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Temporary Restraining Order Lifted from Simon & Schuster, Allowing Mary Trump Book to Proceed

Update: On July 13, the Court vacated the Temporary Restraining Order against Mary Trump and denied plaintiff Robert Trump’s request for a preliminary injunction saying “to enjoin Mary. L. Trump at this juncture would be incorrect and serve no purpose. It would be moot.”

Judge Greenwald’s decision focused on the fact that the agreement containing the confidentiality language at issue was “a stipulation that settled multiple lawsuits” and that “no specific consideration was paid for confidentiality.” Moreover, the judge said it was the financial aspect of the agreement that was supposed to be kept confidential, and referred to the Trump family relationships as the “non-confidential part of the Agreement.” The Court found that Robert Trump failed to meet his burden of demonstrating imminent irreparable harm “to him” (emphasis in the decision), going on to say “[r]emember the Plaintiff is ROBERT S. TRUMP and no one else. There has been nothing offered that demonstrates that the actions by MARY L. TRUMP in publishing the Book will irreparably harm sole plaintiff ROBERT S. TRUMP.”

On June 25, President Trump’s brother Robert Trump sued his niece Mary Trump and her publisher Simon & Schuster and asked the court to issue a temporary restraining order (“TRO”) and preliminary injunction preventing the publication of Mary Trump’s pending book Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man, which is scheduled to be released on July 28. While the court granted the plaintiff’s request for a TRO on June 30, Simon & Schuster promptly appealed, and on July 1, the appellate division vacated the TRO with respect to Simon & Schuster and modified the TRO with respect to Mary Trump.

The lawsuit stems from a confidentiality provision in a settlement agreement between Mary Trump, Robert Trump, Donald Trump, and other members of the Trump family, which resolved a dispute about the will of Fred Trump (the Trump family patriarch, father to Robert Trump, Donald Trump, and their sister Judge Maryanne Barry). Pursuant to this provision, Mary Trump (along with the other parties who had objected to Fred Trump’s will) agreed to not publish “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 Robert Trump, Donald Trump, and Maryanne Barry, the parties who supported the will (the “Proponents”). While Robert Trump admits in the complaint that he doesn’t know the exact content of the book, the complaint refers to the public descriptions of the book as containing an “insider’s perspective” of “countless family meals,” “family interactions,” and “family events,” and alleges that “[t]hese descriptions make clear that the book will contain confidential information about Mary L. Trump’s relationship with the Proponents together with the entire Trump family.”

Judge Scheinkman’s decision on appeal found that Robert Trump had not overcome the “heavy presumption against prior restraint on expression.” The court looked to whether—and if so, how—the confidentiality agreement should be enforced in this situation, saying that such agreements are “alternatively enforceable through the imposition of money damages.” Judge Scheinkman recognized that it is the court’s responsibility to “balance the legitimate interests of the party seeking to enforce the contract with other legitimate interests, including, especially in this context, the public interest.”

The appellate court recognized that Simon & Schuster was not a party to the settlement agreement that bound Mary Trump and her agents, and so vacated the TRO against Simon & Schuster, finding that Robert Trump had not yet submitted evidence showing that Simon & Schuster was actually Mary Trump’s agent in this case. The TRO enjoining Mary Trump “together with any agent” (the appellate division deleted the reference to “attorneys, representatives,” and other similar entities from the original TRO) from publishing or distributing the book or any portions thereof “containing descriptions or accounts of Mary L. Trump’s relationship with Robert S. Trump, Donald Trump or Maryanne Trump Barry” stands pending a preliminary injunction hearing (which is currently scheduled for July 10).

This case is the latest effort by the president to quash a book that he fears will be unflattering. Unlike the recent failed efforts to enjoin John Bolton’s book, this case was brought by another member of the Trump family (the president’s brother), and earlier in the publication process, presumably in the hope that this court will not find, as the D.C. court notably did, that “the horse is not just out of the barn—it is out of the country.” Since the preliminary injunction hearing is scheduled for July 10 and the Mary Trump book is due to be released on July 28, we presume that there will be a rapid exchange of legal documents and proceedings until the last possible moment before the book is released—and even afterwards, since the Bolton lawsuit itself is still ongoing.