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SUPREME COURT OF THE STATE OF NEW YORK


COUNTY OF NEW YORK

MILO YIANNOPOULOS, Index No. 654668/2017


Motion Sequence: 003
Plaintiff,
Honorable Barry R. Ostrager
- against - Part 61

:
SIMON 4 SCHUSTER, INC.,

Defendant.

x
___________________________________________________________________________________

MEMORANDUM OF LAW IN OPPOSITION TO


PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

Elizabeth A. McNamara

Geoffrey S. Brounell
Cyrus E. Ansari
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor

New York, New York 10020


Tel: (212) 489-8230
lizmcnamara@dwt.com
geoffreybrounell@dwt.com
cyrusansari@dwt.com

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

Los Angeles, CA 90067


Tel: (310) 712-6120
moconnor@kelleydrye.com

Attorneys for Defendant Simon 4 Schuster, Inc.

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TABLEOFCONTENTS

Page

PRELIMINARY STATEMENT .................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 3

"Crash"
A. The Parties Agreed to a Publication Schedule.......................................... 3

B. The Agreement Unambiguously Established the Publisher's Discretion

Concerning Acceptance and Termination............................................................... 4

C. Simon 4 Schuster Adhered to the Editorial Process Set Forth in Paragraph


13 in Rejecting Plaintiff's Manuscript and Terminating the Agreement................ 6

D. Procedural History.................................................................................................. 9

ARGUMENI'
ARGUMENT................................................................................................................................ 10

I. LEGAL STANDARD........................................................................................... 10

II. SIMON 4 SCHUSTER POSSESSED BROAD DISCRETION TO


TERMINATE THE AGREEMENT.....................................................................
. 11

A. Courts Interpreting Similar Contracts Have Established that


Publishers May Terminate for a Broad Array of Reasons in Their
Subjective Judgment................................................................................. 11

B. The Agreement's Termination Provisions are Consistent with


Simon 4 Schuster's Broad Discretion Under Governing Law................. 15

III. SIMON 4 SCHUSTER EXERCISED ITS BROAD DISCRETION IN


TERMINATING THE AGREEMENT PURSUANT TO
PARAGRAPH 13 ................................................................................................. 17

A. Yiannopoulos's Paragraph 13 Argument Relies on a Contradiction........ 17

B. Simon 4 Schuster Fully Complied with the Provisions of


Paragraph 13 ............................................................................................. 19

IV. SIMON 4 SCHUSTER EXERCISED ITS BROAD DISCRETION IN


TERMINATING THE AGREEMENT PURSUANT TO
PARAGRAPH 11 ................................................................................................. 23

CONCLUSION............................................................................................................................. 25

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TABLE OF AUTHORITIES

Page(s)

Cases

327 Realty v. Nextel of New York,


150 A.D.3d 581 (1st Dep't 2017)............................................................................................23

Asabor v Archdiocese of N.Y.,


102 A.D.3d 524 (1st Dep't 2013)............................................................................................10

Aubrey Equities v. SMZH-73rd,


212 A.D.2d 397 (1st Dep't 1995)............................................................................................11

Blumberg v. Florence,
143 A.D.2d 380 (2d Dep't 1988).............................................................................................23

BNYM v. WMC Mortg.,


136 A.D.3d 1 (1st Dep't 2013)..................................................................................................3

Brabec v. Delmar Thomson Learning,


2000 WL 34233872 (W.D. Wis. Dec. 20, 2000)...............................................................15, 16

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

Dell Publ'g Co. v. Whedon,


577 F. Supp. 1459 (S.D.N.Y. 1984).........................................................................................12

Doubleday 4 Co. v. Curtis,


763 F.2d 495 (2d Cir. 1985).........................................................................................12, 13, 20

Flomenbaum v NYU,
71 A.D.3d 80 (1st Dep't 2009)................................................................................................10

Genesee/Wyoming YMCA v. Bovis Lend Lease,


98 A.D.3d 1242 (4th Dep't 2012)............................................................................................10

Glick & Dolleck, Inc. v. Tri-Pac Export Corp.,


239 N.E.2d 725 (N.Y. 1968)....................................................................................................10
..

