Motion to Enforce Settlement Agreement

These papers were originally filed under seal, but plaintiff, in derogation of its confidentiality commitment, filed its opposition without a request to seal and made its papers public. Defendants, which had already been advised by the court that absent a showing by a date certain the seal would be automatically removed, subsequently filed a request with the court that the papers no longer be deemed confidential.

From the preliminary statement:

“Defendants SarahPAC and Sarah Palin submit this Memorandum of Law in support of their motion to enforce the settlement agreement agreed upon among the parties and reduced to a final writing on February 9, 2015 (the “Agreement”). Extensively negotiated and fair on its terms, the Agreement should have put a swift end to “copyright trolling” litigation. But Plaintiff North Jersey Media Group, Inc. (“Plaintiff”) decided, after all the terms had been settled and memorialized, that it wanted out of the deal. Thus, after months of negotiations, plaintiff unilaterally imposed an irrationally short, drop-dead deadline by which defendants were “required” to return the signed memorialization of the Agreement provided by plaintiff’s counsel’ office – which, in fact, contained an error.

“When plaintiff’s “deadline,” a “term” which was never negotiated or agreed to, was not met, and defendants requested that the error (which was typographical, but material) be corrected, plaintiff refused, and unilaterally declared the Agreement null and void. At a subsequent mediation session ordered by the Court before a United States Magistrate Judge, plaintiff enunciated no harm suffered by it as a result of this missed “deadline” – merely that because another judge in another circuit in another case involving other facts denied summary judgment to another defendant, this plaintiff was now entitled to vitiate its own settlement agreement in this case and demand several times the amount it agreed to accept. This motion to enforce the original agreement followed.A settlement agreement, however, is a contract, and, as

set forth below, the parties had in every respect entered into a contract to settle this matter. For the reasons set forth herein, this Court should not countenance plaintiff’s tactics nor its sharp practice, and should grant defendants’ motion to enforce the Agreement that was memorialized on February 9, 2015.”

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MEMORANDUM OF LAW IN SUPPORT OF MOTION BY DEFENDANTS
SARAHPAC AND SARAH PALIN TO ENFORCE THE SETTLEMENT
AGREEMENT OF FEBRUARY 9, 2015

Ronald D. Coleman (RC 3875)
Brian Farkas (BF 3418)
GOETZ FITZPATRICK LLP
One Penn Plaza – Suite 3100
New York, NY 10119
(212) 695-8100
rcoleman@goetzfitz.com
bfarkas@goetzfitz.com
Attorneys for Defendants
SarahPAC and
Sarah Palin

Of Counsel:
John J. Tiemessen (Pro Hac Vice)
CLAPP PETERSON TIEMESSEN THORSNESS
AND JOHNSON LLC
411 Fourth Avenue – Suite 300
Fairbanks, Alaska 99701

NORTH JERSEY MEDIA GROUP INC.,

Plaintiff,

v.

SARAHPAC, SARAH PALIN and JOHN
DOE NOS. 1-5,

Defendants.

2:14-cv-00553-CCC-MF

i
TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ……………………………………………………………………………………………. ii
PRELIMINARY STATEMENT ………………………………………………………………………………………..1
FACTUAL BACKGROUND …………………………………………………………………………………………….2
LEGAL ARGUMENT ………………………………………………………………………………………………………7
I. THE SETTLEMENT AGREEMENT IS A BINDING CONTRACT
AND SHOULD BE IS ENFORCED …………………………………………………………………….7
CONCLUSION ………………………………………………………………………………………………………………..9

