

      Well, at least we know for sure she’s related to Trump, then!

    5. Do you object to Donald Trump’s “exaggerations” as much as you do to Mary’s?

  4. Offered without comment?

    #TrumpGotYourTongue?

  5. Thank yo for including the non-disclosure provision. It is hard to follow a story about enforcing a provision when no one publishes the provision. Interested to see how “or relationship with” gets read. Perhaps not as plaintiffs would like.

  6. Assuming the terms of the contract are as stated above, I find it hard to conclude that the publisher is anything other than an agent in causing her book to be published. Assuming the first part of the decision is valid, the second part seems to be on weak ground.

    1. How is the publisher the author’s agent? The publisher has purchased the right to publish the book from the author. In publishing the book, the publisher exercises that right. That is not agency.

      1. “The publisher has purchased the right to publish the book from the author.”

        What right? She didn’t have one to sell.

        1. The paragraph from the settlement agreement does not purport to assign Mary Trump’s right to publish to anybody else. It’s just a standard non-disclosure agreement.

          1. Can she validly sell the right to publish something that she is under a contractual obligation to not publish?

    2. Assuming the terms of the contract are as stated above, I find it hard to conclude that the publisher is anything other than an agent in causing her book to be published.

      Yeah. That seems weak to this non-lawyer. I suppose there are definitions of “agent” that fit that conclusion, but in the context of authors and publishers it looks to me as if the publisher is effectively an agent.

      The stronger part of the author’s case seems to me to be the issue of “public interest.”

    3. Whats’ your agency theory?

      1. Who owns the copyright?

        1. It depends on the agreement between the author of the creative work and a publisher. The author owns the copyright but may sell it to the publisher. Or the author can retain the copyright and sell a license to the publisher.

          1. “sell a license”

            A license is a type of agency.

            1. Let me back up. I think a license can involve an agency relationship, but it need not. If I buy a license to publish someone else’s works for profit, I’m not publishing the works as an agent for the seller. I’m publishing the works on my own behalf, for a profit. I suppose it’s possible to be hired as an agent for a creator of public works, and then secure a license through that agency agreement to bind the principal. But I assume S&S came after the rights for Mary Trump’s rights for its own benefit, not so it could bind her as the principal.

              1. I don’t get this distinction.

                The fundamental business deal, as I understand it, between author and publisher is that the author writes the book – generally with some editorial input from the publisher – and the publisher undertakes to have it printed, promoted, and sold. The author helps with that, usually, by making public appearances, giving interviews, whatnot.

                They split the proceeds in some agreed to fashion.

                So how does it matter whether the publisher bought a “license,” presumably exclusive, or contracted with the author to provide services, or structured things some other way?

                What difference does it make to the substance of the arrangement?

                I appreciate any enlightenment.

                1. “So how does it matter whether the publisher bought a “license,”…”

                  For agency purposes it doesn’t. I was just answering Bob’s irrelevant question. The distinction I was trying to point out was that an agent can have a license to use its principal’s creative works in some way. An author’s agent, as an example, can have a license to share the creative work with publishers to try and convince them to purchase and publish it. But the license itself doesn’t create an agency relationship. A license is just like any other thing you buy. When you go to the grocery store and purchase a cucumber, are you and the grocery store entering into an agency relationship? If you sell your house, are you the agent for the buyer (or are they your agent)? No.

                  I guess I can’t answer your question because I don’t understand what Bob means when he says “A license is a type of agency” and I don’t understand why you think the relationship you describe has something to do with agency. The salient feature of agency is that the agent has authority to bind the principal, and the principal is therefore liable for the agent’s conduct (within the scope of the agent’s authority). If the publisher, during the process of selling books, defrauds some paper mill, the paper mill can’t sue the author as the publisher’s principal. Or maybe you think or bob thinks the paper mill can? I don’t know, I need somebody to explain to me why they think this creates an agency relationship. That’s why I asked.

                  I suppose it’s possible that the publisher and the author could enter into an agency relationship. Maybe the publisher doesn’t want to be responsible to a venue if the author flakes from a promotional gig, and insists in its publishing agreement that it will act merely as the author’s agent in setting up promotional gigs, but that the author remains liable to the venue.

                2. What might be confusing is my misstatement earlier. What I said was:

                  “I think a license can involve an agency relationship…”

                  What would have been more precise was:

                  “I think an agency relationship can involve a license…”

            2. “A license is a type of agency.”

              Does a license to operate a franchise make the franchisee an agent of the franchiser?

              (No, it doesn’t. If it did, the franchiser would be liable for for everything the franchisee did in the course of operating the franchise, which is the very thing that the franchise model intends to avoid.)

  7. Reading between the lines (though not very veiled) it seems that the appellate court is strongly leaning towards not requiring specific performance and relying on money damages instead as the proper remedy.

    Plus if it is already being printed and shipped I see no way that it doesn’t leak regardless of what any court may want to rule. Could easily be looking at another Bolton type ruling.

    1. I agree. I think Prez. Trump is a tool. (And that’s after putting aside 153 other descriptions that were less kind but more accurate) But, here, I think he has a pretty strong case. I’d hate to see a legal standard of, “You can contract away your free speech rights, but if you publish a book/sell a script for a movie, then that publisher/producer can get around your prior contract . . . then that contract was of limited value.

      In other words, will “Bolton” become a verb as Bork did? “Sid, you did sign an NDA. But once we Bolton it, the truth can get out to the American public.”

      On the other hand, maybe a judge, in considering the equitable remedy sought, should consider equitable issues like the ones mentioned in the OP (that an agreement signed in re a NYC real estate developer should not be enforceable against someone running for the most powerful office on the planet). That wrinkle seems relevant–and, perhaps, dispositive.

