A home for those who love almost everything about The Ticket (1310 AM, 96.7 FM, Dallas-Fort Worth), and who would like to discuss -- respectfully and fondly -- their thoughts on how (and whether) to eliminate the "almost."
There was a time when I judged Sunday morning’s “Work in Progress” with Justin Montemayor and David Mino to be one of my favorite shows on The Ticket, if not the one I looked forward to the most. I wrote about it:
During their final segment, they said that WiP wasn’t really disappearing – it was just moving to 1-3 weekdays.
I was doing something else at the time, so my headset may have been deceiving me, but in their lengthy reference to the new afternoon show and all the fun they would be transporting there, I don’t recall a single mention of Sean Bass.
No, I don’t think this is a clue that Sean Bass is getting dumped from 1-3 weekdays. But it was odd that Justin and David spoke as though they would continue to be equal partners on that show, with nary a syllable about Sean.
I have not been able to tune in to more than a few minutes of that show, and it was before Justin was able to join them as producer. I gather Confessors saw an uptick in entertainment value when Justin joined.
Anyway, I’ll look forward to hearing the two of them, in whatever capacity, every day.
They got a little more specific about WiP continuing by saying it would be the name of any fill in shows they do without Sean. They kinda made a point to correct themselves a bit.
Since Justin has joined 1-3 is certainly is better, but Monty is being very careful in choosing how much to chime in. I think himself and Mino don’t want to take over and make Sean feel like a third wheel. I’d prefer that arrangement! But they certainly are sticking with Mino and Sean as the defacto hosts. Hopefully going forward there is more Monty…or Matt is replaced by him. At least we have a new WTDS host…
The show was relaxed and funny and sportsy and somehow utterly perfect for lazy Sunday morning breakfasts and shuffling around. Glad the boys both earned promotions and I know there’s more factors involved than I know, but elevating WIP to a full time show seemed an obvious cure for a partially self-induced midday trauma. I hope Cat doesn’t come to regret the half measure he took instead.
The last week with Monty was definitely an upgrade. I think Monty will prob end up talking more and more and end up like Blake, or like Jake was back in the day. I was never a big hangzone fan to begin with so I’m liking it well enough so far.
The last week with Monty was very much an up grade over the week of just Sean and Mino. Sean was even better, still not my favorite but better. Friday’s show with out Matt and Monty riding shotgun with Donnie was great, at least to my uneducated in radio ears.
A M-F person? My guess is Blake. There's no need for him to be there anymore as the show he signed up to produce for is no longer there. I don't think I've heard him on the weekly Rangers show anymore either as it seems to have been taken over by Killer.
Blake going to TDZ right now would be another violation of the non-compete. It says they can't solicit Ticket employees to work with them. But as part of the agreement at mediation that could be an option.
Or, he could be headed over to the Freak (or another place) to get started there with the better pay expecting the boys to eventually end up over wherever they eventually plan to go so he might go to get better pay now for the next 5 months or however long is decided in the Court batt. If he goes for a producer gig, it could signal what their plan is.
Blake would make sense. It would also fall into line with the depatures of Sirois and Danny. Alll sort of timed to coincide with a new endeavor/nc lay out. Thinking here obviously oof the inevitable DZ nc period.
Nice to discuss things Ticket other than DnJ. As a HoF broadcaster once opined, back when he actually did HoF broadcasting, and I paraphrase: "Let's talk about those who are here."
A week and a day into to WiSP and I'm digging it. Now if something can be tweaked during the hours of 10-1.
I believe that Blake has family connections with higher-ups at cumulus, which was the nepotism theory in his getting the HZ producer role back in the day. So that goes against the idea of him spurning cumulus to join a rival, especially a contentious one
I was able to listen to Friday 10-1 and Monday 10-1. I have to agree with you guys, MM bogs that thing down. I did not really have a well formed opinion on him, but wow, night and day difference.
I agree that MM is a bit of a bog these days but they've only been doing the show a couple weeks. All the other participants have worked together before.
Maybe, and I know this is crazy, we give them a little time to find their rhythm.
I think a lot of people compare the new invasion to the hangzone, but the invasion is norms replacement show, with an extra hour. I’m not loving it yet either, but I also never loved the invasion with norm. Sean, Mino, and Monty is good enough early on that I think It’ll prob end up being ok.
WFAA: Is podcasting specifically what you want to do longterm? Or are you just trying to get past this legal stuff in the interim? McDowell: I think you kind of hit it there in the second one, too. I don't know... We don't know what we want to do long-term. We didn't know short-term! We thought we'd just pop ourselves behind a paywall, talk a little bit. And, y'know, get through into next year, and then kind of try and evaluate. Look, again, we didn't expect to be here. We clearly don't have a plan here.
There it is. Anyone thinking TDZ is a long term plan is fooling themselves. Get ready for: Step 1) “We were blown away by this amazing offer from the Fan/Freak!” Step 2) “We can still do all the stuff we want to do!” Step 3) “We are shutting down the Patreon because we feel we owe it to our new employer to give it our full attention!” Step 4) Jake keeps writing.
