Professional Documents
Culture Documents
654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
:
SIMON 4 SCHUSTER, INC.,
Defendant.
x
___________________________________________________________________________________
Elizabeth A. McNamara
Geoffrey S. Brounell
Cyrus E. Ansari
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
Anthony M. Bongiorno
Executive Vice President 4 Associate General
Counsel, Litigation
CBS Corporation
51 West 52nd Street
New York, NY 10019
Tel: (212) 975-2721
anthony.bongiorno@cbs.com
O'
Michael J. O'Connor (pro hac vice pending)
KELLEY DRYE & WARREN LLP
10100 Santa Monica Blvd., 23rd Floor
4819-9829-7688v.12 3901014-000688
1 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
TABLEOFCONTENTS
Page
"Crash"
A. The Parties Agreed to a Publication Schedule.......................................... 3
D. Procedural History.................................................................................................. 9
ARGUMENI'
ARGUMENT................................................................................................................................ 10
I. LEGAL STANDARD........................................................................................... 10
CONCLUSION............................................................................................................................. 25
4819-9829-7688v.12 3901014-000688
2 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
TABLE OF AUTHORITIES
Page(s)
Cases
Blumberg v. Florence,
143 A.D.2d 380 (2d Dep't 1988).............................................................................................23
Brockhaus v. Basteri,
188 F. Supp. 3d 306 (S.D.N.Y. 2016)......................................................................................20
Bruckmann v. Marsh,
87 A.D.3d 65 (1st Dep't 2011)................................................................................................24
Flomenbaum v NYU,
71 A.D.3d 80 (1st Dep't 2009)................................................................................................10
4819-9829-7688v.12 3901014-000688
3 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Harvey v. Nealis,
61 A.D.3d 935 (2d Dep't 2009)...............................................................................................10
In re Lipper Holdings,
1 A.D.3d 170 (1st Dep't 2003) ................................................................................................25 25
Mpeg La v. Samsung,
2016 WL 6947952 (Sup. Ct., ) NY County Nov. 23, 2016)......................................................23
Seiden v. ANC,
959 F.2d 425 (2d Cir. 1992).....................................................................................................18
111
ill
4819-9829-7688v.12 3901014-000688
4 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Westmoreland v. Entech,
794 N.E.2d 667 (N.Y. ..
2003)..............................................................................................15, 24
Statutes
CPLR 3212.......................................................................................................................................1 .1
CPLR 3212(f).................................................................................................................................10
Rules
iv
4819-9829-7688v.12 3901014-000688
5 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
("
Defendant Simon 4 Schuster, Inc. ("Simon 4 Schuster") respectfully submits this
Memorandum of Law in Opposition to the Motion for Summary Judgment filed by Plaintiff Milo
("Plaintiff"
Yiannopoulos or "Yiannopoulos") pursuant to CPLR 3212.
PRELIMINARY STATEMENT
As this Court is aware, this lawsuit arises from the Agreement that Yiannopoulos entered
into with Simon 4 Schuster to publish a work tentatively titled Dangerous. Plaintiff alleges that
Simon 4 Schuster breached its good faith obligations under the Agreement when it determined
that the manuscript he submitted was unacceptable. Now, Plaintiff asks this Court to set that
determination aside - and before subjecting himself to any discovery or engaging in any
deposition discovery at all - and grant him summary judgment because Simon 4 Schuster
conditions."
breached the Agreement by failing to meet four "pre-termination On the basis of
Plaintiff's pleadings and sworn statements in support of this motion, this motion fails.
Informed by Paragraph 4, which provides that the "Author shall deliver the Work . . . satisfactory
2016,"
to the Publisher in length, content and form on or before December 31, there are two
and proper bases to terminate the Agreement. Paragraph 11 allows the Publisher to
terminate if "Author fails to deliver the complete manuscript, editorially satisfactory to the
2016]."
Publisher in length, content and form, within 30 days of [December 31, Paragraph 13
allows the Publisher to terminate "if in its sole good faith judgment the Work is not acceptable to
it." form,"
After the Author delivers a manuscript in "its complete and final if the Publisher
acceptable,"
determines that the Work is "not editorially it shall notify the Author, request in
supplements"
writing that the Author make "revisions, changes or and thereafter may terminate
Publisher'
if the "revised complete manuscript of the Work delivered by the Author is not, in Publisher's
1
4819-9829-7688v.12 3901014-000688
6 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
acceptable."
sole good faith judgment, editorially
The abstract cynicism and inherent falsity of Plaintiff's motion is laid bare by a simple
restatement of his grounds for the motion. Plaintiff argues that Simon 4 Schuster could not
terminate the Agreement under Paragraph 11 because "Plaintiff timely delivered the Manuscript
2017."
on January 2, Mot. at 9, 21. Of course, this ignores the fact that such delivery is effective
manuscript," Publisher."
only if it was a "complete "editorially satisfactory to the These
In the same breath, Plaintiff argues that Simon 4 Schuster violated the terms of
opportunity to revise the manuscript. Mot. at 12-16. Thus, he asks this Court to ignore the
indisputable facts demonstrating that Simon 4 Schuster, in fact, engaged in a thorough review of
the manuscript Plaintiff delivered, provided an unequivocal communication that the first draft
was not acceptable, complete with copious proposed revisions and changes, and received
Plaintiff's revised manuscript attempting to address such comments. He does so under the
"complete"
pretext that he never declared either draft he delivered to be and therefore, in his
"triggered"
view, Paragraph 13's editorial process was never and Simon 4 Schuster therefore
"complete"
had no ability to terminate. But whether the manuscript was cannot be used as both a
"complete"
sword and a shield. Obviously, the identical draft manuscript cannot be for purposes
"complete"
of Paragraph 11 but not for Paragraph 13. Under Plaintiff's tortured reading, he
could require Simon 4 Schuster to edit his manuscript indefinitely, or at least until he declared a
final."
particular draft "complete and Plaintiff's theory would eviscerate the publisher's right to
1
The Agreement is attached as Exhibit A to the Verified Amended Complaint. See Weingart Aff. Ex. 1 Ex. A. It
"Agmt."
will be cited to throughout this memorandum as the
2
4819-9829-7688v.12 3901014-000688
7 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Either Plaintiff failed to deliver a timely and satisfactory complete manuscript and Simon
the editorial process that followed complied with Paragraph 13. He cannot have it both ways.
