Simon & Schuster is moving quickly to close the book on a $10 million lawsuit brought by provocateur Milo Yiannopoulos. In a motion to dismiss filed Friday, the book publisher argues that it had an absolute contractual right to not publish Yiannopoulos‘ work, and that when he didn’t immediately return an $80,000 advance, it represented a “full satisfaction and discharge of Simon & Schuster’s obligation under the [Publishing] Agreement.”
It’s also suggested that Yiannopoulos filed his suit as a “meritless publicity stunt.”
The book publisher decided not to publish Dangerous after a video clip surfaced in which Yiannopoulos appeared to defend pedophilia by saying that sexual relationships between a teenage boy and an adult could be “perfectly consensual.” He later said he had misspoken and was attempting to make light of abuse that he had personally suffered.
Yiannopoulos, a former editor at Breitbart, claimed in his lawsuit that Simon & Schuster was to pay him a $255,000 advance and royalties but backed out of the agreement over fear of repercussions from progressives threatening to boycott the CBS-owned company.
To handle the lawsuit, Simon & Schuster has turned to Elizabeth McNamara, a partner at Davis Wright Tremaine who notably represented Rolling Stone in defamation cases arising from a retracted story on campus rape.
In motion papers, McNamara discusses how on Feb. 22, the publisher terminated its agreement by sending Yiannopoulos a letter allowing him to retain 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,” she writes. “That should have been the end of this contractual matter. Instead, Yiannopoulos waited approximately five months to file this lawsuit, in a naked attempt to drum up publicity for the publication of his book, released days earlier, amidst baseless public statements that Defendant attempted to censor and silence him. Then, incredibly, on July 11, 2017 — after the filing of this lawsuit and service of the Summons and Complaint — Yiannopoulos’s counsel sent a letter to a Simon & Schuster employee, purporting to ‘reject’ the $80,000.00 payment that Yiannopoulos accepted months earlier to resolve the dispute over the termination of the agreement. As a matter of black-letter law, however, the reservation of rights necessary to defeat an accord and satisfaction must precede or accompany the acceptance of a compromised payment. Yiannopoulos’s belated effort to reserve his rights is therefore without any legal significance whatsoever and certainly does not save this lawsuit from immediate dismissal.”
Simon & Schuster also points to the language of the contract. (See the key provision here.)
The publisher argues it was “unambiguously” granted the right to terminate for “multiple and subjective reasons,” including what appears in the contract — “if in its sole good judgment the Work is not acceptable to it.”
It’s acknowledged that the author is afforded an opportunity to revise the manuscript to make it acceptable, and that could lead to arguments about whether Yiannopoulos was given proper notice and the ability to cure. But for now, Simon & Schuster points to how the contract adds that “[n]o request for revisions shall be deemed to obligate Publisher to accept the final revision or constitute a conditional acceptance thereof.”
The contract continues by talking about return of advance payments upon termination, and Simon & Schuster asserts that the failure to more immediately return the $80,000 amounted to a “compromise of the dispute.”
Yiannopoulos shrugged off the attempt by Simon & Schuster’s lawyers to dismiss the lawsuit.
“You can’t fault the lawyers for being assigned another loser,” he told The Hollywood Reporter. “Having been picked to defend a stinker in Rolling Stone, they have once again been chosen by a client similiarly doomed to failure … I’ve hired Jeffey Weingart and Stephen Meister. Stephen has represented Daddy himself — that’s my pet name for the president, in case you didn’t know — and we all know daddy picks winners.”