I did a quick fly-by to the Speakeasy the other day. That thing is such a mess. It'll be interesting to see the book numbers after they did their shift change ups
I have no idea with what’s going on with the freak, they moved the hosts around but kept the names or did the names move too? Down beat was PM drive, speak easy was an drive? Are they switched?
Downbeat moved to AM with Danny & Sirois, KT stayed in AM. Speakeasy moved to PM with Cavanaugh & Julie, Rhyner stayed in PM. So two moves and two shake-ups.
I would think lineup after Jan 1 would be: 6-10am: Downbeat 10a-12p: B&S 12-3p: Speakeasy 3-7p: Hangzone
A home run would be to make a hard push at WiP to replace Speakeasy at 12-3p and reshuffle hosts a bit. Maybe even bump out B&S for WiP. Not sure what B&S investment in station, but the weakest of all shows.
In House: You might be correct but so what if they made a mistake? They are taking a gamble and it might not pay off. That is life. I certainly don't begrudge them betting on themselves even if turns out to be suboptimal. The more I think about it the more I think we are collectively selfish in that we don't want anything to change our little ticket world so when the boys jumped we collectively take some offense to the fact our radio world was somewhat rocked.
If you quit your job to open a restaurant, you at least give some thought to opening a restaurant before you quit your job. If you quit your job to go to law school, you take the LSAT & apply to law school & get accepted before you quit your job. At least, that’s what non-morons do; that’s what adults do. Dan and Jake will have you believe they quit 6 figure jobs with no F’ing plan.
My sense is that Dan's statements to WFAA are litigation-oriented, and disingenuous if not untrue. His last sentence, "We clearly don't have a plan here," rings like he's hoping no one will look into footsie with iHeart.
It beggars belief to think that these guys blew off the Ticket income with no plan other than the podcast, a podcast which was going to be in legal peril almost immediately.
No. Like Your Plainsman, they have one eye on the "right to match" clause that to date has been slumbering peacefully in their contracts, but which will spring to life once they sign on with The Freak or any other station within a short period of time after the expiration of their noncompetes, whenever that may be.
Dan's WFAA statements feel like an attempted misdirection play to me, and not a very persuasive one. These guys just weren't that manana about their futures.
I tend to agree. The right to match is shocking to me. Knowing it is in the contract, this all seems pretty clear now. Come up with a set of demands that Cumulus would never match & go over later to the fan/freak.
I don’t care if people sign up for the Patreon or not or listen to the freak or the fan or the ticket. I do find the BS being tossed about insulting.
The more I have read and heard the more I really think they are trying to be the guys that took down the no-compete clause and fought for the little guy. Like they would be some kind of trailblazers. If they really were going to end up at TF I think they would have waited a little longer and kept more under the radar. Instead, they quit and then immediately turned around and poked Cumulus in the eye creating a podcast using ticket IP knowing they would come after them. That got the lawsuit filed, which was all part of a master plan. Without the lawsuit, there is no court to argue the non compete issue.
Their representation choice seems to match this thinking. Then, the filing of the NLRB complaint as soon as they were served with the lawsuit. It just all seems to add up to me that this whole thing was a very calculated plan to fight to end non competes in court. If this is true, I really hope it doesn't come back to bite them in the rear if they lose and have to pay a decent amount of restitution. I suppose we will know if/when they come out of remediation with a settlement or not.
I think this is very likely the scenario. To quote Jake from the Mom Game podcast talking about his end game for leaving -
“I’m gonna be able to lay down at night and say, all these people are doing great and that was in no small part because of some decisions that I made.”
In-House (9:31) I tend to agree with you. As with any negotiation that relates to an entity or personality in the media, there are usually 2 different narratives...the one behind closed doors while negotiating, and the one that is strategically released through media. After D&J left, TT hosts all pretty much said that D&J promised them that they would not compete against TT at another radio station. The day that D&J announce that they are joining another radio station, that smoke you see toward downtown Dallas are the multiple friendship, personal bridges being burnt by D&J.
What I’ve been thinking/saying too. The original RW news included Dan and Jake, and what do ya know? They didn’t resign their contracts. Rhyner says he wasn’t mean to be with the freak for long, guess someone will have to fill his shoes. And with cumulus being so greedy and evil, it leaves the dumb zone with no choice but to move on over to the freak.
H/T jgwagg4444 on reddit for these bullet points. Mind you they are jgwagg4444's points, so YMMV, and therefore I'd listen for your own take away. The relevant stuff is only about 6 mins long, so not a heavy time investment.
"1.Kingston has been advising ticket personalities on employment issues for 2-3 years. This could be the reason why D&J were strategic in approaching Cat about contract end dates lining up, or gathering info on board op comp and non competes.
2.While he is the lawyer who is leading this defense; he is merely the front man for some substantial legal resources that D&J have in various areas of the law. IP, etc.
3.They have crafted a whole National Labor Relations Board strategy with Bruenig - to position this as a noncompete test case that he said was about to receive some substantial national media publicity." (jgwagg4444, reddit/ticket, 8/16/23)
They may get some traction with the leftward-leaning NLRB; as I said early on when they filed their response, for success they would have to revolutionize employer-employee relations hitherto controlled solely by state law -- noncompetes are legal and, within limits, enforceable -- and it looks like that's exactly what they are hoping to do. Whether they'll get any with the court remains to be seen, but I doubt it.