The simple truth is that Simon & Schuster's editorial review and ultimate termination fully
complied with the Agreement. Plaintiff cannot avoid this reality by a premature and preemptive
STATEMENT OF FACTS
"Crash"
A. The Parties Agreed to a Publication Schedule.
people."
"sophisticated, counseled business Mot. at 13 (quoting BNYM v. WMC Mortg., 136
A.D.3d 1, 6 (1st Dep't 2013)). Here, as a key element, the parties agreed to publish the Work on
"crash"
what is called a schedule in the publishing industry. Ivers Aff. ¶ 8. Thus, the Agreement
required that the manuscript be delivered soon after the parties reached an agreement in principle
with respect to financial terms and it would be published within months, as opposed to the
normal publishing cycle that may extend for one or more years. Id As per the Agreement,
"complete"
Plaintiff was obligated to deliver the manuscript on December 31, 2016. Agmt. ¶ 4.
Schuster and Plaintiff agreed in principle to an agreement on November 30, 2016. Ivers Aff. ¶ 6;
Compl. ¶¶ 28-29. The Agreement was then negotiated for a few weeks in December 2016. Id.
¶ 7; Compl. ¶ 31. Significantly, Plaintiff was represented by an experienced agent during this
process, Thomas Flannery, from the well-established AGI Vigliano Literary Agency, as well as a
lawyer who reviewed and consented to the final version of the agreement. Id 22-
¶ 7; Compl. ¶¶
29; Wilson Aff. ¶¶ 4-6 Ex. A. Plaintiff signed and returned the Agreement to Simon & Schuster
3
4819-9829-7688v.12 3901014-000688
8 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
on or about December 29, 2016, Wilson Aff. ¶ 14; Compl. ¶ 50; Simon 4 Schuster returned the
signing"
fully-executed Agreement to Plaintiff on January 18, 2017 and paid the "on advance of
termination of manuscripts, with both events squarely within the publisher's good faith,
subjective determination. Paragraph 4(a) required Plaintiff to deliver a work "satisfactory to the
2016."
Publisher in length, content and form on or before December 31, The Work shall be "a
speech."
work of non-fiction on free Agmt. ¶ 4(a).
Manuscript."
Paragraph 11 governs "Failure to Deliver the Timely delivery of the work
form"
that is "editorially satisfactory to the Publisher in length, content and is "essential to the
Agreement."
Publisher and is of the essence of this Id ¶ 11. Indeed:
Publisher."
Id. Any "extension of the delivery date must be in writing signed by the Id ¶ 12.
Manuscript."
Paragraph 13 governs "Acceptance of the It opens with a broad statement
that the "Publisher shall not be obligated to accept or publish the Work if in its sole good faith
it."
judgment the Work is not acceptable to Id ¶ 13(a). Furthermore, acceptance of a complete
manuscript pursuant to Section 13 requires that it "shall be made by written notice signed by an
Publisher."
authorized signatory of the Id ¶ 13(b). Formal acceptance must be accompanied by
a second $80,000 advance. See id ¶ 5 (an additional $80,000 will be paid "on delivery and
Publisher"
acceptance of the complete manuscript of the Work, as satisfactory to the Publisher").
form,"
Following delivery of a manuscript in "complete and final Paragraph 13 sets forth
4
4819-9829-7688v.12 3901014-000688
9 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
certain requirements regarding the editing process - that are at the heart of Plaintiff's motion:
If the Author delivers a manuscript of the Work within the time specified, in what
the Author represents to be its complete and final form, the Publisher shall, within
45 days after its receipt thereof, determine whether the Work is editorially
acceptable to it. If the manuscript of the Work is not editorially acceptable to the
Publisher, the Publisher shall (within said 45-day time period) notify the Author
in writing, stating the reasons therefore, and shall request in writing in reasonable
detail that Author make revisions, changes or supplements ("revisions") thereto,
and Author thereto, and Author shall have 90 days for the revision process.
acceptable"
Id ¶ 13(a). The contractual negotiation concerning what is, or is not, "editorially or
satisfactory"
"editorially as that term is used in Paragraphs 11 and 13 are instructive. The AGI
"form"
template from the publisher's standard agreement when it negotiates with Simon &
Schuster. Wilson Aff. ¶ 5. The parties then make changes to that template to address the
specifies of the particular agreement at issue. Id In this case, Plaintiff's agent Flannery
attempted to modify the standard template to limit Simon 4 Schuster's broad discretion to
Specifically, Flannery proposed new language that would narrowly define the term "editorially
satisfactory"
to mean "a determination made in good faith, based upon objective standards,
whether the work is satisfactory in form and content. Good faith rejecdons shall not be based
considerations."
upon economic Id ¶¶ 8-13 Ex. A (emphasis added). Significantly, Simon &
Schuster rejected this proposed language, and the final version of the fully-executed Agreement
does not contain Flannery's proposed limiting language. Id Tellingly, Flannery fully
understood the consequences of Simon 4 Schuster's refusal to limit its discretion in determining
whether the Work was acceptable or not: "If you refuse to put [in his proposed def nition of
"editorial satisfactory"), then you can reject based on market conditions and not on the merit
work." "
of the work Id (emphasis added).
5
4819-9829-7688v.12 3901014-000688
10 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Finally, per the Agreement, Plaintiff also agreed "to be available for promotion and
publicity on behalf of the Work and to travel on a promotional and publicity tour, including
appearances."
television appearances, radio and press interviews and personal Agmt. ¶ 16(g).
C. Simon & Schuster Adhered to the Editorial Process Set Forth in Paragraph
13 in Rejecting Plaintiff s Manuscript and Terminating the Agreement.
