by Paul Alan Levy
The New York state trial judge who initially granted a temporary restraining order against both Mary Trump and Simon & Schuster declined late today to extend that order into a preliminary injunction. Faced with a welter of arguments put forward by both the defendants in the case as well as by the Reporters Committee for Freedom of the Press and by Public Citizen as amici curiae, Justice Greenwald appears to have accepted almost all of the reasons argued on the defense side of the case in denying the injunction.
At several points in the opinion, he rules that the non-disclosure clause in the agreement settling the family will contest is far narrower than plaintiff Robert Trump had argued; while at other points he appears to say that, if the clause is as broad as Robert Trump had contended, it would be too broad to be enforced consistent with sound public policy. We filed our amicus brief because NDA’s have been getting more and more out of control; short of a legislative solution, judicial skepticism toward broad nondisclosure agreements, and the refusal of equity courts to issue injunctions simply because the NDA contains language endorsing injunctive relief as a remedy, provides welcome support for free speech as well as, we may hope, discouraging parties who hope to use such contracts them to keep the truth about their misconduct forever suppressed.
Following a line of analysis suggested in Public Citizen’s amicus brief, he appears to have ruled largely on state-law grounds, including the meaning of the contract and a strict requirement that plaintiff meet all three elements of the test for a preliminary injunction (likelihood of success on the merits, irreparable injury to the plaintiff, and a balance of the equities factoring plaintiff), but with a careful eye on the First Amendment concerns that gave good reason to deny relief on state-law grounds to avoid raising serious First Amendment questions. Indeed, the judge expressly ruled that Robert Trump has not satisfied even one of those three requirements. Again citing one of our arguments, the justice noted that the fact the Robert Trump was the only family member who decided to be a plaintiff meant that possible harms to Donald Trump from his niece’s book could not support a preliminary injunction
The clearest ruling in the decision was in favor of defendant Simon & Schuster, which the court said simply could not be treated as a proper subject for relief on the contract because publishing a book does not make a company the agent of the speaker. But based on the reasoning of this opinion, Robert Trump and his brother Donald Trump should have every reason to worry about whether any claim for damages would succeed against Mary Trump.
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NDAs are particularly harmful to the public in medical malpractice case settlements. NDAs in malpractice settlements prevent the public from learning of dangerous physicians. Analysis of the National Practitioner Data Bank’s public use data file shows that only about 1.8% of physicians were responsible for half of all the money paid out for malpractice claims over the past 30 years, and most of the physicians in this 1.8% have multiple malpractice payments in their records. But because of NDAs, malpractice victims usually can’t publicly identify these physicians and perhaps save other patients from malpractice. It should be seen as unethical for attorneys to participate in placing NDA’s in malpractice settlements because of the foreseeable harm they are likely to cause to other patients.
The National Practitioner Data Bank is prohibited by law from releasing names of physicians with dangerous malpractice records, too — a law which should be changed.