ii
TABLE OF AUTHORITIES
Page(s)
Cases
American Eagle Outfitters v. Lyle & Scott Ltd.,
584 F.3d 575 (3rd Cir. 2009) ………………………………………………………………………………………..7
Bistricer v. Bistricer,
555 A.2d 45 (N.J. Super. Ct. Ch. Div.1987) ……………………………………………………………………7
Borough of Haledon v. Borough of North Haledon,
817 A.2d 965 (N.J. Super. Ct. App. Div. 2003)……………………………………………………………….6
Campbell v. Adkisson, Sherbert & Associates,
546 Fed. Appx. 146 (4th Cir. 2013) ……………………………………………………………………………….7
Elustra v. Mineo,
595 F.3d 699 (7th Cir. 2010) ………………………………………………………………………………………..7
Excelsior Ins. Co. v. Pennsbury Pain Center,
975 F.Supp. 342 (D.N.J. 1996) ……………………………………………………………………………………. 7
Green v. John H. Lewis & Co.,
436 F.2d 389 (3rd Cir. 1970) ………………………………………………………………………………………. 7
Nolan v. Lee Ho,
120 N.J. 465 (1990) …………………………………………………………………………………………………….8
North Jersey Media Grp. Inc. v. Pirro and Fox News Network, LLC,
No. 13 Civ. 7153 …………………………………………………………………………………………………………6
Zuccarelli v. Dep’t of Envir. Prot.,
741 A.2d 599 (N.J. Super. Ct. App. Div. 1999)……………………………………………………………….8

1
PRELIMINARY STATEMENT
Defendants SarahPAC and Sarah Palin submit this Memorandum of Law in support of
their motion to enforce the settlement agreement agreed upon among the parties and reduced to a
final writing on February 9, 2015 (the “Agreement”). Extensively negotiated and fair on its
terms, the Agreement should have put a swift end to “copyright trolling” litigation. But Plaintiff
North Jersey Media Group, Inc. (“Plaintiff”) decided, after all the terms had been settled and
memorialized, that it wanted out of the deal. Thus, after months of negotiations, plaintiff
unilaterally imposed an irrationally short, drop-dead deadline by which defendants were
“required” to return the signed memorialization of the Agreement provided by plaintiff’s
counsel’ office – which, in fact, contained an error.
When plaintiff’s “deadline,” a “term” which was never negotiated or agreed to, was not
met, and defendants requested that the error (which was typographical, but material) be
corrected, plaintiff refused, and unilaterally declared the Agreement null and void. At a
subsequent mediation session ordered by the Court before a United States Magistrate Judge,
plaintiff enunciated no harm suffered by it as a result of this missed “deadline” – merely that
because another judge in another Circuit in another case involving other facts denied summary
judgment to another defendant, this plaintiff was now entitled to vitiate its own settlement
agreement in this case and demand several times the amount it agreed to accept. This motion to
enforce the original agreement followed.A settlement agreement, however, is a contract, and, as
set forth below, the parties had in every respect entered into a contract to settle this matter. For
the reasons set forth herein, this Court should not countenance plaintiff’s tactics nor its sharp
practice, and should grant defendants’ motion to enforce the Agreement that was memorialized
on February 9, 2015.