Gregory v. Simon 4 Schuster,


1994 WL 381481 (S.D.N.Y. July 19, 1994), aff'd, 60 F.3d 812 (2d Cir. 1995).............. passim

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Gulf Ins. Co. v. Fid. 4 Deposit Co. of Md.,


847 N.Y.S.2d 896 (Sup. Ct., NY County 2007)......................................................................23
.

Harcourt Brace Jovanovich v. Goldwater,


532 F. Supp. 619 (S.D.N.Y. 1982).....................................................................................12, 16

HarperCollins Pub'r v. Arnell,


2009 WL 1119517 (Sup. Ct. Apr. 15, 2009)...........................................................................12
.

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

Little, Brown 4 Co. v. Klein,


1993 WL 643380 (N.Y. Sup. Ct. Aug. 13, 1993)..............................................................15, 22

Mpeg La v. Samsung,
2016 WL 6947952 (Sup. Ct., ) NY County Nov. 23, 2016)......................................................23

Nance v. Random House,


212 F. Supp. 2d 268 (S.D.N.Y. 2002), afd, 63 F. App'x 596 (2d Cir. 2003)..................13, 20

New Colony Homes, Inc. v. Long Island Prop. Grp., LLC,


21 A.D.3d 1072 (2d Dep't 2005).............................................................................................24
.

Random House v. Gold,


464 F. Supp. 1306 (S.D.N.Y. 1979), afd, 607 F.2d 998 (2d Cir. 1979)........................
........................ passim

Schlichting v. Elliquence Realty,


116 A.D.3d 689 (2d Dep't 2014).............................................................................................10
.

Schwartz v. 271 Venture,


172 A.D.2d 226 (1st Dep't 1991) ............................................................................................10 10

Seiden v. ANC,
959 F.2d 425 (2d Cir. 1992).....................................................................................................18

Stein 4 Day v. Morgan,


1979 N.Y. Misc. LEXIS 2983 (Sup. Ct. June 5, 1979)...........................................................12

Sterling Inv'r Servs. v. 1155 Nobo Assocs.,


30 A.D.3d 579 (2d Dep't 2006)...............................................................................................19

Uddin v. City of N.Y.,


52 A.D.3d 422 (1st Dep't 2008) ..............................................................................................10 10

111
ill
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United States Fid. 4 Guar. Co. v. Annunziata,


492 N.E.2d 1206 (N.Y. 1986)..................................................................................................19

Westmoreland v. Entech,
794 N.E.2d 667 (N.Y. ..
2003)..............................................................................................15, 24

Statutes

CPLR 3212.......................................................................................................................................1 .1

CPLR 3212(f).................................................................................................................................10

Rules

Commercial Division Rule 19-a(c)................................................................................................24

iv
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("
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.

Termination of the Agreement is governed by two central provisions relevant here.

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

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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

Publisher" Agreement." 11.1


provisions are "essential to the and "of the essence of the Agmt. ¶

In the same breath, Plaintiff argues that Simon 4 Schuster violated the terms of

Paragraph 13 by terminating the Agreement without providing editorial comments or an

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

terminate in its discretion.

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

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Either Plaintiff failed to deliver a timely and satisfactory complete manuscript and Simon

Schuster's termination complied with Paragraph 11 or he delivered a complete manuscript and

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

motion founded on a disingenuous and internally inconsistent presentation of the facts.

Accordingly, this Court should promptly deny this motion.

STATEMENT OF FACTS

"Crash"
A. The Parties Agreed to a Publication Schedule.

The Agreement was negotiated, as Plaintiff acknowledges on this motion, by

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.

Accordingly, the parties proceeded on an extremely compressed timeline. Simon 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

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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

$80,000, Wilson Aff. ¶ 14; Compl. ¶¶ 50-51.

B. The Agreement Unambiguously Established the Publisher's Discretion

Concerning Acceptance and Termination.

The Agreement adhered to well-established terms concerning the acceptance and

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:

If Author fails to deliver the complete manuscript, editorially satisfactory to the


Publisher in length, content and form, within 30 days of the time specified
[December 31, 2016], the Publisher shall have the option to give the Author a
notice in writing prior to delivery of the Work terminating this Agreement[.]

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

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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

Vigliano Literary Agency


- like most well-established literary agencies - uses an established

"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

terminate the Agreement - a modification that Simon 4 Schuster explicitly rejected.

