Free Speech

Court Denies Injunction Against Mary Trump's Book

|The Volokh Conspiracy |

Paul Alan Levy (Public Citizen's Consumer Law & Policy Blog) has a quick summary; you can read the entire opinion here. To quote Levy,

At several points in the opinion, [the judge] rules [as a matter of New York law] that the non-disclosure clause in the agreement settling the family will contest is far narrower than plaintiff Robert Trump had argued; while at other points he appears to say that, if the clause is as broad as Robert Trump had contended, it would be too broad to be enforced consistent with sound public policy….

The clearest ruling in the decision was in favor of defendant Simon & Schuster, which the court said simply could not be treated as a proper subject for relief on the contract because publishing a book does not make a company the agent of the speaker.

(Recall that the lawsuit is all about Mary Trump's nondisclosure agreement, which by its terms purports only to bind Trump and her "agents.")


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  1. I see nothing in this article to change my earlier skepticism in the judge’s decision. How is the publisher not an “agent” of the author for the purposes of this law? The judge appears to have simply waved the issue away with a conclusory statement that they are not. I remain confused and unconvinced.

    1. Does the author work for the publisher, or does the publisher work for the author?

      1. Neither, though I would have thought that contracting with a publisher to put out her book would make the publisher her agent for these purposes.

        1. But that’s not what she did. She sold her rights to the book to the publisher.

    2. Rossami, we live in a banana republic….

    3. Because that’s not what agency is. Do you think, e.g., that the publisher could’ve bound her to a contract? If the publisher hired a printer to print a million copies of the book, and then the publisher didn’t pay the bill, do you think the printer could’ve sued Mary Trump and demanded she pay?

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  3. The best line of the decision was,

    “Lastly, in the vernacular of First year law students, “Con. Law trumps Contracts”.”

  4. Maybe I’m ignorant of important legal doctrines when it comes to contract law and agents. If I am, I’d appreciate a synopsis.

    But, even if the publisher were rightfully considered an agent, how could the NDA be enforceable against an agent who wasn’t a party to the NDA? I could see where a court could order Ms. Trump to instruct her publisher not to publish something that violated the NDA. But how could the publisher be bound by that, other than contractually to Ms. Trump?

    Would the publisher’s contract with Ms. Trump require it to honor any contractual obligations she might have made? And even if it did, wouldn’t enforcement of that contractual obligation require legal action by Ms. Trump. Does agency law somehow impose on agents contractual obligations – to others, not to the principal – which the principal has made?

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