2
FACTUAL BACKGROUND
As this Court is aware, this case concerns plaintiff’s allegations of copyright and
trademark infringement arising from defendants’ use of the iconic photograph depicting three
New York City firefighters raising the American flag over the debris of the World Trade Center
following the terrorist attacks of September 11, 2001. Defendants are alleged to have posted, for
an interval lasting approximately one day, a thumbnail version of a cropped portion of this image
as part of a Facebook post commemorating the anniversary of the September 11th attacks.
Plaintiff North Jersey Media Group, Inc., which owns the copyright in the photo, sued
defendants for this alleged action.
Plaintiff exerted considerable effort to file its claims for copyright and trademark
infringement mere hours after transmitting its cease and desist letter but before, as a practical
matter, that letter could have the effect of being conveyed to a decision-maker in sufficient time
for the photo to be removed before the “received” stamp could be placed by the clerk on Pearl
Street. The purpose of this cynical tack, of course, was to enable plaintiff to make the literally
true allegation that, at the precise moment its complaint was filed, the 9/11 photo was “still”
being used as a thumbnail on Facebook even though plaintiff had communicated a takedown
demand. It is undisputed that this demand was complied with essentially with almost
immediately. But by the conceit of plaintiff’s little game, its “beat the clock” routine was to be
understood as adding settlement “leverage” – somehow establishing “willfulness” on the part of
the whipsawed defendants and thereby invoking the threat of attorneys’ fees and statutory
damages.
Plaintiff’s trolling operation has, in fact, premised entirely on a series of tactical devices,
born as it presumably was in a room full of interns scouring the Internet for unauthorized
violations of the golden goose – defendant’s iconic trophy of tragedy – on which to pounce. One
3
such trick was to file this action in the Southern District of New York, a judicial district having
nothing to do with any party or any of the conduct giving rise to the claim. No allegation
justifying venue was even attempted, and it is no wonder: When compelled to justify the good
faith basis for filing this lawsuit in a patently irrelevant district, plaintiff was reduced to the
highly novel argument that venue was appropriate in the Southern District because the subject
matter of its claim was located there. The Southern District was, unsurprisingly, not moved, and
transfer to this District followed.
Defendants then moved to dismiss plaintiff’s claims on substantive grounds. The Court,
in a teleconference, urged the parties to settle, and designated the case as administratively
“inactive” while the parties engaged in extensive settlement discussions. (Coleman Cert., ¶¶ 6-
8.) These discussions were aided directly by multiple telephone conferences with District Judge
Cecchi, her judicial clerk, and Magistrate Judge Falk.
It was in the course of a discussion with the Court that the parties were able to identify
the financial range of the settlement, following which they shortly thereafter came to a final
compromise figure within that range. The remaining issue between the sides involved
negotiation on the wording of a confidentiality provision. Defendants were unwilling to settle the
claims if the decision to compromise would be used by plaintiff, a media organization, to make
political and headline-generating hay. Thus counsel on both sides worked assiduously to craft
language that would allow reporters to report on the fact that the case was settled without delving
into the details of the Agreement.
This process was time-consuming, especially given that John J. Tiemessen, Alaska
counsel for defendants and their authorized representative, needed to seek authorization
regarding the sensitive language implicating these issues from a range of decision-makers
4
including both the individual defendant, whose travel and appearance schedule can make it
difficult to reach her at any particular moment, and officers responsible for policy within the
corporate defendant. Counsel for the plaintiff indicated, during the course of discussions, that he
appreciated the situation, and that some delays were understandable under the circumstances.
Despite the protracted negotiations and the intercession of the Christmas and New Year’s
holidays, the parties were able come to an agreement with respect to each and every term, and
plaintiff’s counsel transmitted its memorialization of the Agreement by email to defendant’s
New Jersey counsel on Monday, February 9, 2015, prefacing its transmittal email with the
words, “I think that we are in agreement as to the attached settlement agreement.”
(Coleman Cert., ¶ 20.) The Agreement consisted of three simple terms:
1. Within 7 business days of the execution of this agreement, NJMG will
dismiss the action between the parties pending in the United States District Court
for the District of New Jersey, civil action no. 14-cv-00553-CCC-MF, with
prejudice and without costs pursuant to a settlement agreement between the
parties.

2. Within 5 business days of the execution of this agreement, Palin shall pay
to NJMG $15,000 by check payable to “Dunnegan & Scileppi LLC as attorneys
for North Plaintiff Group.”

