The Volokh Conspiracy
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Bill O'Reilly is looking to enforce the confidentiality provision of a 2004 settlement agreement and stop his former producer Andrea Mackris from disparaging him in interviews.
After hearing that Mackris was scheduled to appear on The View, and getting an emailed invitation from the ABC talk show to submit a statement, the former Fox News host rushed to a New York court for a temporary restraining order….
The dispute comes after Mackris broke her long silence to recount sexual harassment allegations against O'Reilly. Mackris spoke to the Daily Beast, and specifically, Diana Falzone, who also once worked at Fox News and had sued the cable news channel.
Mackris now says she never wanted to take $9 million and instead hold O'Reilly accountable, but she did make a deal. Read that full settlement agreement below.
For more on the law supporting this, see Donald Trump v. Mary Trump (July 2, 2020):
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 Trump trial court order had rested entirely on a settlement agreement that followed the litigation over the estate of President Trump's father and mother:
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 Trump appellate decision (a one-judge order) reasoned:
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 Trump 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 couldn't be bound by Mary Trump's agreement with her relatives. (I think that's probably not relevant to the O'Reilly case, but it helps explain the result in the Trump case.)
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.
Thanks to Matthew Chan for the pointer.