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One might hate right-wing provocateur Milo Yiannopoulos and have no interest in ever reading his book Dangerous, but his lawsuit against Simon & Schuster is headed toward the kind of territory reserved for an excellent treatise on contracts. On Monday, the latest development came when Yiannopoulos filed papers seeking to save his lawsuit.
After Simon & Schuster decided not to publish Dangerous when Yiannopoulos ran into a scandal about what he said about pedophilia, Yiannopoulos sued the publisher for allegedly breaching contract.
In response, Simon & Schuster has essentially argued that Yiannopoulos had what they call in Hollywood a “pay or play” deal. The publisher argues in a dismissal motion that the book contract “unambiguously” granted it the right to terminate for “multiple and subjective reasons,” including “if in its sole good judgment the Work is not acceptable to it.”
But if there’s any quarrel there, Simon & Schuster also raised the fact that Yiannopoulos hadn’t immediately returned an $80,000 advance.
“Yiannopoulos accepted the payment without protest, thereby sealing the accord and satisfaction and barring this lawsuit as a matter of centuries-old law,” wrote attorney Elizabeth McNamara, a partner at Davis Wright Tremaine.
Simon & Schuster further argues that the failure to return the money amounted to a “compromise of the dispute,” and that a letter from Yiannopoulos’ attorney on July 11 attempting to reject the payment made six months earlier was a “belated effort to reserve his rights…without any legal significance whatsoever.”
Now, Yiannopoulos has filed a motion in opposition to the dismissal bid.
Represented by attorneys at Meister Seelig & Fein, he takes aim at the publisher’s “accord and satisfaction” arguments.
Yiannopoulos says that correspondence between his agent and Simon & Schuster merely show an accord was offered, not satisfied. He also takes issue with “accord and satisfaction,” saying the “centuries-old” doctrine emanating from old England was supplanted when New York lawmakers “set down a statute of frauds applicable to contracts containing oral proscriptions against modification.”
In other words, if Simon & Schuster wanted to modify a deal providing a $255,000 advance and royalties, it needed to get it in writing — and Yiannopoulos says the book publisher hasn’t presented such a written instrument.
But Yiannopoulos puts that aside for a moment to argue in his brief why the dismissal bid fails even under looser standards.
“While Defendant misleadingly refers to Plaintiff as having ‘accepted the payment,’ what the publisher really means is that Yiannopoulos failed to return a contractually required advance paid on the signing of the publishing agreement weeks before the dispute arose. Defendant cites no case — and Plaintiff is aware of none — standing for the remarkable proposition that an accord and satisfaction can be based on a contracting party’s post-dispute inaction — a failure to return a contractually required advance paid before any dispute arose (in contrast to the affirmative act of depositing a fresh check, the typical manner in which an accord and satisfaction takes form).”
His brief adds, “In any event, under the publishing contract, if Defendant had terminated the agreement in good faith on February 22, 2017, Plaintiff would not be required to return the pre-dispute advance for 18 months. As such, Plaintiff’s ‘failure’ to immediately return the advance only evidences his honoring of the agreement, as written, or his belief that Defendant breached, not his acceptance of the alleged accord. Defendant drones on about how Plaintiff’s ‘reservation of rights’ letter came too late. But why was Mr. Yiannopoulos obligated — on pain of losing his valuable contract rights — to reserve his rights, when what he failed to do (return the advance), he had the undisputed right not to do until August 2018? Defendant did not and cannot answer that simple question.”
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