3. The parties and their respective agents and attorneys agree that there shall
be no affirmative publicity regarding the terms or existence of this Settlement
Agreement. Affirmative publicity includes, but is not limited to, press releases,
on-the-record interviews, off-the-record interviews, announcements on social
media platforms or websites, multimedia/video communications, or similar types
of communications. The parties agree that they are permitted to provide a copy of
the Settlement Agreement when it is responsive to proper discovery demands in
litigation. Notwithstanding the foregoing, the parties further agree that: (1) news
reporters for the plaintiff are free to report on the existence of the settlement, and
about whatever facts they learn from sources other than NJMG; (2) the parties or
their respective attorneys or agents may respond to questions about the litigation
posed by any third party, except that statements about the case must be limited to
confirming its settlement and directing the third party to the court file; and (3) this
settlement specifically incorporates, and does not replace, the terms of the
5
Confidentiality Agreement entered into by counsel on September 13 [sic], 2013.1
The transmittal e-mail from plaintiff’s counsel attaching the settlement agreement then
stated, “Please return a signed copy of the settlement agreement to me in pdf by the close of
business tomorrow.” While this sentence began with the word “please,” it was actually meant, as
events later demonstrated, as a threat – for while the email “requested” a return of the document
by the close of business the next day, i.e., Tuesday, it had itself already been sent at 5:22 PM on
Monday. This “deadline” was entirely arbitrary and unilateral; indeed, plaintiff’s counsel knew
that obtaining signatures on behalf of the defendants in less than 24 hours was almost certainly
impossible – but, like the takedown demand that this case began with, was not literally
impossible.
Rather than assume that plaintiff was engaged in such cynical maneuvering, however,
defendants assumed that plaintiff’s the “deadline” was a typical lawyerly locution along the lines
of “Let’s finally get this done” – a sentiment with which defendants concurred. Beyond that,
there was no reason to believe there could be material significance to any suggestion of a 24-
hour “deadline” to the Agreement, which never included a time-is-of-the-essence term. In the
course of the months of negotiation, plaintiff never mentioned this date, or any other, as being
significant as one by which the deal had to be memorialized. Nevertheless, the deal was already
was finalized, and, after all, the transmittal email itself read, “I think that we are in agreement as
to the attached settlement agreement.”
This assumption was bolstered when that date came and went without plaintiff’s counsel
calling or e-mailing to check the status of the signing of the document memorializing the
Agreement or, for that matter, transmitting its own executed copy of the Agreement. Considering
that the case was already deemed “inactive” by the Court and it was simply a matter of

1 This date was erroneous, as will be discussed below.
6
exchanging signed counterparts of a contract whose terms had been fully agreed upon,
defendants had no reason to believe there was any reason to believe that plaintiff intended to
attempt to extract itself from its commitment to the Agreement.
In fact, when Alaska counsel reviewed document drafted by plaintiff, he discovered that
it contained an important error in reciting the date of a prior confidentiality agreement, with
which New Jersey counsel had not been involved. That earlier document was actually dated
September 16, 2013, not September 13, 2013, as plaintiff’s memorialization of the Agreement
stated. Defendants’ counsel sought to correct this error, but by this point plaintiff’s position was
that its post facto “deadline” for execution by defendants had passed and it would no longer
honor the Agreement. Plaintiff refused to identify any basis for its position other than its
insistence that it had “warned” defendants that its patience was running out. (Coleman Cert., ¶
25.)
One thing, however, had in fact changed from the time the parties finalized the terms of
the Agreement and the time it was put into written form for execution: Shortly after the terms of
the Agreement were finalized, Plaintiff learned of decision denying a motion for summary
judgment involving similar legal issues by U.S. District Judge Edgardo Ramos in the Southern
District of New York in North Jersey Media Grp. Inc. v. Pirro and Fox News Network, LLC, No.
13 Civ. 7153. By all indications, plaintiff was certain that notwithstanding the order of transfer,
this Court would not only treat the cases as identical but treat the Southern District’s decision as
all but binding on this Court – and would ignore the fact that it had agreed to a settlement in this
case and merely manufactured an excuse to get out of it in order to get what it figured would be a
new bite at the Big Apple. (Coleman Cert., ¶ 23.)