Undisputed Material Facts ("Pl.'s SOF") ¶¶ 2, 3. Mitchell Ivers understood the submitted draft
to be a complete draft of the manuscript and he had no doubt that it was intended to commence
the editorial process envisioned by Paragraph 13 of the Agreement. Ivers Aff. ¶ 10. Thus, less
than two weeks later, on January 13, 2017, Ivers sent back a heavily marked-up version of the
supplements."2
supplements."
manuscript with countless detailed proposed "revisions, changes or Ivers Aff.
("
Ex. B. The next day, on January 14, 2017, Ivers sent Plaintiff a follow-up e-mail ("January 14
E-mail"
E-mail"), summarizing the conversation he had with Plaintiff and his agent the day before in
which he outlined his editorial concerns with the manuscript, including seven most critical
overarching issues. He explained that "these are the seven main issues that must be addressed in
throughout."
the revised manuscript, in addition to the edits and queries Ivers Aff. Ex. C. In
Me"
particular, Ivers noted that the "Why Establishment Gays Hate chapter "needs a better
closet"
central thesis than the notion that gay people should go back in the and the feminist
chapter needed a "stronger argument against feminism than saying that they are ugly and sexless
cats."
and have Id. Ivers made it clear that Plaintiff's first draft was not acceptable to the
publisher: "[I]t goes without saying, that in addition to these seven points, given the level of
revision being requested, we reserve the right of additional review and discussion of
2 acceptable"
Under the Agreement, the determination as to whether the manuscript was "editorially must be made
days."
"within 45 Agmt. ¶ 13(a). Given the crash schedule, Ivers made that determination and provided the
editorial request in writing for revisions and changes within less than two weeks of receipt of the manuscript.
6
4819-9829-7688v.12 3901014-000688
11 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
acceptability."
Id
Ivers'
comments on the draft manuscript were even more detailed in identifying the
substantial concerns the publisher had with the manuscript and spelling out what "revisions,
supplements"
changes or were required. Ivers Aff. Ex. B. At the outset, he observed that there
Correctness"
needs to be a Preamble "On Freedom of Speech and Political that would be a "short
and serious statement here that sets out why you do what you do, without trolling, without
ego."
bombast, without name-calling, and without Id at 3. See also, e.g., id at 13 ("avoid
("
Fake News."), 34 ("MAJOR POINT: . . . You will have to address the charge of racism clearly
and with greater 62 ("when you discuss Leslie Jones in this book - AND YOU
depth"),
(' ("
MUST"), 107 ("This section feels phenomenally petty"), 132 ("This whole section has to go.
('
poorly thought out section in the book."), 206 ("This... doesn't make sense or pass intellectual
seriously" Ivers'
muster. It's just trolling on an issue that many readers . . . might take seriously"). As
January 14 E-mail and manuscript comments demonstrate, Ivers considered Plaintiff's first draft
to be, at best, a superficial work full of incendiary jokes with no coherent or sophisticated
analysis of political issues of free speech. Ivers Aff. ¶¶ 15-16. Plainly, it was not acceptable to
and public concerns surrounded Simon 4 Schuster's decision to sign Plaintiff to an agreement.
Compl. ¶¶ 34-43. Notwithstanding these concerns, Simon 4 Schuster executed the Agreement
and paid the first and only $80,000 advance to Plaintiff on January 18, 2017. Wilson Aff. ¶ 14;
Compl. ¶¶ 50-51. Then, on January 23, 2017, Carolyn Reidy, President and Chief Executive
7
4819-9829-7688v.12 3901014-000688
12 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Officer of Simon 4 Schuster, published a letter defending the decision to enter into the
Agreement with Plaintiff but stating "[fjirst and foremost, I want to make clear we do not
speech."
support or condone, nor will we publish, hate Further, "I also recognize that there may
be a genuine debate to be had about who should be awarded a book contract. For us, in the end,
it ultimately comes down to the text that is written. And here I must reiterate that neither
Threshold Editions nor any other of our imprints will publish books that we think will incite
bullying."
hatred, discrimination or Compl. Ex B.
Weeks after Reidy's public letter, Plaintiff submitted his revised manuscript on February
14, 2017. See Pl.'s SOF ¶ 9. Notwithstanding Plaintiff's self-serving cover e-mail in which he
15-16.3
communicated serious editorial concerns remained. Ivers. Aff. ¶¶ 15-16. Among other issues,
"humor"
the manuscript remained riddled with what Plaintiff labeled but actually constituted the
incendiary speech that Mrs. Reidy declared that Simon & Schuster would never publish. See id.;
Compl. Ex B. These serious concerns about the quality of the Work were compounded by
multiple issues that informed whether the work would be acceptable for publication. For
instance, Simon 4 Schuster determined that it would be unable to market properly the work
because Plaintiff's public appearances in January 2017 left significant violence in his wake.
Ivers Aff. ¶ 17; Compl. ¶¶ 63-66. Similarly, various booksellers had indicated that they might
not sell the book. Ivers Aff. ¶ 18. Thus, Simon & Schuster was of the firm view that the
manuscript was unsatisfactory and unacceptable to publish. Before any action was taken to
notify him of the decision, the news broke concerning the video interviews of Yiannopoulos
3
Plaintiff's cover email confirmed that the revised manuscript was now 80,000 words, which exceeded by 15,000
"complete"
words the length required for a manuscript. Agmt. ¶ 4(a).
8
4819-9829-7688v.12 3901014-000688
13 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
where he appeared to be condoning pedophilia. Ivers Aff. ¶ 20; Compl. ¶¶ 5, 101. This was of
particular concern to Simon & Schuster given that the draft manuscript flippantly addressed not
only Plaintiff s alleged abuse by a priest but also his teenage sex with older men. Ivers Aff. ¶ 20
interracial fivesomes with drag queens, seducing my English teacher and parish priest and
For all of these and related reasons, on February 20, 2017, Simon 4 Schuster informed
Plaintiff s literary agent that Yiannopoulos's work was unacceptable for publication. Compl.
