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Demanding That A Person with Possession Produce A Will For Probate

Posted by on Aug 21, 2018 in Elder Care | Comments Off on Demanding That A Person with Possession Produce A Will For Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Attorney and Estate Probate Litigation Attorney.

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A Court Has the Statutory Authority to Order Production of a Will and to Appoint an Administrator For the Estate when the Last Will cannot be found.

You know a Will exists and someone has it. They refuse to produce it or claim they can’t find it. Something has to be done but no one is doing anything or you’re not sure what to do! Here’s your solution.

The Legislature gives the power to the Chancery Court to “compel discovery as to the existence or whereabouts of any paper purporting to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the will be filed with the surrogate of the county for probate.” N.J.S.A. §3B:3-29. In one case I read, more than one (1) year expired since the Decedent’s death, and despite the client’s repeated requests to her siblings that they produce a Last Will and Testament of the Decedent, a Will did not emerge. On her behalf I requested the Court to compel production of the Last Will and Testament of the Decedent, in the event that one exists and/or could be located.

Alternatively, I requested that my client be appointed as the Administrator of the Decedent’s Estate to serve without bond. The estate had languished with no marshaling of the assets, presumably no filing of any necessary tax returns, and no distribution of assets was made to the heirs, for over a year. Therefore, I claimed that the Court had the power to appoint “any fit person applying therefor” as administrator of the estate if the heirs of the intestate do “not claim the administration within 40 days after the death of the intestate.” N.J.S.A §3B:10-2. “The right to administration is personal in the next of kin, and if they fail to apply for or waive it in favor of someone else, it is for the court to appoint, in its discretion, such proper person as will accept it.”

I was successful in this case in having a neutral administrator appointed to probate and finalize the Estate since the children of the Decedent were unable to come to a consensus as to whom should serve as administrator.

To discuss your NJ Estate and Probate matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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Time for the legal industry to speak out for the rule of law

Posted by on Aug 21, 2018 in Elder Care | Comments Off on Time for the legal industry to speak out for the rule of law

The rule of law is under siege and it’s incoming on all sides.

The judiciary, the Department of Justice, the intelligence community, and the State Department have all been rebuked repeatedly, undermining their legal and moral authorities. Our electoral process has been compromised and efforts to investigate the culprits, circumstances, and motives of the perpetrators have been resisted even as the intelligence community is in unanimous agreement that all signs point to Russian interference.

That’s not to mention attacks on the special prosecutor charged with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as “any matters that arose or may arise directly from the investigation.”

If alarm bells are not going off by now, you probably skipped sixth-grade civics class or spent too much time in a banana republic.

In recent days, John Brennan, the former director of the CIA and an outspoken critic of the administration, had his security clearance revoked. This caused 13 former U.S. spy chiefs who served Democratic and Republican administrations to sign a joint letter supporting Brennan and, implicitly, the right to free speech, freedom from politicizing intelligence activities, and the integrity of their professional colleagues. Journalists, in the crosshairs of executive rebuke and repeatedly labeled “the enemy of the people,” are also joining hands in opposition. The Boston Globe and more than 300 newspapers with diverse political bents published editorials declaring “journalists are not the enemy.” Are you hearing the alarm bells from sources not prone to panic?

It’s time for the legal profession to voice its concerted opposition to the escalating assault on the rule of law. There are approximately 1.2 million licensed attorneys in the U.S. As the rule of law’s early responders and ultimate guardians, lawyers and other legal professionals have standing and a professional obligation to speak out with similar conviction, clarity, and unanimity as journalists and intelligence leaders in support of the Constitution. Doing so would not be a political statement, although everything these days seems to be politicized—or cast that way. It’s about the defense of the rule of law–the stitching that binds our democracy.

The foregoing call to arms is not to imply that lawyers have sat on their hands as the siege has intensified. Many, including ABA immediate past-president Hilarie Bass, have spoken out, and every day legal professionals around the country—and the globe—provide valuable services that reinforce adherence to the rule of law. But more must be done during these unusual and perilous times. If legal professionals are not swayed by higher angels to act, they should consider that failure to do so might ultimately result in most of them being out of business. There’s not a surfeit of lawyers in autocratic regimes.

