In a speedy reversal, the Second Appellate Division of the New York State Supreme Court has vacated judge Hal B. Greenwald's Temporary Restraining Order blocking Simon & Schuster from publishing Mary L. Trump’s forthcoming tell-all, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man.
The July 1 decision comes just a day after Greenwald issued his June 30 order, following emergency appeals by both Simon & Schuster and the author, and a speedy private hearing before the appeals court. The decision means S&S can continue to move forward with its planned July 28 publication, although a July 10 appearance date on the matter still looms.
In his six-page ruling, Presiding Judge Alan Scheinkman held that because S&S is not a party to the confidentiality agreement at the heart of the case, they cannot be restrained without a full hearing of the facts.
"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," Scheinkman wrote. "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 with a hearing set for July 10 before Judge Greenwald, the appellate court upheld a modified version of the Temporary Restraining Order pertaining to the author, Mary L. Trump.
"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," Scheinkman concluded.
In a statement, S&S officials said there were "gratified" by the Appellate Court’s decision. "As we all know, there are well-established precedents against prior restraint and pre-publication injunctions," S&S officials said, "and we remain confident that the preliminary injunction will be denied."
The decision is the latest twist in a fast-moving lawsuit pursued by Robert S. Trump, the brother of President Donald J. Trump, in New York State Supreme Court in Dutchess County that seeks to block Mary L. Trump from publishing a potentially explosive Trump family memoir on the basis of a sweeping confidentiality clause agreed to in 2001, when the estate of the president’s father, Fred Trump Sr., was settled. On the S&S website, Mary L. Trump's book is described as a “revelatory, authoritative portrait of Donald J. Trump and the toxic family that made him," and claims to offer insight into how Trump "became the man who now threatens the world’s health, economic security, and social fabric.” The publisher's catalog copy describes Mary L. Trump as a trained clinical psychologist as well as the president’s only niece.
In its June 30 answer to the Trump family lawsuit, attorneys for Simon & Schuster insisted there is no constitutional or contractual basis for blocking Simon & Schuster's publication, and denied that the publisher is acting either as an "agent" or "in concert" with Mary L. Trump.
“This argument, which posits that Simon & Schuster can be bound by an agreement that pre-existed its relationship with Ms. Trump by almost twenty years and whose existence was unknown to it, is specious at best,” S&S attorneys argue, adding that the publisher and the author are "independent parties that entered into an arm’s length transaction." And unlike a legally defined agent, "Simon & Schuster—not Ms. Trump—maintains the right to control the publication of the Book.”
That argument is bolstered by an affidavit from S&S CEO Jonathan Karp, who told the court that after book was formally accepted on May 7, Mary L. Trump “lost any ability she otherwise may have had to prevent or delay the Book’s publication.” Further, Karp said that "approximately 75,000 copies have been printed and bound and are ready for publication,” which includes shipments to retail booksellers—copies which S&S no longer maintains control of.
“Once Simon & Schuster shipped [the books] in response to a purchase order," Karp explained, "title to the physical copies passed to the retailer or wholesaler.”
Clarification: this story has been edited to reflect that while the parties have requested oral argument, no appearance is required on July 10. The court will rule on the briefs submitted.