This strategy is an admission that the law as it exists is not on their side. If I were Cumulus, I'd take a tape of that to the hearing and play it for the court. Judges do not like to be end-run.
I would think that cooler heads at the NLRB would see this as a very garden-variety dispute between an employer and its former employees, and not terribly sympathetic former employees at that. The NLRB could latch it onto it as a test case, sure -- but they'd have to ignore everything else SD+J are claiming in defense ("we're not competing"; "everybody else gets to do it") to make these guys out to be working-class heroes and not just guys who didn't feel like keeping their promises and are thrashing around.
In case any of you legal technicians are wondering: I am pretty certain that:
(1) A federal district court may not enjoin an NLRB unfair labor practice proceeding.
(2) The NLRB has exclusive jurisdiction of unfair labor practice claims, so Cumulus cannot compel SD+J to bring it as a compulsory counterclaim in the Dallas lawsuit.
Talked to a guy that has negotiated deals for some radio personalities in DFW, although none of the ticket guys. He doubts the NLRB end-run will work. Described it as a hail mary. As you said plainsman, it would need to upset decades of precedent.
And he described D&J as particularly unsuited for a test case. That the non-competes that the NLRB is looking to get rid of are for 'normal' jobs where the non-compete is used to depress the ability to switch jobs. The example he used (not real life) was a waiter at a high-end steakhouse. That if they agree to get trained in the "Bob's" customer service method, they agree not to go work at Pappa's, Al's, Del Frisco's, etc for 6 months. In reality there's nothing special about that training, it's just an excuse to try and stop good waiters from going to a competitor and having customers follow them.
The other example he used, which is real life, as I've also heard of this, is bands- that venues regularly put in contracts that stops a band from playing another show within "X" number of miles and "X" number of days/weeks/months. So if I'm Choctaw paying Travis tritt to play on August 16th, I don't want him booking a gig at Dickie's for August 17th and undercutting my ticket sales. He said there's a difference between protecting legitimate business interests and just depressing job options for average workers.
As for Dan and Jake, he said that jobs like in the media would in his opinion still be covered by non-competes. they're high profile, in a specialized field, that part of the draw is the personality, etc.
Dan and Jake will soon learn two very hard lessons:
1. That they are being used by their legal team as a test balloon/publicity-future income generator; that Kingston & Co. will discard them the moment this ends, regardless of the outcome, but especially if it all begins to look like a loser. And that they took counsel from those who didn't have their (DnJ's) best interest at heart, but rather, their own.
2. That once the fervor goes kaput (and the 1st phase already has petered out, we'll see if the next phase-per Kingston-begins to ramp things up again), and all of this is 5 cycles gone by, they will find out like so many others that it's the entirety of the parts that make the whole and it's the whole that in turn allows the parts to flourish. Please see Mike Rhyner and Gang.
I say neither 1 nor 2 with pleasure. Quite the opposite, in fact. I am a fan of Dan and Jake. But I also believe that Richie Whitt's intel was/is true and that they will be at The Freak as soon as their non-competes expire; that that has been the plan all along; and that they've convinced themselves while allowing themselves to be convinced that they are activists trying to better the world for the common man. Doing so makes their pact with Rhyner a little over a year ago an easier circle to square in their heads. They didn't want to look like the bad guys. They wanted it both ways and this was the avenue. Make it out to be Cumulus's fault. They were forced to go to The Freak because Cumulus wouldn't allow the podcast. Etc. Others have stated the plot far more eloquently and in better detail. Humans are weird and will do weird, irrational things more often than not.
BTW, tune into The Speakeasy sometime. If that's not a placeholder, then nothing is.
I understand the theory behind a test case (I’m a lawyer) - but if there’s any industry where it is easy to make the case that a non-compete is valid/important, it’s one where the employee’s name/image/likeness are central to their value to the organization. Feels like a pretty poor set of facts for a test case to me.
Dan mentioned on today's DZ release that 6.90 is the minimum but many have pledged more per month and mentioned some people have donated 10 dollars a month. If you conservatively use 7 dollars per person x 4415 you get a total of over 370,000 dollars per year of current commitment. Not bad to hold them over until they "figure things out"
@The Thermostat Have you ever met/know Phillip Kingston? I have. I have for over a decade dealing with him and his ideas for our shared neighborhood. Poor sets of facts bother him not even one hair off a rat's ass.
My god I hate Heritage Auction day on the Musers. I understand they probably get paid nicely to show up and sponsor this place but Heritage hijacks the show completely. Punch outis maximus
Maybe I missed mention of it, but D&J filed an amended response to the TRO motion that is significantly cleaned up visually and also seems to have edited out some of the snark present in the original response. Good move.
