July 2, 2020

The appellate court — lifting the TRO against Mary Trump's book — said "while parties are free to enter into confidentiality agreements, courts are not necessarily obligated to specifically enforce them."

It noted that NDAs are "alternatively enforceable through the impassion of money damages."

CNN reports.

As you may know, that's what I said yesterday, and so many of you jumped on me in the comments.

But I need to check another source. I can't believe the court wrote "the impassion of money damages." It has to be "the imposition of money damages." Who made the mistake? I hope it's CNN and not the court.

AND: Here's the New York state court opinion. It's the intermediate court, the Appellate Division, Second Department (Brooklyn):
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.... 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... A party may effectively relinquish First Amendment rights by executing a secrecy agreement in which the party receives significant benefits....

Here, the plaintiff has presented evidence that Ms. Trump, in exchange for valuable consideration, voluntarily entered into a settlement agreement...

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.
So the error is CNN's.

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....

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....
It's the TRO against the publisher, Simon & Schuster that is lifted. There's still a TRO against Mary Trump, as the case goes forward to a hearing on a preliminary injunction.

63 comments:

traditionalguy said...

The Trump Family runs into the Bleak House Court, Another few generations of lawyers and learned Judges and this will be over. Maybe.

mezzrow said...

"So the error is CNN's."

It's like counting up Jaguars football losses.
You could go broke betting on them to win.

The Vault Dweller said...

Hasn't equitable relief always been largely up to the whims of the particular judge, and if anything largely admonished against the court taking? I think a mortage-holding plaintiff can mess up a minor wording technicality and then many times a chancery court will not grant the equitable relief of a sheriff sale of the property in question. Why should enjoining against the publication of a book be any different?

The Vault Dweller said...

For the sake of the Plaintiff, I hope they had a liquidated damages clause, since calculating monetary damages of a person publishing a book against a political figure is usually a case where the court merely pretends they have calculated damages correctly.

Bill, Republic of Texas said...

I'm sure the courts would have lifted a restraining order preventing the publication of a book about Obama or Clinton.

That's the problem. We all know there is a two tiered legal system in this country.

Robert Marshall said...

Were I determining the money damages, it would be disgorgement of every benefit obtained by the defendant through its breach of contract.

Dave Begley said...

The case is wrongly decided and clearly political. What if Donald loses the election because of this book? How does one put a dollar amount on that? You can’t. That’s irreparable harm and why the injunction should be granted.

That Court just rendered NDA’s meaningless and toothless.

Howard said...

You people sure love your Donald.

TrespassersW said...

CNN writers and editors don't know the difference between "impassion" and "imposition?" Where's my shocked face?

Temujin said...

Howard: You people sure love your Donald.

Need I say it Howard? You people sure hate your Donald. Been going at it with everything but UFOs and aliens for 3.5 years. I'm waiting for the alien accusations to yet happen. And no, I don't mean the ones coming over the southern border.

frenchy said...

This way courts are free to be political, and are left free to decide who they want to embarrass and injure politically, if they can.

MayBee said...

Howard said...
You people sure love your Donald.


Not as much as you people love to hate him. Publishing and then buying a book about how awful he is by his niece is actually hilarious.

Yancey Ward said...

The people writing for CNN are idiots who know nothing.

The courts should not stop the publication of the book- if the Trump family wants to enforce the penalties for violating the NDA, then they can try to do so under standard contract law.

Owen said...

Agree that without a liquidated damages clause this provision becomes (at least in this case) almost toothless. Yes, defendant may spend big on lawyers, but the notoriety of the case will drive book sales. You might even see it as a marketing device. “Let’s salt the book with some stuff that will provoke X to sue for an injunction! That will seem to validate the scandalous claims and pique the public’s curiosity! We’ve got law firm ABC on a fixed price contract so we should come out 3:1 ahead...”

Michael K said...

Howard said... [hush]​[hide comment]
You people sure love your Donald.


No, it's the law but you would not understand that. You've already agreed not to call the police so you have surrendered your right to the law.

Jupiter said...

If I contract to work 9-5, M-F, and I sleep in on Thursday, the government will not send a policeman to roust me out of bed. Nor should it.

Chuck said...

Yet another reminder; I originally came to the Althouse blog for the legal subject matter posts, and there have been few times in all those years (about 10 for me) when those posts have been anything less than brilliant.