The legal profession has regrettably allowed many in our society to conclude that they are already disenfranchised from the legal system and/or rendered unequal treatment by it. Consider that approximately 80 percent of Americans and two-thirds of all businesses cannot afford legal representation even when the need is acute. Absence of meaningful access to legal services (commonly called “the access to justice crisis”) is a cancer that metastasizes when-as now-the public is encouraged to believe that “the system is rigged.” The same goes for sentencing disparity and other statistical evidence of unequal treatment based on color and ethnicity. Those inequities are exacerbated by social media, a lethal vehicle for dissemination of false information, vitriol, and dangerous stereotyping. The legal system certainly has its flaws, but it’s a different story altogether when those in high office sow doubts about its legitimacy. Consider that in late-May a Monmouth University poll found that 43 percent of Americans think the Mueller probe should end.

It’s precisely for that reason that then-ABA President Charles S. Rhyne in 1957 envisioned a national day to recognize the nation’s commitment to the rule of law, and why President Dwight Eisenhower declared the first national Law Day in 1958, noting “the clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law.”

Legal professionals are busy people. The stresses of their everyday lives are intense and amplified by the rapid change the long staid legal marketplace is witnessing. Many in the industry—especially recent entrants confronted with daunting education debt—are trying to stay afloat. Others are attempting to read the tea leaves where the industry is headed and how to prepare themselves. Pundits reflect upon the diminishing life expectancy of the billable hour, the incursion of the so-called Big Four accounting firms, and the impact of artificial intelligence on legal delivery. Worthy concerns, all. But they are a footnote to the ebbing strength of the rule of law. That’s why the legal industry must voice its commitment to protect and defend it.

The American Bar Association, trial lawyers, the legal academy, corporate counsel, law students, law firms, law companies, legal operations professionals, the legal tech community, and all that have a place in the legal industry’s increasingly large, diverse umbrella must answer democracy’s cry for help. Coming of age during the Vietnam/Watergate era, Crosby, Stills & Nash’s lyrics to “Long Time Gone” echo in my ears:

“Speak out, you got to speak out against the madness/You got to speak your mind, if you dare”

We can no longer sit on our collective hands and must join them in opposition to this unprecedented assault on the rule of law. To put things in legal-speak: Silence will result in irreparable harm and no adequate remedy at law will be available. Govern Yourself Accordingly.


Mark Cohen, a global thought leader in the legal industry, is CEO of Legal Mosaic, a legal business consultancy. His LegalMosaic blog was honored in 2017 by the ABA Journal as one of the 50 outstanding worldwide legal blogs in their inaugural Web 100. Mark is also a distinguished fellow at Northwestern University Pritzker School of Law; a regular contributor to Forbes; an ALM Legal Intelligence fellow; the inaugural Singapore Academy of Law LIFTED Catalyst-in-Residence; and a sought-after keynote speaker.

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Suspended Prenda lawyer pleads guilty in scheme to sue porn downloaders

Posted by on Aug 21, 2018 in Elder Care | Comments Off on Suspended Prenda lawyer pleads guilty in scheme to sue porn downloaders

Criminal Justice

Den Rise/Shutterstock.com.

A former lawyer for Prenda Law has pleaded guilty in a scheme to upload pornography to file sharing websites and then threaten to sue people who downloaded the material for copyright violations.

Minnesota lawyer Paul Hansmeier, 37, pleaded guilty on Friday to conspiracy charges of mail fraud, wire fraud and money laundering, report the Minneapolis Star Tribune, the American Lawyer and St. Paul Pioneer Press. A press release is here.

The fraudulent copyright lawsuits allegedly netted more $3 million for Hansmeier and a co-defendant, John Steele, according to the plea agreement. Steele pleaded guilty in March 2017 to federal conspiracy charges of money laundering, mail fraud and wire fraud.