Dies it address that Jake’s contract specifically forbids him from podcasting or streaming for 6 months? And that despite some of the shows being behind a paywall, they have at least one show a week that is violating the contract he signed? If they haven’t cleaned up those 2 glaring weaknesses in their case, they’re going to have issues on Monday. C
I’ve always thought I was good at “reading the room”, but it’s harder on the WWW, so here’s an idea to help everybody read the room AND boost the Plainsman's comments count. Please post a short summary of what you think will happen on Monday and why. I’ll go first, next… C
I think Cumulus gets their TRO and Dan and Jake are stopped from further infringement pending trial. Possibility that just Jake is covered since his contract is much clearer than Dans as to what is competition. Judge ignores the speculative NLRB Hail Mary as it would overrule so much precedent. C
@C minus: I might have agreed with you had the judge not scheduled mediation for the next day. It's hard to see her giving Cumulus its TRO on the noncompete and then asking SD+J to mediate with a gun at their head.
I'm still of the view that she will (1) give the parties some very strong guidance as to what she is thinking, and (2) take the matter under advisement (i.e., make no ruling on the merits), and (3) setting the matter for a further status hearing at an early date following mediation.
Ok she holds her TRO for a day pending mediation. Which Cumulus, who has Jake dead to rights on violating his contract, has little interest in meaningfully participating in. So they go to mediation on whether Dan and Jake can use THZ or TDZ in 6 months when their non compete expires. But there’s just too much of this, from basic IP and work for hire rules, to non competes that a ruling against Cumulus would have nationwide effects. I don’t think this judge wants to make a statement, just to get overturned at the 5th COA. She’ll take the safer route and give them the TRO. Because Jake’s contract is a killer. C
I wonder if the lawsuit has slowed Dumb Zone subscriptions. They're at 4,421 this morning, so around 20 per day, which is a slowdown from earlier -- inevitable, of course -- but frankly isn't terrible for a show that is being threatened with death in the lawsuit.
I haven't listened to it. Does it sound pretty much like The Hang Zone? I don't mean its structure, I mean its general sound and feel. My view of the former Hang Zone was that it was a good listen, but overbogged too frequently by Dan, although there was less bogging after Jake signed on. How about now?
@memorex, you are right with point #1, and it is going to be a long and bumpy road to get there. I am not 100% convinced that D+J attorneys are always acting in their best interest. I could even argue that they were given deliberately bad advice in the beginning because breaking all non competes is the goal, rather than securing the best individual outcome for D+J.
Instead of them creating a podcast that is clearly different, they went with the too cute approach of minimal cosmetic changes and talking about releasing recordings of the negotiations. They were forcing Cumulus' hand.
This is not to say that D+J are innocent pawns. Based on a lot of the stuff I have heard Jake talk about, he may relish the opportunity to be a crusader, but we are still having fun, no? Will they still have the stomach for it if it drags on?
I go out on a limb: I think Judge Scholer will deny the request for a preliminary injunction. Or in the alternative she will do what C- said, i.e. take it under advisement pending the mediation. I expect she will also communicate to the parties in no uncertain terms what she expects to see happen at the mediation and how she sees the case shaking out if they do not settle.
I think some folks are making too much out of the inclusion of "podcast" in Jake's agreement. Cumulus must still convince the court that prohibiting TDZ is a reasonable restraint of trade.
See, I think TDZ needs to explain to the judge how doing this thing Jake agreed not to do isn’t a violation of his contract. It’s not restraint of trade, it’s enforcing a contractual obligation. Jake took money and agreed not to podcast, stream, etc for 6 months. C
Their agreements are out there to be found. Section 7, agreement not to compete for 6 months in business area. Paragraph 1.2, business area is Neilsen defined DFW market. To meet 15.50 it needs to be limited in time, area and scope of activity. Tell me why you think no podcasts for 6 months in DFW doesn’t meet the criteria. C
Oh I think Cumulus could very well end up winning on the merits, I just don’t think it’s as much of a slam dunk as people seem to think.
The preliminary injunction is a different story. Why can’t Cumulus be adequately compensated for its injuries with money? If Jake is causing irreparable harm with a podcast, why is IJB just fine and going strong for over a decade now? I’ve been an IJB listener since podcast 1 and I have often chosen to listen to the latest IJB episode instead of the KTCK stream.
Some and I do mean SOME, not all of the DnJ fanboys crack me up. They love DnJ for their honesty, pull no punches tell it like it is the way that it is approach. How there's no sacred cows on their watch. That the truth leads you to where it does, no matter how much you might not like it. And yet. Yet. They cannot stand, cannot abide honest, open, thoughtful, dispassionate analysis (by some who are actualy experts) of this situation, as it hits too close to home, or so it seems.
> I am a fan of Dan and Jake. But I also believe that Richie Whitt's intel was/is true and that they will be at The Freak as soon as their non-competes expire; that that has been the plan all along; and that they've convinced themselves while allowing themselves to be convinced that they are activists trying to better the world for the common man. Doing so makes their pact with Rhyner a little over a year ago an easier circle to square in their heads. They didn't want to look like the bad guys. They wanted it both ways and this was the avenue. Make it out to be Cumulus's fault. They were forced to go to The Freak because Cumulus wouldn't allow the podcast. Etc. Others have stated the plot far more eloquently and in better detail. Humans are weird and will do weird, irrational things more often than not.
if they had an agreement to move over, even in principle, why would they do anything that would extend their noncompete.
at this point the noncompete would have started about 7/1. they would already be 6 weeks into a 6 month non compete set to run out on about 12/1 and be ready to jump into things at at The Freak no later than 1/1.
at this point isn't the noncompete basically on hold until litigation is finished, then the 6 month timeframe starts? so already missing the first ratings book of the year next year.