¶ 80; Weingart Aff. Ex. 2 ¶ 80; Ivers Aff. ¶¶ 19-22. On February 22, Simon & Schuster sent a
letter to Yiannopoulos, in care of Thomas Flannery, J 0 that stated, "We have been advised that the
publication."
above Work is unacceptable for See Compl. Ex I; Wilson Aff. Ex. B.
D. Procedural History.
Plaintiff filed a Complaint on July 7, 2017 and an Amended Complaint on August 16,
2017. Simon 4 Schuster's motion to dismiss the Amended Complaint based on the doctrine of
accord and satisfaction was denied on October 5, 2017, subject to discovery on the issue. Since
then, Simon & Schuster has produced an immense amount of document discovery in response to
Plaintiff s requests: approximately 40,000 pages, accompanied by a full and detailed privilege
log. Meanwhile, Plaintiff asked (and received) a substantial extension to produce documents, but
before producing a single document, he filed this premature motion for summary judgment.
4
Notably, no depositions have occurred and no discovery from the Plaintiff has been produced.
4
Simon 4 Schuster also has subpoenaed but is still waiting to receive documents from Thomas Flannery, Plaintiff's
agent, and expects to subpoena other parties for documents and testimony critical to its defense in this case,
including Allum Bokhari, Plaintiff's ghost writer.
9
4819-9829-7688v.12 3901014-000688
14 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
ARGUMENT
L LEGAL STANDARD
issue of fact exists, and the Court must draw all factual inferences in favor of Simon 4 Schuster,
the non-moving party. Flomenbaum v NYU, 71 A.D.3d 80, 91 (1st Dep't 2009). "[A] court may
judgment."
not resolve factual issues on a motion for summary Schwartz v. 271 Venture, 172
A.D.2d 226, 228 (1st Dep't 1991). Thus, the Court must deny Yiannopoulos's motion "where
there is any doubt as to the existence of a factual issue or where the existence of a factual issue is
arguable."
even Asabor v Archdiocese of N.Y., 102 A.D.3d 524, 525 (1st Dep't 2013) (citing
Glick & Dolleck, Inc. v. Tri-Pac Export Corp., 239 N.E.2d 725, 726 (N.Y. 1968)).
Should it appear that "facts essential to justify opposition may exist but cannot then be
continuance."
stated, the court may deny the motion or may order a CPLR 3212(f).
Accordingly, it is well-settled when a party has not yet had the opportunity to receive discovery
and conduct depositions, the granting of summary judgment on the issue of liability against it is
almost always premature. See, e.g., Genesee/Wyoming YMCA v. Bovis Lend Lease, 98 A.D.3d
"premature"
1242, 1245 (4th Dep't 2012) (holding it was to grant summary judgment for breach
of contract, "because discovery has not been completed, including depositions concerning
[party's] performance of its obligations under the [contract]"); Schlichting v. Elliquence Realty,
116 A.D.3d 689, 690 (2d Dep't 2014) (summary judgment premature because plaintiff's motion
made prior to deposition of plaintiff); Harvey v. Nealis, 61 A.D.3d 935 (2d Dep't 2009) (motion
was premature where no discovery had taken place and neither party had been deposed); Uddin
v. City of N.Y., 52 A.D.3d 422 (1st Dep't 2008) (motion held to be premature where opposing
party had not yet had the opportunity to conduct any discovery).
This principle rings particularly true in this case. For example, this entire motion rests on
10
4819-9829-7688v.12 3901014-000688
15 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
"incomplete"
Plaintiff's untested characterization of his manuscript as in a sworn affidavit.
Simon 4 Schuster should have the opportunity to cross examine Plaintiff on this point and many
other open issues. Similarly, as this Court is aware, discovery is necessary surrounding Simon &
Schuster's accord and satisfaction defense. In similar circumstances, the First Department has
squarely held that summary judgment motion is premature: "Summary judgment should not be
of'
granted where there are likely to be defenses that depend upon knowledge in the possession of
discovery."
the party moving for summary judgment which may be disclosed by Aubrey
Equities v. SM Z H-73rd, 212 A.D.2d 397 (1st Dep't 1995) (emphasis added). Facts essential to
Simon 4 Schuster's defenses on this motion and its accord and satisfaction defense - relating to
whether Plaintiff accepted the accord and his intent to repay the $80,000 advance - will be
solicited through discovery, including during Plaintiff's deposition. This Court should deny this
motion not only because it is without any legal merit whatsoever, but also because it would be
premature to grant summary judgment to Plaintiff at this early stage in the proceedings.
An entire body of New York law has developed interpreting publishing agreements
nearly identical to the Agreement at issue here. The heart of this law makes clear that Simon &
Schuster had broad discretion to decide whether Yiannopoulos's manuscript was satisfactory and
publishers doing business here. A flurry of cases, largely in the 1980s, determined the standards
for terminating book publishing agreements. These core principles have remained in place for
the intervening forty years, and guide virtually all publishing agreements, including the one at
11
4819-9829-7688v.12 3901014-000688
16 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
issue here. Courts interpreting New York law have consistently concluded that publishing
agreements similar to the Agreement here provide publishers with significant discretion to
terminate based on their subjective judgment. See, e.g., Doubleday 4 Co. v. Curtis, 763 F.2d
495, 497 (2d Cir. 1985) (publisher's termination did not breach agreement with provisions
similar to those in the Agreement here); Gregory v. Simon 4 Schuster, 1994 WL 381481, at *1-2
(S.D.N.Y. July 19, 1994) (same), aff'd, 60 F.3d 812 (2d Cir. 1995); Random House v. Gold, 464
F. Supp. 1306, 1310 (S.D.N.Y. 1979) (same), aff'd, 607 F.2d 998 (2d Cir. 1979); Stein 4 Day v.
Morgan, 1979 N.Y. Misc. LEXIS 2983 (Sup. Ct., NY County June 5, 1979) (same);
HarperCollins Pub'r v. Arnell, 2009 WL 1119517 (Sup. Ct., NY County Apr. 15, 2009) (same).