Hansmeier admitted that he and Steele created sham companies to obtain the copyrights to pornographic movies, including some they filmed. The lawyers uploaded the movies to file-sharing websites like Pirate Bay, then filed copyright lawsuits for illegal downloading that concealed the lawyers’ role in distributing the movies, and their personal stake in the outcome of the litigation, according to prosecutors.

The suits were filed against “John Doe” downloaders. When a downloader’s identity was revealed in discovery, the lawyers threatened legal action unless the downloader paid a settlement of about $3,000. The lawyers created a company called Under the Bridge Consulting to transfer to themselves $1 million in money gained by the scheme, the plea agreement says.

The guilty plea can be withdrawn if Hansmeier wins an appeal that contends a district court should have dismissed the case.

Hansmeier was indefinitely suspended from law practice in September 2016 in connection with his conduct in the downloading cases. A federal appeals court had upheld an $81,000 sanction for abusive litigation against Hansmeier, Steele and a third lawyer in June 2016. The judge had found the lawyers were part of a “national trolling scheme.” The third lawyer, Paul Duffy, is no longer alive.


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Former BigLaw partner gets prison sentence for work on behalf of Martin Shkreli

Posted by on Aug 21, 2018 in Elder Care | Comments Off on Former BigLaw partner gets prison sentence for work on behalf of Martin Shkreli

Sentencing/Post Conviction

Brian A. Jackson/Shutterstock.com.

A former income partner at Katten Muchin Rosenman was sentenced to 18 months in prison on Friday for conspiracy to commit wire and securities fraud in connection with his representation of jailed drug company CEO Martin Shkreli.

U.S. District Judge Kiyo Matsumoto also required Evan Greebel to pay nearly $10.5 million in restitution to the pharmaceutical company Retrophin, report Courthouse News Service, the Wall Street Journal, the New York Law Journal and Bloomberg News. A press release is here.

Prosecutors had accused Greebel of helping Shkreli pay off investors who lost money in his hedge funds with assets from Retrophin, the company for which Greebel served as outside counsel. Retrophin went public in 2012; the conspiracy took place between 2011 and 2014. Prosecutors say Greebel also conspired to control the price and trading of Retrophin shares.

Greebel was convicted in December. Shkreli, Retrophin’s CEO, was convicted of securities fraud last August and was sentenced to seven years in prison in March.

Matsumoto rejected prosecutors’ recommendation for a five-year sentence, while also rejecting Greebel’s lawyers’ request for no prison time.

Greebel’s lawyers had stressed his devotion to his children. According to Courthouse News, his wife, Jodi Greebel, “collapsed, doubled over in the gallery” as Masumoto announced the sentence.

Greebel told the court that he dreads the day that his children will search for his name on the internet, according to coverage by Courthouse News.

“I will regret every day of my life the day I met Martin Shkreli,” he said.


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Ex-city council member arrested in slaying of Indiana lawyer, says it was ‘spur-of-the-moment thing’

Posted by on Aug 21, 2018 in Elder Care | Comments Off on Ex-city council member arrested in slaying of Indiana lawyer, says it was ‘spur-of-the-moment thing’

Criminal Justice

Dan Henson/Shutterstock.com.

An 83-year-old former city council member in Cedar Lake, Indiana, told investigators he shot and killed the prominent lawyer who handled his taxes as a “spur-of-the-moment thing,” according to court records in the case.

William Landske was charged Friday with murder in the shooting death of Edward “Ted” Page, of Hobart, Indiana, a part-time magistrate and public defender who also taught courses at the National Judicial College in Reno, Nevada. NWITimes.com and the Post-Tribune have stories.

Page, 64, had been trying to place Landske in adult protective services because of fears a family member was trying to take advantage of him, according to one of Page’s daughters. Landske told police after the shooting that he was “losing his marbles slowly,” the article reports, citing court records.

Landske had gone to Page’s home to retrieve tax documents Page had prepared over the years for Landske and his late wife, Sue, a former state senator. Landske asked Page if they could talk, put his arm around Page, and then fired his gun into Page’s stomach, according to police. Page was shot four times.

Lt. James Gonzales of the Hobart Police Department announced the charges and described the alleged crime in a news conference on Friday.