      1. Or maybe NDAs will go into the toilet.

        Has there ever been a NDA that there couldn’t be a “public interest” argument for violating? I’m not saying legitimate, merely articulateable…

      2. “But, here, I think he has a pretty strong case. I’d hate to see a legal standard of, “You can contract away your free speech rights, but if you publish a book/sell a script for a movie, then that publisher/producer can get around your prior contract…”

        The publisher cannot get around the prior contract; the publisher isn’t bound by the settlement agreement at all. Specific performance is an unusual remedy. The President can sue Mary Trump for damages for breach of the settlement agreement, which is the same remedy any of us would have for breaches of contract.

        If Mary Trump handed the manuscript to the Washington Post, for free, they could publish it. If she posted it online, for free, what is it you’re proposing should happen? A New York court enjoins the internet?

        1. I actually agree with you, generally-speaking. I personally don’t like NDAs and often are really against social welfare. But I don’t like the idea of avoiding and evading contracts, either…as a general rule.

          I don’t have a good answer here. I don’t think there is one. (Unless we were to adopt a bright-line rule of “NDA’s are unenforceable as a matter of law, absent extremely narrow exceptions (high-level security work, trade secrets, etc.). )

          1. They are enforceable. But …

            1. There will always be issues w/r/t public policy. While I am unsure about the application here, I am much more confident w/r/t the NDAs Trump has forced on his campaign staff and others in the administration.

            2. They can be enforced against the individual; so, for example, she might be forced to disgorge all profits and pay additional penalties (depending on the contract). In other words, it’s JUST A CONTRACT. People can, and do, breach contracts. Perhaps this is … just an efficient breach. 🙂

          2. “But I don’t like the idea of avoiding and evading contracts, either…as a general rule.”

            But why? I spend every day of my life around contracts. I live with penalty avoidance, efficient breach, damages limitations, etc. Maybe the law is wrong. But a contract is not an oath. It’s a promise to do or not do things, enforced with damages. Sophisticated commercial parties assume the other side might breach, and plan their affairs accordingly.

            That’s especially true with settlement agreements, which often specifically contemplate breach by one of the parties. As this one did here. Damages are the ordinary remedy for breach. Contract law can make the non-breaching party whole. That’s what makes it beautifully superior to tort law. (Money can never make an injured person entirely whole, since money is not a real substitute for a limb, or a loved one lost, pain and suffering, etc.) Parties to contracts are volunteers; there are no innocent victims. Under those circumstances, how does a moral argument for specific performance hold up?

            NDAs are enforceable. No one is suggesting they are unenforceable. Why can’t they be enforced the same way any other contract obligation is enforced? You said you would construct my house for $500K. You didn’t. I can’t force you to build it because of the 13A. So give me money. All is well.

            In the financial crisis, I don’t remember anyone lamenting the moral failings of all those borrowers who defaulted on their notes. (In fact my recollection was the opposite; strangely everyone assumed the non-breaching banks were immoral.) Why don’t we just keep morality out of contract law?

            1. “It’s a promise to do or not do things, enforced with damages.”

              Or, as you know, by specific performance. If damages are inadequate or the property is unique [like real property], then it should be available. This wasn’t a commercial contract, it was a settlement of a family dispute.

              Release of embarrassing but not libelous personal or family stories are probably not worth much in the way of damages.

              1. “Or, as you know, by specific performance.”

                And as you know, specific performance is a mug’s game when it comes to contracts.

                Even when it is the remedy that was contemplated (such as non-compete provisions) it is narrowly construed.

              2. “Release of embarrassing but not libelous personal or family stories are probably not worth much in the way of damages.”

                Then the non-breaching settler can be made whole with rescission.

            2. But a contract is not an oath. It’s a promise to do or not do things, enforced with damages. Sophisticated commercial parties assume the other side might breach, and plan their affairs accordingly.

              You know that there are different theories of contract, and what you describe above is only one way to look at them. And that people recognize the possibility of breach does not mean that they are indifferent as to whether the other side breaches.

              Under those circumstances, how does a moral argument for specific performance hold up?

              Well, in part because your premise is wrong; money can’t always make a non-breaching party whole. If it’s a contract to deliver widgets, sure. If it’s a contract not to disclose embarrassing information, money damages no more cure the breach than they do for a missing limb.

              1. “And that people recognize the possibility of breach does not mean that they are indifferent as to whether the other side breaches.”

                I don’t think they are indifferent. I’m the one who is indifferent, specifically to parties with buyer’s remorse because they failed to secure sufficient liquidated damages (or whatever) to make themselves indifferent to breach. Nobody forced them into the contract.

                “If it’s a contract not to disclose embarrassing information, money damages no more cure the breach than they do for a missing limb.”

                Return of consideration can put the non-breaching party back to the same place they would be if there had never been a contract.

                1. I’m the one who is indifferent,

                  Well of course you are; your interests aren’t at stake. We don’t enforce contracts because non-parties care about the exchanged promises.

                  Return of consideration can put the non-breaching party back to the same place they would be if there had never been a contract.

                  Given the existence of statutes of limitations, that’s not true, but it misses the point anyway. The non-breaching party doesn’t want to be in the same place he was in if there were no contract; if he did, he wouldn’t have entered into the contract in the first place.

  8. This writing tell-all books about Trump schtick looks like a money train. I should get in on it before it’s too late. Um, “He Tweets A Lot;” subtitle “Salacious and Embarrassing Things I Was Able To Find On the President That Were In the Public Domain.”? I bet I could make some easy cash off of that.

    1. I don’t get it.

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