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Filed: Dutchess County Clerk 07/02/2020 10:20 Pm Index No FILED: DUTCHESS COUNTY CLERK 07/02/2020 10:20 PM INDEX NO. 2020-51585 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 07/02/2020 ****FILED UNDER SEAL – REDACTED PUBLIC VERSION**** SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x ROBERT S. TRUMP, : : Index No. 2020-51585 Plaintiff, : Hon. Hal B. Greenwald - against - : : MEMORANDUM OF LAW MARY L. TRUMP and SIMON & SCHUSTER, : INC., : ORAL ARGUMENT : REQUESTED Defendants. : : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x DEFENDANT MARY L. TRUMP’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166-0193 Telephone: (212) 351-4000 Attorneys for Defendant Mary L. Trump Dated: July 2, 2020 1 of 70 FILED: DUTCHESS COUNTY CLERK 07/02/2020 10:20 PM INDEX NO. 2020-51585 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 07/02/2020 TABLE OF CONTENTS Page PRELIMINARY STATEMENT ................................................................................................... 1 BACKGROUND ........................................................................................................................... 5 I. The Trump Family. ................................................................................................ 5 II. The Settlement Agreement. ................................................................................... 7 A. The Parties. ................................................................................................ 8 B. The Subject Matter. .................................................................................... 8 C. The Confidentiality Provisions. ............................................................... 11 III. Public Information About The Trump Family And Its Finances. ........................ 12 IV. Mary Trump’s Book And This Action................................................................. 15 LEGAL STANDARD .................................................................................................................. 17 ARGUMENT ............................................................................................................................... 19 I. Plaintiff Has Not Established A Likelihood Of Success On The Merits. ............ 19 A. A Prior Restraint Is Not A Constitutionally Permissible Method Of Enforcing The Settlement Agreement’s Confidentiality Provision. ........ 20 B. The Settlement Agreement Does Not Mean What Plaintiff Says And Cannot Be Read to Ban The Book. .................................................. 31 1. The Settlement Agreement, Properly Read, Does Not Prohibit Ms. Trump From Publishing The Book. ........................ 31 2. The Settlement Agreement Is Too Vague To Waive Ms. Trump’s First Amendment Rights Or To Authorize an Injunction. .................................................................................... 38 3. The Settlement Agreement—And Its Confidentiality Provision—Has Expired. ............................................................. 43 4. The Settlement Agreement Was Procured By Fraud And Is Unenforceable. ............................................................................. 48 II. Plaintiff Has Not Shown Irreparable Harm. ........................................................ 49 III. The Equities Do Not Favor Injunctive Relief. ..................................................... 56 CONCLUSION ............................................................................................................................ 59 i 2 of 70 FILED: DUTCHESS COUNTY CLERK 07/02/2020 10:20 PM INDEX NO. 2020-51585 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 07/02/2020 TABLE OF AUTHORITIES Page(s) Cases 19 Patchen, LLC v. Rodriguez, 153 A.D.3d 1382 (2d Dep’t 2017) ...........................................................................................18 Alexander v. United States, 509 U.S. 544 (1993) .............................................................................................................1, 20 Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir. 1975) .................................................................................................24 Anonymous v. Anonymous, 233 A.D.2d 162 (1st Dep’t 1996) ............................................................................................24 People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553 (1986) ........................................................................................................19, 22 Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (S.D.N.Y. Oct. 19, 2011) ....................................................................18, 55 Art Capital Group, LLC v. Getty Images, Inc., 901 N.Y.S.2d 904, 2009 WL 2913531 (Sup. Ct. N.Y. Cty.) .......................................18, 50, 54 Assoc. Press v. United States, 326 U.S. 1 (1945) .....................................................................................................................56 Baker’s Aid, A Div. of M. Raubvogel Co., Inc. v. Hussmann Foodservice Co., 830 F.2d 13 (2d Cir. 1987).......................................................................................................55 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) ...................................................................................................................22 Barranco v. 3D Sys. Corp., 952 F.3d 1122 (9th Cir. 2020) .................................................................................................54 Bartnicki v. Vopper, 532 U.S. 514 (2001) ...........................................................................................................28, 29 BDO Seidman v. Hirshberg, 93 N.Y.2d 382 (1999) ........................................................................................................44, 46 Beter v. Murdoch, 2018 WL 3323162 (S.D.N.Y. June 22, 2018) ...................................................................47, 48 ii 3 of 70 FILED: DUTCHESS COUNTY CLERK 07/02/2020 10:20 PM INDEX NO. 2020-51585 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 07/02/2020 TABLE OF AUTHORITIES (continued) Page(s) Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456 (1957) ................................................................................................................35 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ...........................................................................................................21, 25 Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101, 106 (Tex. App. 2003) .............................................................................27, 41 Caren EE. v. Alan EE., 124 A.D.3d 1102 (3d Dep’t 2015) ...........................................................................................27 CBS, Inc. v. Davis, 510 U.S. 1315 (1994) .........................................................................................................30, 31 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980) .................................................................................................................28 Cervera v. Bressler, 85 A.D.3d 839 (2d Dep’t 2011) ...............................................................................................49 Chapin v. Chapin, 12 A.D.3d 550 (2d Dep’t 2004) .........................................................................................48, 49 Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010) .......................................................................................................2, 42, 56 CNH Indus. N.V. v. Reese, 138 S. Ct. 761 (2018) ...............................................................................................................44 Compania Embotelladora Del Pacifico, S.A. v. Pepsi Cola Co., 607 F. Supp. 2d 600 (S.D.N.Y. 2009)................................................................................43, 48 Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963)...............................................................................................26, 27 Curtis Publ’g Co. v. Butts, 388 U.S. 130 (1967) ...........................................................................................................26, 39 Daniel Perla Assocs. v. Krasdale Foods, Inc., 12 A.D.3d 555 (2d Dep’t 2004) ...............................................................................................38 Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390 (9th Cir. 1991) .................................................................................................42 Democratic Nat. Comm. v. Republican Nat. Comm., 673 F.3d 192 (3d Cir. 2012).....................................................................................................24 iii 4 of 70 FILED: DUTCHESS COUNTY CLERK 07/02/2020 10:20 PM INDEX NO. 2020-51585 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 07/02/2020 TABLE OF AUTHORITIES (continued) Page(s) Denise Rich Songs Inc. v. Hester, 2003 WL 25668881 (N.Y. Sup. Ct. Sep. 22, 2003) .................................................................27 Doe v. Marsh, 105 F.3d 106 (2d Cir. 1997).....................................................................................................41 Doe v. Roe, 42 A.D.2d 559 (1st Dep’t 1973) ..............................................................................................29 Duane Reade v. Rockaway Crossing, LLC, 18 A.D.3d 337 (1st Dep’t 2005) ..............................................................................................53
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