Landske’s daughters had started carrying documents to their cars when the gun fired. Page’s husband, Kevin Swanson, pushed Landske, knocking the gun out of Landske’s hand, Gonzales said.

Landske told investigators he was upset because Page was taking too long to prepare the tax documents, according to Gonzales. Landske told investigators that, when he saw the bags of tax documents, “that’s when I went over the deep end.” But there was no indication that tax officials were trying to seize property because of a tax issue, Gonzales said.

Court records indicate that Landske told police, “I don’t know if I intended to kill him, but what else happens when you shoot somebody?”

Landske told investigators he always carried a gun. Gonzales said that was a bad idea. “I don’t believe that he should have lawfully owned a firearm,” Gonzales said, basing his assessment on his own interview with Landske.

But Gonzales said he didn’t think Landske was suffering from dementia. Landske said he knew right from wrong, though he didn’t know the day of the week, Gonzales said.

Landske’s lawyer, Larry Rogers, told NWI.com that “this is completely out of character” for Landske. “Something has happened, something is drastically wrong and we need to get to the bottom of it,” he said.


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Michael Cohen reportedly being investigated over more than $20M in loans to his taxi business

Posted by on Aug 21, 2018 in Elder Care | Comments Off on Michael Cohen reportedly being investigated over more than $20M in loans to his taxi business

Criminal Justice

Michael Cohen/IowaPolitics.com via Wikimedia Commons.

Federal prosecutors in Manhattan are considering filing criminal charges by the end of August against Michael Cohen, the former personal lawyer to President Donald Trump.

Investigators are reportedly examining whether Cohen obtained more than $20 million in loans in December 2014 for his taxi business by misrepresenting the value of his assets, the New York Times reports. There is no indication that Cohen missed payments to the lenders, said to be Sterling National Bank and Melrose Credit Union.

Investigators are also scrutinizing Cohen’s taxi income, according to the report. So-called taxi king Evgeny Freidman, a disbarred lawyer, had worked with Cohen and is reportedly cooperating in the investigation. Cohen’s accountant has also testified before the grand jury.

According to a past report by the Wall Street Journal, Freidman managed Cohen’s taxi medallions. Freidman reportedly paid Cohen a fixed fee, enabling Freidman to keep income above that amount and forcing him to take a loss when the income dropped. Freidman sometimes paid Cohen in cash, according to an anonymous source who spoke with the Journal.

The new story by the Times says investigators are reportedly focusing on what Cohen did with the monthly payments and whether he reported the money to the Internal Revenue Service.

Also part of the probe are whether hush money payments to women who claimed affairs with Trump violated campaign finance or other laws, according to the Times.

Cohen’s lawyer has released a secret recording by Cohen in which he and Trump discussed a payment to former Playboy model Karen McDougal made by the publisher of the National Enquirer. Cohen reportedly paid adult films star Stormy Daniels $130,000, though he was later reimbursed.

Corporations are banned from spending money to influence campaigns in coordination with candidates, and prosecutors want to know whether there was a conspiracy to make an illegal campaign contribution, the Times says. Also, the limit on campaign donations by an individual to a federal candidate is $5,400 per election cycle.

“At this late stage of the inquiry,” the Times reports, “it is still possible that Mr. Cohen may plead guilty rather than face an indictment. He has hinted publicly and has stated explicitly in private that he is eager to tell prosecutors what he knows in exchange for leniency.”


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Can You Probate The Estate Of A Non-Resident In New Jersey?

Posted by on Aug 18, 2018 in Elder Care | Comments Off on Can You Probate The Estate Of A Non-Resident In New Jersey?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Probate Estate Administration Attorney

The answer to the question raised in the title of this blog, is yes.

An Estate representative can apply for probate on behalf of a person who lived in New Jersey at the time of his/her death provided there is “real or personal property located within the state” and further provided there are no proceedings pending in the state or country of the decedent’s domicile/residence.

If the individual in question had no intention of returning to his home located out-of-state and he/she had at least some personal property within New Jersey, then so long as no one is applying for probate in their state of domicile the application for probate in New Jersey should be granted.