7
LEGAL ARGUMENT
I. THE SETTLEMENT AGREEMENT IS A BINDING CONTRACT AND
SHOULD BE IS ENFORCED
The construction and enforcement of settlement agreements in federal court is governed
by state law. Excelsior Ins. Co. v. Pennsbury Pain Center, 975 F.Supp. 342, 349 (D.N.J. 1996).
In New Jersey law, as elsewhere, an agreement to settle a lawsuit is a contract, which, like all
contracts, may be freely entered into and which a court, absent a demonstration of fraud or other
compelling circumstances, should honor and enforce. Borough of Haledon v. Borough of North
Haledon, 817 A.2d 965, 975 (N.J. Super. Ct. App. Div. 2003); Green v. John H. Lewis & Co.,
436 F.2d 389, 390 (3rd Cir. 1970).Under traditional contract law principles, “a contract arises
from the manifest intentions of the parties to engage in an offer and acceptance of sufficiently
definite essential terms.” Excelsior Ins. Co., 975 F.Supp. at 349. Thus an “agreement to settle a
lawsuit, voluntarily entered into, is binding upon the parties, whether or not made in the presence
of the court, and even in the absence of a writing.” Green v. John H. Lewis & Co., supra, 436
F.2d at 390. Indeed, execution of a written agreement is unnecessary where, as here, there is no
dispute on the record that there was agreement as to the material terms by those with decision-
making authority. See Elustra v. Mineo, 595 F.3d 699, 708-09 (7th Cir. 2010) (affirming
unsigned settlement reached in presence of magistrate judge); American Eagle Outfitters v. Lyle
& Scott Ltd., 584 F.3d 575, 582-85 (3rd Cir. 2009) (affirming enforcement of unsigned term sheet
in commercial negotiations based on evidence, textual and otherwise, suggesting that the parties
meant to be bound by the term sheet); Campbell v. Adkisson, Sherbert & Associates, 546 Fed.
Appx. 146, 153 (4th Cir. 2013) (enforcing oral settlement agreement reached during telephone
call despite claim that agreement was contingent on approval by defendants’ senior management
and execution of writing). Moreover, there is a strong public policy in favor of settlement. See,
8
e.g., Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). In consideration of this policy, courts should
“strain” to uphold settlements. Bistricer v. Bistricer, 555 A.2d 45, 49 (N.J. Super. Ct. Ch.
Div.1987). Accordingly, absent compelling circumstances, courts will enforce settlement
agreements. Zuccarelli v. Dep’t of Envir. Prot., 741 A.2d 599, 604 (N.J. Super. Ct. App. Div.
1999).
Here, the parties had a written covenant memorializing each and every material term of
the Agreement. Specifically, both sides agreed to the amount of the payment; to the withdrawal
of the civil action; and to the exact wording and contours of the confidentiality clause. Plaintiff
even admitted in its transmittal email that “I think that we are in agreement as to the attached
settlement agreement.” At no point in the course of subsequent communications has plaintiff
ever suggested any failure of the parties to achieve a meeting of the minds as reflected in the
document it attached to that email.
Plaintiff’s post facto, arbitrary deadline for signatures was never a term of the Agreement
or even, during the time when the Agreement was being negotiated, a demand, a request or even
a suggestion. It was simply a device inserted at the very end of the process as a reasonably
certain way to get out of a deal it now regretted. The strong public policy favoring settlement,
combined with common law contractual principles set forth above and the record indicating the
sharp practice by plaintiff by which it has attempted to avoid its commitments under the
Agreement, provide legal and equitable grounds for the Court to compel the enforcement of the
Agreement.

9
CONCLUSION
For all the foregoing reasons, this Court should grant this motion to order that the terms
of the Settlement Agreement of February 9, 2015 be deemed enforceable and this matter be
dismissed with prejudice.
GOETZ FITZPATRICK LLP

By: _______________________
Ronald D. Coleman (RC 3875)
Brian Farkas (BF 3418)
One Penn Plaza—Suite 3100
New York, NY 10119
(212) 695-8100
rcoleman@goetzfitz.com
Attorneys for Defendants
SarahPAC and
Sarah Palin
Dated: April 9, 2015
Of Counsel:
John J. Tiemessen (Pro Hac Vice Application Pending)
CLAPP PETERSON TIEMESSEN THORSNESS
AND JOHNSON LLC
411 Fourth Avenue—Suite 300
Fairbanks, Alaska 99701

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