Pman, I’ve listened to just the youtube episodes and imo they don’t sound ticket-y at all. Dan still bogs and says occasional inappropriate things while Jake plays the straight man, but without drops or exchanging blows with Blake it sounds more like a meandering phone conversation between friends. Also the audio quality has been poor but not near as bad as training camp which has gotten so bad it’s really testing the limits of what P1s are expected to fight through. Didn’t help they did zero bits, not even low hanging fruit like wireless or overcusser but that’s another topic.
"is a podcast a competitor" - well, if I'm Cumulus, I start with the uncountable number of social media posts and (I'd assume) endless emails from "P1's" promising to "never, ever listen to TT ever again" and "will now pay money to dan and Jake" - that pretty much makes their case.
Hi all, I'm just a simple unfrozen caveman family lawyer with 2 breach of contract cases in my history, but I like to think I'm fairly good at reading statutes and case law and applying principles to facts at hand, and I've noticed a few things as I go through all the comments on here that if like to bring to everybody's attention.
First, I see a lot of "Cumulus has Jake dead to rights on the because his contract explicitly mentions podcasting", and if trend to age, with one (rather large) caveat. Jake was doing IJB before the agreement was signed, and continued to release me episodes after the agreement was signed. It appears, based on the facts as we know them, Cumulus never sent him and TC a cease and desist letter, or give their approval. (We can infer that there was no approval from Cumulus because it wasn't mentioned in the agreement, and then in the verified complaint, Dan Bennett said, under penalty of perjury, that the first time he became aware of DnJ wanting to do outside podcasts was some time after December) This is important, because you don't get to sleep on your rights until it's convenient for you, so based on facts as we know them now, Cumulus CANNOT enforce the podcasting part of Jake's agreement (this is called promissory estoppel). This is a rather large (potentially fatal) issue that Cumulus has in both the TRO/PI, and ultimately on the merits.
Now, on to the second thing I've noticed, I do believe a lot of people may be misreading the NLRA, Garmon, and Glacier Northwest (this one was just from June, so it's pretty new, but the court, through Amy Coney Barrett, reaffirmed Garmon by a count of 8-1). Now, Garmon preemption (which was, again, unambiguously reaffirmed as good law on June 1 by the Supreme Court) has 3 things you need to show: 1) an allegation of conduct that is arguably covered under section 7 or 8 of the NLRA, 2) that the interpretation being presented has not been authoritatively been rejected by the Board or courts, and 3) show evidence that the Board would reasonably uphold a claim on that interpretation. Now, applying those standards to the facts as we know them, DnJ have clearly alleged conduct that is covered under section 7 and 8, so first hurdle is met. Second, as has been pointed out over and over again, this is a novel claim, so by it's very nature, it has not "authoritatively been rejected" by the Board or a court. Now, the third part is trickier, or it would be if the General Counsel of the NLRB didn't send a letter to all regional directors in May saying that non-compete clauses presumptively violate section 7 and 8 of the NLRA. So, they can show a reasonable likelihood of prevailing with the Board. So, by reading the statute and case law, it appears that as soon as DnJ ask for it (likely in their answer), the judge is required to stay the proceedings until the NLRB makes a decision.
Now, again, I don't practice employment/labor law, but I think I'm fairly not terrible at analysis, and I hadn't seen anything in the comments discussing these two points. And, if anybody here more steeped in labor law can point out my errors and direct me the right way, here's a preemptive mea culpa.
Familylawguy, your first point begs the question. Does IJB involve the same or essentially the same job duties as a weekday Ticket show? Unless you try to say all talking is the same, I think that's a more difficult hurdle to overcome than your quick acceptance of estoppel (I don't really see how it's estoppel versus waiver, by the way) would suggest.
Hmm, I see it as more of a threshold issue for Cumulus, as the agreement Jake signed said Company Business is "commercial radio stations and other audio platforms, including podcasting." So, based on a plain reading of Jake's agreement, IJB would be just as violative of the agreement as TDZ, so the burden is on Cumulus to show why one podcast violated the agreement and the other one does. I would say Jake could use estoppel or waiver, but I think estoppel is the better argument
But "Company Business" is not what is prohibited. The non-compete section says that the employee "shall not, directly or indirectly, engage in any activities the same or essentially the same as Employee's Job Duties for any Competing Business . . . ." The focus is on whether the podcast is the same or essentially the same as "Job Duties" (which has a rather lengthy definition). I think just saying "a podcast is a podcast" misses the nuance required by the contractual language.
But the "job duties" is a generic list of things that are required of any radio/podcast host. There are no sports radio specific job duties in the rather long list, and "competing business" is "any entity carrying on a business that is the same or essentially the same as Company Business", so, again, a plain reading of the agreement shows that Jake was violating the agreement by continuing to host IJB while employed by Cumulus.
