8:57am PT by Eriq Gardner
Milo Yiannopoulos Wins First Round in $10M Lawsuit Against Simon & Schuster
Simon & Schuster will have to put up with Milo Yiannopoulos a bit longer after the book publisher lost a motion in New York state court to dismiss his lawsuit on Thursday.
After a video clip surfaced in which Yiannopoulos appeared to defend pedophilia, Simon & Schuster looked to extricate itself from a book deal with the right-wing provocateur. The book publisher sent a letter to Yiannopoulos in February, telling him that he didn't need to return an $80,000 book advance and that it was terminating the contract. According to Simon & Schuster, when Yiannopoulos didn't respond, it represented full satisfaction and discharge of its own obligations under the publishing agreement.
In a $10 million lawsuit, he accused Simon & Schuster of breaching the deal to publish his book, Dangerous, over fear of repercussions from progressives.
Simon & Schuster called the suit a "publicity stunt" and argued that by accepting payment without contemporaneous protest, the lawsuit was barred under the legal doctrine of accord and satisfaction.
"Milo has one of the largest bullhorns in the country," said Elizabeth McNamara, the attorney representing Simon & Schuster at Thursday's hearing. "He knows how to use it. His silence speaks volumes."
The argument that inaction — i.e., waiting months to protest the book publisher's February letter — dooms his lawsuit didn't sway the judge. Especially given Yiannopoulos' own arguments that he had 18 months to return the money, and that at the motion to dismiss phase, inferences couldn't be drawn from his silence.
New York Supreme Court judge Barry Ostrager, however, was more interested in Yiannopoulos' decision to self-publish Dangerous. Was that indisputable evidence that he had accepted the termination of the book contract?
Stephen Meister, his attorney, argued otherwise, pointing to that February letter as having reverted rights independent of any alleged termination. Additionally, he told the judge that under the book contract, when a manuscript is deemed unacceptable, "We not only have a right but also an obligation to go out and find a new publisher."
That's because money from the publishing would then have to be sent to Simon & Shuster to help it recoup its advance.
Dangerous, after it was self-published, made the New York Times best-seller list. Despite doing so, however, Yiannopoulos' complaint admitted receiving just $3,000 in revenue from this.
A small sum, but according to McNamara, a legally significant one since the money was not then handed over to Simon & Schuster. "He has not paid over a penny of that $3,000," she said, essentially submitting it was further evidence that Yiannopoulos had accepted termination of the contract.
Ostrager didn't buy that the failure to remit within weeks amounted to a contract breach, so that argument failed, too.
After losing its motion to dismiss, Simon & Schuster will now have to answer the lawsuit. After the next discovery phase, it's possible that with new evidence, the publisher will revive arguments that Yiannopoulos had intent to accept termination. Or Simon & Schuster may attempt to convince the judge that it had no obligation under the contract to actually publish his book. Based on the implication of certain statements at Thursday's hearing, the coming answer could also potentially bring counterclaims against Yiannopoulos over his decision to self-publish.