46927072 – Aleksandr Smaglov

After the outspoken conservative commentator Milo Yiannopoulos sued Simon & Schuster this summer for allegedly breaching their contract to publish his autobiography Dangerous, Simon & Schuster threw the book at Yiannopoulos with a motion to dismiss.  But New York Supreme Court Judge Barry Ostrager was not convinced Yiannopoulos’ suit is ready for its final chapter.  Last week, the Court denied the motion and opened the door to discovery of evidence Yiannopoulos vows will show the publishing company breached the contract in bad faith to appease left-wing critics.

When news broke that Simon & Schuster agreed to publish Yiannopoulous’ work in December of 2016, droves of left-leaning celebrities and well-known authors decried the arrangement as promoting “hate speech” and called for a widespread boycott.  However, it was not until a podcast surfaced two months later in which Yiannopoulos purportedly condoned pedophilia that Simon & Schuster backed out, citing a clause within the contract that empowers Simon & Schuster to refuse publication of the work “if in its sole good faith the Work is not acceptable to it.”  That Yiannopoulos vociferously denied the accusation claiming his remarks were sarcastic and taken out of context is irrelevant, argued the publisher.

But what caught Ostrager’s eye was Yiannopoulos’ counterargument citing Simon & Schuster’s contractual obligation to permit Yiannopoulos to revise any manuscript the company deemed unsatisfactory and to provide specific reasons for rejection.  Yiannopoulos contends not only did Simon & Schuster fail to provide any reasons for rejection, but it also used the podcast as a pretext for terminating the contract to diffuse widespread left-wing backlash.

Regardless, the publisher reasoned Yiannopoulos should still lose because he kept his $80,000 advance and thereby triggered the defense of accord and satisfaction.  However, Ostrager held Yiannopoulos’ rebuttal that Simon & Schuster told him he had 18 months to return the funds was enough to defeat this argument at the pleading stage.

Yiannopoulos ultimately self-published Dangerous three days before filing suit, strongly suggesting, in Simon & Schuster’s words, the case is nothing more than a “publicity stunt.”  Regardless, the publishing company must answer Yiannopoulos’ verified complaint and engage in costly discovery if a settlement cannot be reached.