Big Mike said...

As you may know, that's what I said yesterday, and so many of you jumped on me in the comments.

@Althouse, you may know the law, but we understand what is right.

Big Mike said...

You people sure love your Donald.

Love him? Nah. Appreciate what he has done for the US and that he is the only person who can bring us back from the economic devastation of the coronavirus. Oh Hell yes! Appreciate that his re-election is the proper response to rioters? Sure thing. Despise people who don’t appreciate him and his policies? Absolutely.

Roger Sweeny said...

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.

More accurately, "a matter of my politics".

Michael K said...

Chuck certainly offered plenty of brilliant legal comments, as I recall.

I'm kidding, of course.

Ray said...

I'm still waiting for the release of Obama's college records, including who payed for his education. When they do, then I'll consider the courts equitable.

Readering said...

No hearing. I believe July 10 the return date, ie expiration of TRO unless court converts to PI by then.

Readering said...
This comment has been removed by the author.
Static Ping said...

Do keep in mind that journalists are generally not experts on anything, including journalism and the English language. They are accredited but not competent. Our news is provided to us by persons who were ill-equipped to get a useful college degree, but nonetheless wanted to be important, not to mention well-paid for their ignorance.

Frankly, this goof by CNN is pretty minor compared to their usual behavior.

Roy Lofquist said...

Dear Autocorrect,

No, I did not mean "duck". Nobody writes "duck", ever. Nobody is interested in "duck". ...

Wince said...

These controversies over a "damaging" book release are news stories unto themselves, and perhaps that begets a media strategy.

The substance of the book leaks out gradually before actual release anyway.

So, the subject seeking confidentiality is better off burning out the story as a publication story, rather than a content story.

By the time the book is published, people are tired of the whole things and have already moved on.

Readering said...

780,000 copies of Bolton book in first week.

Ken B said...

The regulars jumped on you because most of them are fools.

BarrySanders20 said...

Trump's attorneys' reaction: "No shit, Sherlock". Everybody knows NDAs are enforceable through money damages.

Money damages are fine when they provide adequate relief for the harm. This court chooses not to specifically enforce the promise not to publish through injunction (and the threat of contempt) without explaining how money damages are adequate. The appeal will argue that a few hundred thousand to a billionaire who is also president is meaningless, and therefore inadequate, when a remedy exists that would provide (temporary) relief for the harm of the breach.

Lesson: Relying on courts and the whims of judges to enforce your favored remedy is dangerous.



Ken B said...

How long does it take to find Tara Reade's complaint?

Clark said...

Go for restitution damages as a substitute for expectation damages.

Joe Smith said...

One of the arguments that the Mary's lawyers tried to make was that the books had been printed already.

It seems that NDAs mean nothing, even when it comes to endangering national security.

Bolton's people made the same argument...essentially that since the book was already printed and advance copies had been sent out, the cat was already out of the bag, so publication and sales should proceed.

That's like arguing the victim is already dead so no point in punishing the murderer...

MD Greene said...

"An honest politician is one who, when he is bought, will stay bought."

This rule applies only to the finest politicians, of course. It never matters to women of a certain sort.

Think Stormy Daniels.

These women make the rest of us look bad. I could reel off many amusing stories about my relatives, and I never signed an NDA promising not to do so.

But, like Bartleby, I would prefer not to.

walter said...

Only natural for Chuck to pop up when it embraces "because TRRRRUUUUUMMMMMPPPPP"

Krumhorn said...

Here’s what our hostess said yesterday: The court is limited by the First Amendment. The parties can't bargain that away.

They clearly can bargain it away, and the Trump trollop did just that. I don’t see the point in maintaining the TRO against her, but vacating it against the publisher. The court said that S&S were not properly alleged to be her agent, but how can it be otherwise?

Leftie judges; leftie results.

- Krumhorn

hombre said...

And, of course, in a courthouse governed by lefty oligarchs money damages accomplishes the same thing as nondisclosure, particularly when disclosure might embarrass a Republican politician. /s

The beauty of this bullshit is that we now understand that the NY appellate court is a party to NY contracts and may amend them as it sees fit.

I missed Althouse’s post on this point, but I’m sure it was compelling. /s

MadisonMan said...

So the error is CNN's

It usually is.

hombre said...

Howard said...

“You people sure love your Donald.”