Jurisdiction to allow probate is not based on being a New Jersey domicile at death it is based on having some personal or real property within New Jersey.  If all beneficiaries are of one mind (no one masterminding for probate out of state), an Executor can validly claim there is “some” personal property within New Jersey.

According to the revision history of the New Jersey Probate Statute, a change was made to the New Jersey Rules of Court in 1996.  The old rule, R:82 et seq. required that a non-resident Last Will and Testament be submitted for probate in their home state of domicile before it could be submitted in New Jersey for ancillary probate purposes.  This, however, is no longer the rule and can be a big benefit to avoid costly and complicated probate in some states, especially New York.

To discuss your NJ Probate Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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Judge says narrow drafting dooms bid by Trump campaign to arbitrate bias suit

Posted by on Aug 18, 2018 in Elder Care | Comments Off on Judge says narrow drafting dooms bid by Trump campaign to arbitrate bias suit

Contracts

nondisclosure agreement

Casper1774 Studio / Shutterstock.com

A narrowly drafted arbitration clause in a confidentiality agreement doesn’t require arbitration of a bias suit filed by a former Trump campaign staffer, according to a New York judge.

Judge Arlene Bluth of the trial-level Supreme Court of New York ruled there is no need to send the case to an arbitrator because the “narrow arbitration clause” does not apply to employment disputes. “It isn’t even a close question,” Bluth wrote.

Yahoo News covered the Aug. 7 decision, which was posted Thursday in a tweet by the plaintiff, Jessica Denson. According to Yahoo, the ruling suggests there could be drafting weaknesses in nondisclosure agreements signed by other staff members of the campaign, the Trump Organization and the White House, including Omarosa Manigault Newman.

Denson claims in her pro se lawsuit that she was harassed by her supervisor and other campaign staffers after she received a promotion to work on Hispanic outreach. The Trump campaign told the court that employment-related disputes were subject to arbitration. Denson countered that the agreement to arbitrate in her nondisclosure agreement was not part of any employment agreement.

Bluth agreed with Denson.

As an initial matter, the court observes that the arbitration clause confines arbitration to ‘any dispute arising under or relating to this agreement,’ ” Bluth wrote. “It does not require arbitration for any ‘dispute between the parties’ or even ‘any dispute arising out of plaintiff’s employment.’ ”

Bluth said the nondisclosure agreement only lists five prohibited acts, including bans on disclosure of confidential information and disparagement. The agreement says nothing about terms of employment, and it is simply titled “agreement,” not “employment agreement,” Bluth said.

“There is simply no way to construe this arbitration clause in this agreement to prevent plaintiff from pursuing harassment claims in court,” Bluth wrote. “The arbitration clause could have been written to require any disputes arising out of plaintiff’s employment to go to arbitration or that any claims brought by plaintiff against defendant must be sent to arbitration. But it did not.”

According to Yahoo, the controlling precedent is ironically a 1993 case in which Donald Trump fought arbitration of a dispute among the owners of a hotel.

Denson has filed a separate suit in federal court that seeks to void the nondisclosure agreement.


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Bill proposes greater accountability for New York prosecutors who break the law

Posted by on Aug 18, 2018 in Elder Care | Comments Off on Bill proposes greater accountability for New York prosecutors who break the law

Prosecutors

Andrew Cuomo

New York Gov. Andrew Cuomo. a katz / Shutterstock.com

In 2013, ProPublica published a series of reports finding that New York prosecutors are almost never punished for misconduct that can land innocent people in prison or let the guilty go free.

That could change in the coming days.

Gov. Andrew Cuomo of New York has a bill before him that would create a commission to bring a greater measure of accountability to prosecutors who withhold evidence, suborn perjury or commit other ethical violations that undermine justice. It would be the first of its kind in the country and conceivably create a model for other states to follow.

The bill, passed overwhelmingly by the Senate and Assembly in June, authorizes the governor, the Legislature and the state’s chief judge to pick 11 people to investigate allegations of misconduct. The panel, when it sees fit, could issue warnings and recommend sanctions, or even firings, to the governor.