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).

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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.

Plaintiff submitted a draft manuscript on January 2, 2017. See Plaintiff's Statement of

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.

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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

insults" (' delete" ("


gratuitous insults"), 17 ("Unclear, unfunny, delete"), 20 ("This entire paragraph is just repeating

("
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.

(' ridiculous" ('


Too much ego"), 198 ("This entire argument is ridiculous"), 146 ("This entire section is the most

('
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

Simon 4 Schuster for publication. Id

Meanwhile, as spelled out in detail in the Amended Complaint, a groundswell of author

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

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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

states that "80-90% of [Ivers'] cuts have been


made,"
Pl.'s SOF ¶ 10, multiple people -

including Ivers and Reidy


- reviewed the revised manuscript and many of the previously

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).

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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

Ex. D at 20 ("Yes, I was in drug-saturated nightclubs in London, losing my virginity in

interracial fivesomes with drag queens, seducing my English teacher and parish priest and

experimenting with every depraved form of escapism I could find.").

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.

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ARGUMENT

L LEGAL STANDARD

On summary judgment, Yiannopoulos has the burden of establishing that no genuine

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

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"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.

II. SIMON & SCHUSTER POSSESSED BROAD DISCRETION TO TERMINATE


THE AGREEMENT

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

acceptable. Tellingly, Yiannopoulos's motion completely ignores this prevailing law.

A. Courts Interpreting Similar Contracts Have Established that Publishers May


Terminate for a Broad Array of Reasons in Their Subjective Judgment.

Publishing case law is well-developed in New York due to the concentration of

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

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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

agreement that conditioned publication on delivery of a manuscript "satisfactory to Publisher in

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:

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[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

permissibly terminating due to its dissatisfaction. See id.

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

uniformly affirmed a book publisher's subjective determination of acceptability. Gregory is

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.

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"complete" publisher" form."


manuscript "reasonably satisfactory the "in content and Gregory,

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

terminated by letter. Id. at 1309-11. The court found:

[N]o 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
manuscript offered for publication, and this Court declines to endorse such a
view. . . . [T]he publisher is not bound to incur the significant costs of publication
if it declines to accept the risk of financial loss.

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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).

B. The Agreement's Termination Provisions are Consistent with Simon &


Schuster's Broad Discretion Under Governing Law.

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

to determine whether Yiannopoulos delivered a satisfactory manuscript in Simon & Schuster's

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,

satisfactory to the Publisher in length, content and form, on or before

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December 31, 2016.

Paragraph 5: Publisher shall pay Author $80,000 on signing of this Agreement;


$80,000 on delivery and acceptance of the complete manuscript of the Work, as

satisfactory to the Publisher[.]

Paragraph 11: Timely delivery of the Work, editorially satisfactory to the


Publisher in length, content and form, is essential to the Publisher and is of the
essence of this Agreement. If Author fails to deliver the complete manuscript,

editorially satisfactory to the Publisher in length, content and form, within 30


days of the time specified, the Publisher shall have the option to give the Author a
notice in writing prior to delivery of the Work terminating this Agreement[.]

To remove any doubt, Paragraph 13 reiterates Simon 4 Schuster's discretion:

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.

Thus, Paragraph 13 set forth a procedure whereby, following delivery of a manuscript in

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).

6Pl appears to place great SOnhWOf as a limiting


the phrase "edhri
provision me
unacceptable" k"

that cabined the Publisher's discretion.


(arguing "extra-contractual
See Mot. at 21-22
termination"). But, nothing in
the Agreement or the law dictates such a conclusion and Plaintiff cited no authority for his position. Indeed, as the
court in Gold established, Simon 4 Schuster could take economic considerations and its perceived "inability ... to
book," factors"
sell the Mot. at 13, into consideration within the "range of of its decision. See Gold, 464 F. Supp. at
1307-09. See also Brabec, 2000 WL 34233872, at *7. As set forth above, Plaintiff's attempt to define "editorially
satisfactory" standard[]"
in such a way that it was an "objective and that a "good faith rejection[] shall not be based
considerations,"
upon economic was unequivocally rejected by Simon & Schuster, and such language does not
appear in the Agreement. See supra at 5.