If you have to keep addressing counterarguments, perhaps the language isn't as plain as you suggest.
You are still begging the question by assuming that IJB is a Competing Business. If you're taking the position that everything in the talking medium is the same or essentially the same, I think that's a loser of an argument. The point is that TDZ follows the same format as THZ and falls in the same sports/guy talk product that the Ticket is selling. I'm far from a P1 of IJB, but what I've heard of it, those topics are included on occasion, but it's far more freewheeling and political. I would certainly argue that it's not the same.
I appreciate @familylawguy's description of Garmon preemption. Thanks.
I note that SD+J have raised it in their response.
That response is much more sophisticated than their original response, and much better looking. There seems to be another lawyer involved, a Frank Cawley. I've been looking for some info on him, not finding much. Nothing, in fact.
Will this court apply Garmon pre-emption to stay, or dismiss, Cumulus's noncompete claim? As I and others have said, to take the position that the NLRA "arguably" covers noncompetes in the nature of the noncompete in this case (i.e., unique service agreements) would upend decades of state law and hugely expand federal regulation of non-union contracts. The NLRB general counsel thinks it should, so SD+J are not without arguments here. My personal view is that it is not "arguable" that the noncompetes AT ISSUE IN THIS CASE are an unfair labor practice covered by the NLRA and I'd dismiss this argument out of hand.
But the ball, it do crazy things sometimes.
The back-and-forth we see in these comments is exactly why lawsuits are unpredictable. Some of the legal analysis I have seen in these comments is wrong to the point of irrelevance, but one can't correct everything. Some of it is relevant and mirrors arguments that both parties have made in this case. The court is going to make one side or the other look wrong, but that doesn't mean the arguments were terrible, ignorant, anti-contractual, etc.
And I'll say it one more time, and probably some more times after this: Cumulus finds itself in this briar patch largely -- not entirely -- because of its strategic errors (mainly delays) on the front end of this case. If it had roared in after the first podcast -- and, I would argue, roared in in state rather than federal court -- Cumulus might have secured some quick relief and put the lads back on their heels. But they dithered and filed sloppy pleadings and now it's facing a sophisticated, if radical, defense it might have avoided in the short run (this defense would have emerged eventually, but (perhaps) not until Cumulus had secured a preliminary victory).
This is all hypothetical, of course -- Cumulus might not have been able to secure an emergency ex parte injunction under any circumstances. But the course of events ensured that the lads had time to file not one, but two responses and get their NLRB complaint on file, and now the federal-state battle is joined.
I think I may not have been as clear earlier, so I'll raise my estoppel/waiver question as a hypothetical: Let's say that on July 20, instead of recording and releasing TDZ, DnJ instead were announced as the new morning show on 99.5 the wolf. I'm fairly confident that we would all see that as a violation of the non-compete (commercial radio station within the broadcast area).
Now, if the format of the radio station doesn't matter, why would the format of a podcast?
It’s not the “format,” it’s what D&J are doing. If they are hosting a show that is the same or substantially the same, it’s a violation. You seem to be reluctant to come out and clearly take the position that speaking into a microphone and transmitting that speech in any manner is a per se violation, but that’s certainly the implication of your argument.
I'm not reluctant at all, as that's exactly what I'm saying the agreement purports to say, and the fact that IJB existed both before and after the agreement was signed without any action by Cumulus to stop it is fatal to the Cumulus claims.
additionally - is it not the combination of both "no podcasting" tied to the fact they're doing it with each other - where IJB w/ someone unattached to the station? There are clauses in their deals about not soliciting co-workers. my guess is buried in there - along w/ the aforementioned documentable stack of listeners telling the Ticket they're suddenly done with the station.
Non-lawyer, simple man question..Can IJB just be considered grandfathered in because it was before Kemp signed a host contract? Therefore not part of the non-compete?
Terrible answer for you: it could or it could not. Depends on what the agreement says. The best argument Jake has re: IJB is that IJB is evidence of what the contract means would be competitive or not because he did it before & after his contract without incident. That does not necessarily mean that any podcast with any participants means the same thing.
8/17 episode of the Dumb Zone just dropped. Co-hosts today are TC and one of his counsel of record, Matt Bruenig. Haven't listened yet, but seems pretty reckless.
I’m not a lawyer so maybe I’m just wrong but the IJB thing doesn’t mean much to me. Gordo has a twitch stream, after ticket prime hours, with random guests on. Now if the musers quiet, and gordo, George, and junes made a podcast, that would be competition? Why because it’s the same hosts. 2 hosts of the same show, are now 2 hosts of the same podcast. Talking similar topics. Seems simple to me.
If I were Dan and Jake, and wanted to stay making content, I’d just keep doing IJB with Dan as a guest occasionally. I think that would’ve given more grey area for cumulus to have a hard time with.
How about this take - This Dumb Zone podcast just isnt all that great.
Jake on a podcast format = he gets it. I will dive into an IJB every now and then and the hour pretty much flows. Jake and TC alone work super well - the times I've listened with a Guest (non-radio person usually) the wheels start spinning and Jake will tend to get things back on track.