Now, prosecutors are overseen like any other lawyer — by disciplinary committees attached to the state’s appellate courts. But ProPublica’s 2013 analysis found that even when convictions are thrown out as a result of harmful misconduct on the part of prosecutors, the appellate courts often fail to refer them to disciplinary committees.

In the two dozen instances in which judges explicitly concluded that New York City prosecutors had committed misconduct, only one prosecutor was disciplined. That prosecutor flouted the law in three separate cases. Other prosecutors went on to earn promotions and get raises.

Meanwhile, New York City and state taxpayers have had to dole out tens of millions of dollars in settlements for wrongfully convicted people who went on to successfully sue.

The bill’s backers say that the commission will help remedy the situation both by punishing prosecutors who deserve it and forcing them to reconsider tactics that lead to such harm.

But the bill has met staunch opposition from the district attorneys themselves who wield significant power in Albany.

In a statement, the District Attorneys Association of the State of New York said that existing systems should be strengthened, and that the commission will have unchecked, duplicative powers that will interfere with a prosecutor’s ability to fully enforce the law.

Cuomo has until Monday to veto or approve the bill.

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for their newsletter.



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Trump Organization accuses Omarosa’s book publisher of tortious interference with hush agreement

Posted by on Aug 18, 2018 in Elder Care | Comments Off on Trump Organization accuses Omarosa’s book publisher of tortious interference with hush agreement

Contracts

Unhinged

Simon & Schuster

Lawyers for the Trump Organization have dispatched a letter to the publisher of Omarosa Manigault Newman’s tell-all book, Unhinged: An Insider Account of the Trump White House.

The letter claims publication of the book amounts to tortious interference with Manigault Newman’s nondisclosure agreement with the Trump Organization, according to the Hollywood Reporter, which obtained a copy. California libel lawyer Charles Harder, who represented Hulk Hogan in his successful privacy lawsuit against Gawker, signed the Aug. 13 letter to Simon & Schuster. The book was released the next day.

According to the letter, Manigault Newman’s contract bars disclosure of confidential information that is detrimental to the Trump Organization, Donald Trump and any Trump family member.

The letter defines confidential information as information “of a private, proprietary or confidential nature or that Mr. Trump insists remain private or confidential,” including information about “the personal life, political affairs, and/or business affairs of Mr. Trump or of any family member.”

The agreement also bars Manigault Newman from demeaning or disparaging the company, Trump and Trump’s family members, according to the letter.

The letter advises Simon & Schuster that the Trump Organization will have claims against the publisher if it publishes the book, including claims for tortious interference with the confidentiality agreement and inducement of Manigault Newman to breach the agreement.

A lawyer for Simon & Schuster, Elizabeth McNamara at Davis Wright Tremaine, responded to Harder in a letter also obtained by the Hollywood Reporter. “My clients will not be intimidated by hollow legal threats,” she wrote.

McNamara said the purpose of the book is to inform the public. Private contracts like the nondisclosure agreement can’t be used to censor former or current government officials from speaking about nonclassified information learned in the course of their employment, McNamara wrote.

She notes that Harder’s letter also sought the preservation of evidence, and said the Trump campaign has its own obligation to preserve documents relating to any matters reported in the book. The letter raises the prospect of discovery of White House documents.

If there is litigation, McNamara writes, documents possessed by Trump, his family members, his businesses, the campaign and his administration “will prove particularly relevant to the defense.”

Harder also tried to stop the release of the book Fire and Fury: Inside the White House. Harder had claimed the book included false statements that give rise to claims for defamation and false light invasion of privacy.

Harder’s letter to the Fire and Fury publisher also cites an agreement with the Trump campaign that was signed by Steve Bannon, one of the book’s sources. The letter said the agreement bars disclosure of confidential information and disparagement about Trump, his family members, their businesses and the campaign.

The letter also said Bannon’s agreement with the campaign bars “communicating with any members of the print or electronic media about Mr. Trump, or any of his family members, or any of their businesses, or the campaign.”


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