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HL SIMON & SCHUSTER EXERCISED ITS BROAD DISCRETION IN


TERMINATING THE AGREEMENT PURSUANT TO PARAGRAPH 13

A. Yiannopoulos's Paragraph 13 Argument Relies on a Contradiction.

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,

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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

rested on a "patently unreasonable interpretation of the language 'final revised complete

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

equally applicable here, the court found:

'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)).

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B. Simon & Schuster Fully Complied with the Provisions of Paragraph 13.

Assuming termination occurred pursuant to Paragraph 13, based on Plaintiff's submission

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

arguments to the contrary are entirely without merit.

Simon & Schuster Provided Written Notice of Unacceptability. . Yiannopoulos cannot

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

must be compared with the Agreement's provision regarding a notice of acceptability. By

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

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"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

commonsense meaning of the English language.

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.

Plaintiff cannot have it both ways.

'
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.

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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.

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(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

form," it" it,"


and id. ¶ 11, or "not acceptable to or "not editorially acceptable to id. ¶ 13(a), (d),

"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

in fact interchangeably uses


"satisfactory," "acceptability"
or "editorial
acceptability" - or the

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

emphasizes the Publisher's subjective determination of acceptability. The Agreement provides

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

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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.

IV. SIMON & SCHUSTER EXERCISED ITS BROAD DISCRETION IN


TERMINATING THE AGREEMENT PURSUANT TO PARAGRAPH 11

If Yiannopoulos is correct that he never submitted a "complete and


final"
manuscript -

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

Schuster's termination fully complied with Paragraph 11 of the Agreement.

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,

Yiannopoulos submitted an affidavit in which he swears that neither of the manuscripts he

final"
submitted to Simon 4 Schuster was in "complete and form. See Yiannopoulos Aff. ¶ 4.

cited cases - none of which involve publishing - are all readily


9
By contrast, Plaintiff's agreements
distinguishable. In 327 Realty v. Nextel of New York, 150 A.D.3d 581, 582 (1st Dep't 2017), termination based on a
"technological" interference."
issue was defined by an example of "signal Here, Paragraph 13 permits Simon &
it" acceptable,"
Schuster to determine whether the manuscript "is not acceptable to or is "editorially but Paragraph
13 does not provide limiting examples of acceptability. Blumberg v. Florence, 143 A.D.2d 380, 381 (2d Dep't
1988), is also inapposite. There, the real estate purchase contract contained only one termination provision and did
not provide a party with discretion to terminate in its sole good faith judgment. See id Further, in the case 3(peg La
v. Samsung, 2016 WL 6947952, at *5-6 (Sup. Ct., NY County Nov. 23, 2016), the court focuses not on termination
procedure, but rather whether termination was permissible at all. here, where termination
Unlike is a subjective
determination, the court found termination was impermissible because it did not satisfy an objective date
requirement. Id Finally, in Gulf Ins. Co. v. Fid & Deposit Co. of Md, 847 N.Y.S.2d 896 (Sup. Ct., NY County
2007), another construction case, the parties expressed their intention to treat a certification and a notice period as
material conditions. The material condition in the Agreement here was that Yiannopoulos was required to timely
deliver a complete and acceptable manuscript.

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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.

Yiannopoulos's motion ignores Paragraph 11's requirement that Yiannopoulos submit a

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

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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

Agreement allows or what the parties intended.

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

deny Plaintiff's motion for summary judgment.

CONCLUSION

For the foregoing reasons, Simon & Schuster respectfully requests that the Court deny

Plaintiff's Motion for Summary Judgment in its entirety.

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Dated: New York, New York


December 21, 2017
By: s/ Elizabeth A. McNamara
Elizabeth A. McNamara

Geoffrey S. Brounell
Cyrus E. Ansari
DAVIS WRIGHT TREMAINE LLP
1251 Avenue of the Americas, 21st Floor
New York, New York 10020-1104

Tel: (212) 489-8230


lizmcnamara@dwt.com
geoffreybrounell@dwt.com
cyrusansari@dwt.com

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

Los Angeles, CA 90067


Tel: (310) 712-6120
moconnor@kelleydrye.com

Attorneys for Defendant Simon 4 Schuster, Inc.

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