Early on, it was established that there was an implied duty to conduct at least "rudimentary
effort"
editorial work or in any publishing agreement. Harcourt Brace Jovanovich v. Goldwater,
532 F. Supp. 619, 624 (S.D.N.Y. 1982). In Goldwater, the editor initially offered to do vigorous
work."
editorial work, but ultimately did not perform "any editorial Id. at 621 (emphasis added).
The obligation to do some editorial work was refined in Dell Publ'g Co. v. Whedon, 577 F. Supp.
1459 (S.D.N.Y. 1984), in which the Court held that a publisher must provide the author with
accordingly."
"editorial commentary and the opportunity to revise Id. at 1465.
In the wake of these cases, the Second Circuit's decision in Doubleday distilled these
principles into the governing standard for terminating book publishing agreements. There, the
court held that the publisher properly terminated within the scope of its broad discretion under an
form."
content and Doubleday, 763 F.2d at 497. Just like the Agreement at issue here, the
"acceptance"
contract in Doubleday made the second advance payment due on of a "complete
manuscript."
satisfactory Id. And like the Agreement before this Court:
12
4819-9829-7688v.12 3901014-000688
17 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
[The publisher's] performance was again contingent upon [the author's] ability to
"satisfactory"
produce a manuscript by a date no later than [the due date].This
"form" "
deadline, as well as the conditions relating to acceptable and "content,
"
were expressly stated to be "of the essence of the Agreement The document
further stated that failure to comply with the satisfaction clause granted the
publisher the right to terminate the contract[.]
Id. (emphasis added). Under those terms, the Doubleday court held that: "[A] publisher may, in
its discretion, terminate a standard publishing contract, provided that the termination is made in
faith."
good Id. at 501 (emphasis added). Beyond a duty of good faith, the court found nothing
limiting the publisher's discretion under the agreement's terms. See id.
"honestly,"
In determining good faith, the court held that editors must perform not
"skillfully,"
but the court did not imply a duty to perform adequate editorial services into the
contract. Id. at 500. The publisher in Doubleday satisfied that standard where it submitted a
seven-page letter to the author providing editorial comments. Id. at 498. The author claimed he
had "not received the slightest indication that [the manuscript] would not be accepted for
publication," seven-
and, indeed, the record showed that "sprinkled among this criticism [in the
praise."5
page letter] was But those facts did not deter the court's conclusion that the publisher
terminated in good faith. Id. at 498-99. One round of edits met the publisher's obligation before
Since Doubleday the law has remained well-settled, and in the relatively few more recent
cases that have addressed termination provisions of publishing agreements, they have almost
instructive, as the agreement in that case was virtually identical to the one here. It required a
5
Positive comments from a publisher, like those repeatedly emphasized by Plaintiff here, do not evidence bad faith.
In Nance v. Random House, 212 F. Supp. 2d 268 (S.D.N.Y. 2002), af d, 63 F. App'x 596 (2d Cir. 2003), for
example, it was of no consequence that the editor's comments on the partial draft were positive (it had "a lot of great
things going"). Id. at 271. The publisher suggested an outline for a rewrite and, like here, reserved the right not to
accept. Id. After the author sent a second draft, the publisher permissibly terminated. Id. at 272-74.
13
4819-9829-7688v.12 3901014-000688
18 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
1994 WL 381481, at *1, *3-4. Just like the Agreement here, the second advance in Gregory was
not due until "acceptance by Publisher of the complete manuscript for the Work as satisfactory to
form"
Publisher in content and and termination should be based on the "Publisher's bona fide
judgment."
editorial Id. at *1, *4. The publisher in Gregory (Simon 4 Schuster) terminated the
agreement aner the author submitted three unsatisfactory drans. Id. ARer reviewing essentially
identical terms, the court concluded that Simon 4 Schuster's standard agreement "grants
obligations."
publishers wide discretion in the performance of their Id. at *2 (emphasis added).
In other words, the publisher's subjective view of acceptability generally should not be
second-guessed. Consider, for example, Random House v. Gold. There, the contract, just like
the Agreement in this case, required the author to deliver a manuscript "in content and form
publisher."
satisfactory to the Gold, 464 F. Supp. at 1307. Aner the author submitted a first
of the manuscript, received comments from the publisher, and submitted a revised
of'
manuscript, the court held that the publisher permissibly terminated based on "a range of
factors," form,"
on the grounds that the author "failed to deliver [the manuscript] in satisfactory
"undelivered"
which made the manuscript an work. Id. at 1308-11. As part of its acceptability
determination in Gold, the publisher reviewed the poor financial results from the author's two
prior books. Id. at 1307-08. The plaintiff in Gold argued bad faith because of undue weight to
financial considerations. Rejecting that view, the court held that the publisher permissibly
14
4819-9829-7688v.12 3901014-000688
19 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Id. at 1308. Another court interpreting New York law came to the same result in Brabec v.
Delmar Thomson Learning, 2000 WL 34233872, at *4, *7 (W.D. Wis. Dec. 20, 2000) (holding
that, where publisher determined acceptability in its sole judgment, publisher could consider that
professors were unlikely to adopt the manuscript intended as a textbook, despite the fact that the
publisher had initially told the author that the manuscript has positive reviews).
The operative provisions of the Agreement here are informed by, and largely track, these
governing principles. Reading each provision of the Agreement with reference to its whole, the
parties agreed that Simon & Schuster could terminate the Agreement if the manuscript was
unsatisfactory to Simon 4 Schuster within its broad, subjective and good faith judgment.
Under well-recognized New York rules of construction, the Court should construct the
Agreement as a whole, and should not look at any one provision in isolation or interpret it in
conflict with other provisions. See Westmoreland v. Entech, 794 N.E.2d 667, 670 (N.Y. 2003)
("A written contract will be read as a whole, and every part will be interpreted with reference to
the whole; and if possible it will be so interpreted as to give effect to its general purpose.").
