Trump v. Trump: Publisher is not an Agent of Author Subject to a Non-Disclosure Agreement

By Sofia Castillo

On July 1, the Appellate Division of the State of New York Supreme Court issued a decision on whether an author’s non-disclosure agreement (NDA) binds a publisher and other similarly situated distributors. The decision allows publisher Simon & Schuster to proceed with the publication of Mary Trump’s book about her uncle, President Donald Trump, titled Too Much and Never Enough, How My Family Created the World’s Most Dangerous Man.

Fred and Mary Anne Trump were Donald Trump’s parents and Mary Trump’s grandparents. In 2001, Mary Trump signed an NDA as part of a settlement agreement regarding the probate dispute among Fred and Mary Anne Trump’s heirs. The NDA prohibited Ms. Trump and her agents from publishing “any diary, memoir, letter, story, photograph, interview, article, essay, account, or description or depiction” regarding the probate litigation or the relationship between Ms. Trump and her relatives on the opposing side – including President Trump – without their consent.

Upon the announcement of the publication of the tell-all book in June, Robert Trump, Donald Trump’s brother and also the author’s uncle, sought a temporary restraining order (TRO), preliminary and permanent injunctive relief against both Ms. Trump and Simon & Schuster, seeking to enjoin the book’s publication. On June 30, the New York Supreme Court granted a TRO to prevent the publication, printing, or distribution of any portion of the book.  Both Ms. Trump and the publisher asked the Appellate Division to vacate or modify the TRO.

First, addressing Mary Trump’s free speech defense, Presiding Justice Sheinckman held that, although Ms. Trump has the same First Amendment expressive rights as all Americans, she relinquished such rights by executing a secrecy agreement in exchange for valuable consideration. In light of the confidentiality agreement, it was appropriate to allow the TRO to stand with regard to Ms. Trump pending the July 10, 2020 hearing on plaintiffs’ motion for a preliminary injunction.

The court next considered whether the NDA applied to Simon & Schuster as Ms. Trump’s agent. The court found that Simon & Schuster was not Ms. Trump’s agent, noting that being “sympathetic to the desires of one properly bound by an injunction,” or acting in a way that “accomplishes what the party enjoined wants accomplished is not sufficient, by itself, to impose contempt liability.” The court narrowed the scope of the TRO to Ms. Trump and her true agents and excluded Simon & Schuster from the TRO’s purview.

In the wake of the decision, Simon & Schuster moved up the publication date from July 28, 2020 to July 14, 2020. The book has been distributed to media outlets in anticipation of its publication on July 14.

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