Yes, because there are no larger issues here. It’s all about Trump. The story of the lefty life in 2020: It’s all about Trump, so anything goes!

Char Char Binks, Esq. said...

Send Mary to the whipping post, along with Simon &/or Schuster.

Kirk Parker said...

Roy,

The Duck Of Death begs to disagree with you.

n.n said...

Publish it, publish the single sourced, publish the anonymous sourced, publish the plausible associations, and allow people to indulge their warlock judgments to progress the dysfunctional convergence. Forward!

Tomcc said...

I kind of like the alternate statement: "...compassion of money damages".

Drago said...

Howard wanted to say something about the law and perhaps this case but then he realized he is completely ill equipped to discuss those things but he really really wanted to get something posted, so there you go.

Rosalyn C. said...

The neice's argument is undercut by the fact that she didn't provide this valuable public service before the 2016 election.

Michael K said...

Readering said...
780,000 copies of Bolton book in first week.


Did you get your copy? "There is a sucker born every minute." PT Barnum

Earnest Prole said...

The Trump lawyers knew it was a legal Hail Mary, but they get paid to throw it.

Rabel said...

Reading the decision it becomes clear that this is not a matter of an NDA contract between private parties but a settlement agreement in the civil case regarding probate of the elder Trump's estate.

Shouldn't violation of a court approved settlement agreement carry more weight than a simple breach of contract?

Readering said...

Publisher and author have arm's length relationship, not principal-agent.

walter said...

Rosalyn C,
All the smart folks said he couldn't win in '16.
Market value is up now.

Jupiter said...

Blogger Ken B said...
"The regulars jumped on you because most of them are fools."

Yeah, well, at least we're regular fools.

readering said...

A settlement agreement is a contract like any other, unless converted into a judgment. Don't know what happened here. If there was a judgment, then a party could go for contempt of court. But from the way the court in Queens dismissed the complaint so quickly, I don't think that works.

readering said...

"There is a sucker born every minute." PT Barnum.

That would be the folks responding to all the Trump campaign invitations for stuff in return for contributions. I can have dinner with the Veep on July 9. My spam filters get dozens--dozens--a week. Many times I'm on the POTUS's special, select list.

(For legal reasons, footnoted fine print allows one supposedly to text for a chance without contributing, and into what dump do those text responses go. They don't even use it to cull this mailing list.)

Pretty sure if I buy it the advertized number of pages in Bolton's book will all contain printed text (but sadly no maps or illustrations). What I look for in a book.

Drago said...

Readering: "780,000 copies of Bolton book in first week."

LOL

He's all yours! Congratulations!

Drago said...

Put John Bolton Back In Government!
Vote Biden 2020

Yeah, I can live with that.

Dave Begley said...

The NY courts are rigged against Trump but his lawyers should appeal. Irreparable harm if the book is published and he loses the election. Money damages are inadequate.

Howard said...

Drago: Thank You Sir May I Have Another

Francisco D said...

Readering said...780,000 copies of Bolton book in first week.

And what percentage of that audience was going to vote for Trump?

1% seems like a high bar.

Readering said...

So about the same percentage as ticket holders showing up in Tulsa?

Nichevo said...


Howard said...
You people sure love your Donald.



What and who do you love, Howard?

Nichevo said...

Lesson: Relying on courts and the whims of judges to enforce your favored remedy is dangerous.


Lesson: the only way to get someone to shut up is to kill them.

Leora said...

Trump's brother is the one suing and one who is claiming he will be damaged. She alleges financial and tax improprieties which would damage him.

I don't think President Trump cares about the book at all. She already leaked all she had to the NY Times in that nothing burger story about Trump's father's estate.

I am impressed at how little they can come up with after 5 years of intense investigations. The investigation of the Trump charity after two years came up with improperly paying $10,000 for a portrait of the Donald which Donald Jr promptly reimbursed and a tenuous charge that the donation of $2 million to veterans' charities was a personal expense because Trump said he would do it in a campaign speech. The settlement was that the Foundation had to donate another 2 million to charities of their choice, the Trump children had to take a class on fiduciary responsibility, and they had to liquidate the charity. I'd make a bet there is already a new family charity registered in a state with a Republican attorney general.

I wonder whether two years of investigating the Clinton Foundation would come up as dry as that.

Readering said...

The Clinton Foundation was investigated. Closed with no charges.