Dan - he needs a clock. Or multiple people in the convo - the times I've listened to this podcast he's pretty much Fish Outta Water. Add onto 'Radio Dan' personality he built for 20years...this is why I don't think they are long for this platform. Or Hell maybe this is Dan's Mid-Life going on right now, guys....
@1124, I’m a patreon and I’m enjoying the pods thus far. I agree with you that Dan is missing that larger group to contribute and have chime in on the show (terrestrial or pod). I miss that part of D&J as well. It’s not yet a nonstarter for me to unsub though.
Been telling y'all how this turns out for over a month now:
Dan's working am or pm drive in a 3rd tier market in a part of the country he doesn't want to be in. Jake's doing pods as his beer league softball team, working in an entirely different industry all together.
Cumulus's reply was due today (the 17th), which, in these days of electronic filing, generally means "midnight on the due date," or it did when I was working that beat. That site does not report any reply filing by Cumulus.
However, there may be a lag time between the official filing and the report I get on this third-party site. I was hoping to summarize Cumulus's response on the NLRB preemption argument.
Can't stay up all night. I'll check in tomorrow morning. Anyone want to report in the meantime, please do.
Well Fxxx me. Good thing I am not an attorney. I read the Docket backwards and assumed the top was the latest. I stand and sit corrected. They did file yesterday.
wow - Cumulus publicly admitting they've lost "multiple advertisers" wasn't something I thought they'd be so quickly willing to do. including the claim Dan has talked to not just one (Adam Romo) advertiser is also a new twist.
but I'm mostly interested in others opinions of Cumulus' argument that TDZ is a competitor because of their appearances in "over 2000 podcasts" owned by Cumulus. ie: all of those shows/segements that were converted into podcasts that we promoted and financially benefitted from is exactly what makes their new venture - which is a business they now own and intend to access our listeners from - is the argument for the TRO.
I also laughed each time they pulled damning quotes from the various appearances of the guys on there, and other, podcasts. “I might bag on the company a little bit now that I’ve been told that that’s possibly okay.” - Jake.
Radio Knob, I agree that the multiple advertisers lost line was surprising, but it would have been a lot more impactful as evidence. I wonder if they're going to call anyone at the hearing.
I have been wondering when Cumulus would bring up the fact that Jake and Bob did an NFL draft podcast that was never available over the air.
It is a bit surprising that they relegated waiver to a footnote, but then again D&J devoted at most a paragraph or two to that argument, so maybe the strategy is to not give it additional prominence.
I don't know about your prediction p-man, Cumulus' reply is pretty stout knocking down SD+J's arguments point by point and backing it up with case law. In contrast to with SD+J's arguments that were pretty weak.
Meanwhile on Reddit, many seem to feel “uncomfortable” listening to the ticket these days. My goodness. You’d think the musers were propping up Alex Jones or something.
They're akin to vegans who wear leather, eco warriors who use computers, and conservatives who espouse the importance of family while having affairs replete with burner phones and alt-Lyft accounts.
But that's reddit for you. Ever hysterical, always screaming, and the smartest people in the room.
I'm wondering how long it's going to take for them to turn on Boomer Dan? Over-Under Halloween. I'll take the under.
The reply has much better legal arguments. Someone finally did some legal work. While I still think they win in the long run, I don't think they have provided any actual evidence of harm to get the TRO/PI. Again, they comment they lost advertisers but it is not actually any evidence in the form of affidavits or even a sworn pleading this time. In my experience, a TRO/PI is an high standard that requires actual evidence to get a ruling before a full trial on the merits. I'm not sure I would grant something like this based solely on sworn pleadings. Of course, Cumulus might be waiting for the hearing to put on the live testimony, but I think it would need to be more than just DB testifying to show harm that requires a TRO/PI now.
One of the advertisers is clearly Alamo Drafhouse. The Freak is doing a double remote and movie there today. They havent done any Cinema with the Snake since D+J left.
My understanding of phrases like that is to cover new technology or new platforms. Periscope was all the rage like 5 years ago, and then just disappeared suddenly. So the software or platform name doesn’t really matter, if it’s periscope, twitch, etc, it’s the concept, not the medium. C
No podcast platform lets you click a few buttons and geo-restrict who can access it by metropolitan area. You could possibly restrict by country, if anything.
In an insane world I suppose you could create your own podcast platform that restricts access based on IP address location. Nothing about this is easy or effective. If anything is easy it's bypassing geo-restrictions via VPN.
I'm on the move this morning but will make two quick comments.
(1) In agreement with A.C. that if Cumulus has evidence of advertising lost on account of SD+J's competition, then that evidence should have been in an affidavit or otherwise identified as evidence that will be presented at the hearing. Saying it in a brief isn't evidence. However, since this is a reply which should not contain new evidence (although they frequently do), perhaps Cumulus felt that this evidence, if it exists in swearable form, should be presented at the hearing.