Further, "it is a well settled rule of contract interpretation that an agreement should be interpreted
provisions."
to avoid inconsistencies and to give fair and ordinary meaning to all of its terms and
Little, Brown 4 Co. v. Klein, 1993 WL 643380, at *4 (N.Y. Sup. Ct. Aug. 13, 1993). Throughout
the Agreement, the parties agreed to terms establishing Simon 4 Schuster's good faith discretion
broad judgment, entirely consistent with well-established New York law. In keeping with the
provisions at issue in case after case, the Agreement underscores Simon & Schuster's discretion:
Paragraph 4(a): The Author shall deliver the Work in the English language,
15
4819-9829-7688v.12 3901014-000688
20 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Paragraph 13(a): The Publisher shall not be obligated to accept or publish the
it."
Work in its sole good faith judgment the Work is not acceptable to
Then, as per the governing law, the Publisher's duty to provide some editorial guidance
before terminating is also set forth in the Agreement. See, e.g., Goldwater, 532 F. Supp. at 624.
form,"
"complete and final Simon 4 Schuster was obligated to notify the Author if it determined
the work not editorially acceptable. Further, it was to "request in writing in reasonable detail that
...."
Author make revisions, changes or supplements Agmt. ¶ 13(a). Only after submission of a
judgment"
revised manuscript could the Publisher terminate if in its "sole good faith the revised
...." 13(d).6
manuscript was not "editorially acceptable to the Publisher Id. ¶ 13(d).
16
4819-9829-7688v.12 3901014-000688
21 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Yiannopoulos's motion - which disregards both the express language of the Agreement
and governing case law - rests on the argument that Simon 4 Schuster breached the Agreement
because it failed to comply with the editorial process set forth in Paragraph 13, or as he argues,
precedent"
Simon 4 Schuster failed to comply with the four "conditions to termination set forth
in that Paragraph. Mot. at 12. But Plaintiff goes a step further and also argues that this Court
"trigger"
should ignore the editorial process that indisputably did occur because the for this
process never happened as Plaintiff did not unilaterally declare his two draft manuscripts to be
"complete" "final."
or Id. at 16. This argument rests on an inherent contradiction that is fatal to
his entire motion. By the express terms of the Agreement, the provisions of Paragraph 13 apply
only after Yiannopoulos submits a manuscript "in what [Yiannopoulos] represents to be its
form."
complete and final If, as he now concedes under oath, he never delivered a complete and
final manuscript, the provisions of Paragraph 13 are irrelevant and most certainly were not
breached. Instead, as established below, Simon & Schuster's termination was fully in keeping
with Paragraph 11 of the Agreement. For this reason alone, the Court may deny the entire
motion: on its face, Paragraph 13 does not apply based on Yiannopoulos's sworn statements.
form"
Yiannopoulos's hyper-technical reading of "complete and final does not comply
with common sense or the law. There can be little dispute that Plaintiff's January 2 delivery of a
complete draft of the manuscript set the editorial process in motion. Ivers Aff. ¶¶ 9-12. The law
dictates such a conclusion. In Gregory, the court interpreted virtually identical contractual
language and had no trouble rejecting the same nonsensical argument that termination was
manuscript."
premature because the author had not delivered a "complete and final Gregory,
17
4819-9829-7688v.12 3901014-000688
22 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
1994 WL 381481, at *1. Like here, the plaintiff argued that Simon & Schuster had anticipatorily
breached by terminating before she had submitted what she declared to be a "final revised
manuscript."
complete In fact, however, the manuscript had gone through two revisions before
termination. Id. Accordingly, the court found that Plaintiff's anticipatory breach argument
manuscript.'"
Id. at *4. Reading the operative provisions together, as it must, the court held that
the Agreement "unambiguously grant[s] defendant the power to invoke the termination clause
and reject any manuscript submitted after plaintiff has had at least one opportunity for revisions.
Thus, any one of the revised manuscripts Gregory submitted . . . was a 'final revised complete
manuscript' Agreement]."
within the meaning [of the Id. at *5 (emphasis added). In language
'final' -
Under plaintiff's line of reasoning, the manuscript is not and thus
ineligible for the publisher's termination power - until the author has
triggering
incorporated all of the editor's suggestions. This cannot be the intended meaning
of the termination clause, which expressly contemplates a point at which the
publisher no longer wants to allow the author more time to produce a satisfactory
manuscript. If S&S were required to wait until the author did in fact successfully
incorporate all of its suggestions, there would be no means of terminating the
Agreement.
Id. Here, too, under Yiannopoulos's reasoning, Simon & Schuster would be required to go
through endless rounds of revisions and could never terminate until, and if, he declares a
final."
particular draft is "complete and Plaintiff's theory would eviscerate the publisher's clear
right to terminate the Agreement in its discretion, because the author would independently
' complete."
control when the work was "final and Notably, "[c]ontract language that is clear and
interpretations."
unambiguous is not made ambiguous simply because the parties urge different
Gregory, 1994 WL 381481, at *4 (citing Seiden v. ANC, 959 F.2d 425, 428 (2d Cir. 1992)).
18
4819-9829-7688v.12 3901014-000688
23 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
B. Simon & Schuster Fully Complied with the Provisions of Paragraph 13.
of his draft manuscript on January 2, 2017 and his revised draft on February 14, 2017, Simon 4
Schuster fully complied with the editorial process set forth in the Agreement. Plaintiff's
plausibly contend that he was not provided with unequivocal notice that his first draft was not
editorially acceptable.
Ivers'
January 14 E-mail - that detailed his criticism and explained that
"these are the seven main issues that must be addressed in the revised
manuscript" - together
with his mark-up of the draft manuscript, communicated but one conclusion: the manuscript
needed a lot of work and was not acceptable. See Ivers Aff. Exs. B, C. This is more than
sufficient notice. Paragraph 13(a) of the Agreement does not require anything more than that the
notice be provided "in writing": "If the manuscript of the Work is not editorially acceptable to
writing."
the Publisher, the Publisher shall . . . notify the Author in Plaintiff's argument rests on
writing"
a formality that the Agreement does not require. Indeed, Paragraph 13(a)'s notice "in
contrast, when it comes to accepting the manuscript, a formal notice requirement is set forth in
Paragraph 13(b), which states that acceptance (not rejection) of the Manuscript "shall be made
Publisher."
by written notice signed by an authorized signatory of the When language is omitted
from one provision but included in another, it must be assumed that the omission was intentional.
Sterling Inv'r Servs. v. 1155 Nobo Assocs., 30 A.D.3d 579, 581 (2d Dep't 2006) (citing United
States Fid. 4 Guar. Co. v. Annunziata, 492 N.E.2d 1206 (N.Y. 1986)).
Ivers'
Further, January 14, 2017 E-mail expressly "reserve[d] the right of additional
acceptability."
revisions and discussion of Ivers Aff. Ex. C. Again, this written notice can have
19
4819-9829-7688v.12 3901014-000688
24 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
"acceptability,"
but one meaning: by reserving the discussion of it was plainly communicated
that Plaintiff's first draft was unacceptable. To argue otherwise defies logic and the
Simon & Schuster Provided Detailed Written Reasons Why the Manuscript was
Unacceptable. . The record also establishes beyond dispute that, as per Paragraph 13(a),
Yiannopoulos was provided in writing with a detailed explanation of the "revisions, changes or
supplements"
that must be addressed in the revised manuscript. Nothing in the Agreement
"reasons"
requires that the be provided with some kind of formality. Instead, providing the
reasons the manuscript was unacceptable in the form of commentary to a draft manuscript,
manuscript"
coupled with a letter identifying the "main issues that must be addressed in a revised
law.'
plainly suffices under the Agreement and the governing law. See, e.g., Doubleday, 763 F.2d at
498, 501 (publisher permissibly terminated after sending letter with written comments on the
first draft); Nance, 212 F. Supp. 2d at 270-71 (same). Either of these communications is enough
to satisfy the Agreement's requirement to request one revision. Cf Brockhaus v. Basteri, 188 F.
Supp. 3d 306, 317 (S.D.N.Y. 2016) (email constituted a writing sufficient for requirement that
termination be in writing).
Plaintiff's argument to the contrary rests entirely on the theory that because he did not
final,"
declare his January 2 draft manuscript "complete and this Court should just ignore this
indisputable editorial process. Plaintiff cannot avoid reality and nor should the Court. As noted
above, either his January 2 manuscript started the editorial process envisioned by Paragraph 13,
"complete"
or Plaintiff failed to timely deliver a manuscript consistent with Paragraph 11.
'
See also supra at 7 for representative examples of the countless demands of requested "revisions, changes or
supplements"
contained in the edits and comments on the draft manuscript returned to Plaintiff on January 13, 2017.
Ivers AfE Ex. B.
20
4819-9829-7688v.12 3901014-000688
25 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Plaintiff Submitted a Revised Manuscript within 90 Days. Plaintiff next asserts that
Simon 4 Schuster failed to provide him with the requisite 90-days to make revisions. This
argument fails for the basic reason that it relies on the same false predicate that Simon 4
Schuster never provided the requisite notice of unacceptability. However, as established, Simon
& Schuster provided sufficient notice of unacceptability on January 13-14, 2017 when it returned
requested,"
Plaintiff's first draft with demands for revisions and, "given the level of revision
reserved the right to review and discuss acceptability. Per the Agreement, "Author will make
therefor."
revisions as promptly as possible after Publisher's request Agmt. ¶ 13(a). Consistent
with that obligation, Yiannopoulos provided a revised draft to Simon & Schuster a month later,
on February 14, 2017, well within the Agreement's 90-day limit. (See Pl.'s SOF, ¶ 9.) Nothing
more is required under the Agreement. Indeed, the 90 days is an outside date, not a definite
"resubmission"
period. If, as here, the Author provides a within the 90 days, Simon 4 Schuster
is entitled to reject that resubmission if it determines that the revised manuscript is not editorially
(d).8
acceptable to the Publisher. Agmt. ¶ 13(a), (d).
Simon & Schuster's Termination Notice Complied with the Agreement. Plaintiff
places particular emphasis on the fact that the February 22 termination letter stated that the
publication"
manuscript was "unacceptable for and did not state that the manuscript was
unacceptable."
"editorially Mot. at 13. Accordingly, he argues that this somehow acted as an
independent breach of the Agreement. However, the Agreement plainly states in the first
sentence of Paragraph 13(a) that the "Publisher shall not be obligated to accept or publish the
it."
Work if in its sole good faith judgment the Work is not acceptable to Agmt. ¶ 13(a)
8
To find
otherwise, would again eviscerate the Publisher's plain discretion to terminate the Agreement after
affording the Author one opportunity to revise the manuscript. Plaintiff's focus on the 90 day language would make
sense if Simon 4 Schuster terminated the Agreement before the Author resubmitted the manuscript and before 90
days had run. But, here, when the author provides his resubmission, no logic dictates that termination is not allowed
because he sent the revised draft before the 90 days had run.
21
4819-9829-7688v.12 3901014-000688
26 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
(emphasis added). The termination letter tracks the precise language of the Agreement.
it"
(Compare Agmt. ¶ 13(a) with Wilson Aff. Ex. B: "Work is not acceptable to versus "Work is
publication"
unacceptable for publication"). Plaintiff's position is untenable on its face.
Further, the Agreement requires that the Work must be "satisfactory to the Publisher in
form,"
length, content and Agmt. ¶ 4(a), "editorially satisfactory to Publisher in length, content
"interchangeable"
(e). Plaintiff argues that these phrases cannot be and even admits that a
"manuscript could be unacceptable for publication for a host of reasons not related to its editorial
content, including the perceived inability of the publisher to sell the book, or adverse
manuscript."
consequences to the publisher from publishing a controversial Mot. at 13
(emphasis in original). Yet, he makes no attempt to grapple with the Agreement itself - which
controlling law making it clear that there is "no authority . . . for the proposition that a
publisher's financial circumstances and the likelihood of a book's commercial success must be
excluded from the range of factors that may be weighed in the decision to accept or reject a
publication."
manuscript offered for Gold, 464 F. Supp. at 1308. Over and over the Agreement
no limiting definitions for these terms and this Court cannot add a gloss to the language that does
not exist. Gregory, 1994 WL 381481, at *4 ("Court's primary objective is to give effect to the
intent of the parties as revealed by the language they chose to use."); Little Brown, 1993 WL
("
643380, at *4 ("Courts may not rewrite contracts nor 'by construction add or excise terms, nor
distort the meaning of those used and thereby 'make a new contract for the parties under the
guise of interpreting the writing.'") (internal citations omitted). Plaintiff's argument that the
22
4819-9829-7688v.12 3901014-000688
27 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
termination letter failed to comply with the terms of the Agreement is without merit.
"preconditions"
Accordingly, Simon 4 Schuster complied with all four of Paragraph 13
pursuant to the plain language of the Agreement and the well-established case law interpreting
Agreement.9
that Agreement. The Court must therefore deny Plaintiff's motion for summary judgment.
as he now swears in his Affidavit - and this Court concludes that Simon & Schuster is
precluded from ever terminating the Agreement pursuant to Paragraph 13 until the Author
final,"
declares a draft manuscript is "complete and then there is no dispute that Simon 4
Under Paragraph 1 l 's express terms, Simon 4 Schuster was permitted to terminate the
Agreement: "If Author fails to deliver the complete manuscript . . . within 30 days of the time
specified, the Publisher shall have the option to give the Author a notice in writing prior to
Agreement." specified"
delivery of the Work terminating this (emphasis added). The "time is set
forth in Paragraph 4(a): December 31, 2016. Here, on this motion for summary judgment,
final"
submitted to Simon 4 Schuster was in "complete and form. See Yiannopoulos Aff. ¶ 4.
23
4819-9829-7688v.12 3901014-000688
28 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
facts"
Yiannopoulos also introduces this as "undisputed material in his Statement of Undisputed
Material Facts. (See Pl.'s SOF ¶¶ 3, 11.) Accordingly, these facts must "be deemed to be
motion."
admitted for purposes of the Commercial Division Rule 19-a(c). Because it is now
admitted that Yiannopoulos failed to submit a complete manuscript on either January 2, 2017 or
February 14, 2017, Simon 4 Schuster was permitted to terminate the Agreement by giving the
writing"
Author the requisite "notice in after the 30-day time limit passed. Simon 4 Schuster
provided this notice on February 22, 2017. See Weingart Aff. Ex. 1 Ex. I. This was more than
30 days after December 31, 2016, and the termination accordingly fully satisfied Paragraph 11.
Publisher" "complete"
work that is both "editorially satisfactory to the and within 30 days of the
Agreement's delivery date. Indeed, unlike the provisions of Paragraph 13, allowing termination
"complete"
because the manuscript is not editorially acceptable, timely delivery of a manuscript
publisher" Agreement."
under Paragraph 11 is "essential to the and is "of the essence of the It is
black-letter law that contracts must be construed to give full meaning to all of their provisions.
See Bruckmann v. Marsh, 87 A.D.3d 65, 70-71 (1st Dep't 2011) (finding meaning in all of the
words in a clause to avoid rendering words "superfluous and without meaning"); New Colony
Homes, Inc. v. Long Island Prop. Grp., LLC, 21 A.D.3d 1072, 1072 (2d Dep't 2005) (a clause
essence"
made "of the requires strict compliance). Further, Paragraph 11 must be read in
conjunction with Paragraph 13. See Westmoreland, 794 N.E.2d at 670. Thus, Paragraph 11
"complete"
requires Yiannopoulos to submit a manuscript within 30 days of December 31, 2016,
and sets forth a method to terminate if Yiannopoulos fails to deliver. By contrast, the editorial
process in Paragraph 13 - the focus of Yiannopoulos's motion for summary judgment - only
applies once "the Author delivers a manuscript of the Work within the time spectfed, in what
24
4819-9829-7688v.12 3901014-000688
29 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
andfnalform." form."
the Author represents to be its complete andgnul Agmt. ¶ 13(a) (emphasis added). If
"complete"
Yiannopoulos never submitted a manuscript, then Paragraph 11 must govern.
Plaintiff's proposed interpretation not only contravenes the plain language of the
Agreement as a whole but would also lead to an absurd result. Courts reject contractual readings
that are commercially unreasonable. See, e.g., In re Lipper Holdings, 1 A.D.3d 170, 171 (1st
Dep't 2003) (agreement should be read as a whole, and the reasonable discretion that agreements
accorded to general partner should be construed widely enough to avoid a result that was absurd
"complete"
or commercially unreasonable). According to Plaintiff, the manuscript cannot be
"triggered"
until he certifies that it is complete and the provisions of Paragraph 13 are not until
"complete"
then. At the same time, a delivery of the same manuscript must be deemed for
purposes of a timely delivery under Paragraph 11. If both propositions were true, Defendant
would - contrary to both the plain language of the Agreement and common sense - be
perpetually obligated to edit Yiannopoulos's drafts while never being able to terminate until
"certifies"
Plaintiff that the manuscript was complete. This result is obviously not what the
Plaintiff either submitted a complete manuscript and Simon & Schuster properly
terminated pursuant to Paragraph 13, or Plaintiff never submitted a complete manuscript and
Simon 4 Schuster properly terminated pursuant to Paragraph 11. Either way, this Court should
CONCLUSION
For the foregoing reasons, Simon & Schuster respectfully requests that the Court deny
25
4819-9829-7688v.12 3901014-000688
30 of 31
FILED: NEW YORK COUNTY CLERK 12/21/2017 05:07 PM INDEX NO. 654668/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/21/2017
Geoffrey S. Brounell
Cyrus E. Ansari
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
New York, New York 10020-1104
Anthony M. Bongiorno
Executive Vice President 4 Associate General
Counsel, Litigation
CBS Corporation
51 West 52nd Street
New York, NY 10019
Tel: (212) 975-2721
anthony.bongiorno@cbs.com
O'
Michael J. O'Connor (pro hac vice pending)
KELLEY DRYE & WARREN LLP
10100 Santa Monica Blvd.
Twenty-Third Floor
26
4819-9829-7688v.12 3901014-000688
31 of 31