(2) I've read the NLRA statutes at issue and portions of the famous general counsel memo, and I came to the same conclusion that Cumulus comes to in its brief dismissal of the lads' federal labor-law crusade. I don't think it's that technical if you ignore the case citations, so I'll cut and paste here:
"Finally, Defendants assert that Susquehanna’s claims are pre-empted by the NLRB, and therefore any preliminary injunction predicated upon those claims would disserve the public interest. Defendants’ argument is that enforcement of non-competition agreements is contrary to and disserves the public interest solely because of a memorandum (“GC 23-08”) published earlier this year by Jennifer A. Abruzzo, one of the General Counsel for the National Labor Relations Board. (Jennifer A. Abruzzo, Non-Compete Agreements that Violate the National Labor Relations Act, Memorandum GC 23-08 (May 30, 2023)). Contrary to Defendants’ argument, however, non-competition agreements have been enforced in this state since at least 1897, seeGates v. Hooper, 90 Tex. 563, 564 (1897), and Texas has codified the enforceability of non competition agreements at Section 15.50(a) of the Texas Business and Commerce Code. This well-established public policy of Texas confirms that such agreements are enforceable, and an unelected federal attorney in Washington D.C. cannot alter this policy by merely writing a memo. This is not the law and is repugnant to this Country’s federalist system. Indeed, the “Fifth Circuit and Texas courts regularly uphold restrictive covenants and grant injunctions.” Miner, Ltd. v. Anguiano, 383 F. Supp. 3d 682, 706 (W.D. Tex. 2019).
"Furthermore, pre-emption is not applicable under the Garmon doctrine, as in the 90-year history of the NLRA, no court in this county has ever ruled that non-competition agreements are “arguably subject to § 7 or § 8 of the [NLRA].” San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Indeed, nothing about Defendants’ violation of their non-competition agreements is related in any way to even hypothetical collective bargaining activity. Ms. Abruzzo’s memo confirms that it is directed at non-competition provisions “imposed on low-wage or middle wage workers who lack access to trade secrets or other protectable interests.” (GC 23-08, 5). This does not cover Defendants who made well over six figures and received confidential information from Susquehanna, all while Susquehanna invested years of resources promoting Defendants to amass a public audience. Ms. Abruzzo further notes an exception where the former employee seeks an ownership interest in a competing business, which has happened here. (GC 23-08, n. 23.)
"Further, the Fifth Circuit has noted, Garmon preemption “does not apply to conduct that is a mere ‘peripheral concern’ of federal labor law or that touches ‘deeply rooted’ state interests.” Windfield v. Groen Div., Dover Corp., 890 F.2d 764, 767(5th Cir. 1989). As demonstrated by the lack of any case law finding violation of the NLRA for non-competition agreements and Texas’ enforcement of such agreements, the Garmon pre-emption rule is inapplicable."
*******
I find this highly persuasive. This makes the lads' labor-law argument look desperate and amateurish. I don't think Cumulus needs to worry about the lads' labor-law misdirection ploy, or the unfair labor practice filings with the NLRB, any further. Fails to launch.
Well, a pretty good counter that I had not considered until the reply is that the admittedly broad language you quoted is only applicable to a 50-mile radius around Dallas. So they could go to Houston or Des Moines, but in Dallas, where they've been cultivated and developed by Cumulus as public entertainment personalities, you need to wait 6 months before you ply the same or even similar trade. I think that's a strong argument. And if they indeed have the ability (I have no clue) to geo-restrict access to the podcast, it's even stronger.
Hmm, P man and a few others have been extremely interesting and informative to read regarding this whole situation. Some have been increasingly condescending and a walking talking example of why people hate lawyers.
I’m a lawyer. My dad’s a lawyer. We don’t like lawyer jokes. The guy that killed a family friend (killed another & shot 4 others) in the Tarrant County Courthouse in 1992 kinda ruins the humor. I wasn’t a lawyer then (just a runner) but I was in the courthouse when it happened.
But, hey, let’s just keep joking about killing every member of an entire profession.
I’d reply with a flippant, “LOL”, but it would probably be deleted. Bad things have happened to the butt of most jokes somewhere along the line, especially when the butt of the joke is a general group of people. Are Aggie jokes off limit because the bonfire tragedy? Are Dumb Blonde jokes made taboo because of sexual assaults? What generalizations can we laugh about?
And that reminds me of-part if the issue- what Cumulus views as competitive and what isn’t. If there’s an email from Catlin giving Dave permission to do a music based podcast, it just points out that they can delineate a podcast that imitates the Ticket in sum and substance, and ones that don’t- IJB, High T with Dave, the Mom game when Julie was there, etc. c
It's your friendly neighborhood simple unfrozen caveman family lawyer, and I've read the reply to the response, as well as re-read the relevant NLRA sections and relevant case law (Garmon, and then the most recent SCOTUS case that covers it, Glacier Northwest), and I'm trying to square a few circles here. Now, in the NLRA, section 7 states "Employees shall have the right to...bargain collectively...and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection". Section 8, in relevant part, says "It shall be an unfair labor practice or an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title]". Section 10 of the NLRA gives the NLRB the power to "prevent any person from engaging in any unfair labor practice affecting commerce." So, if you're alleging a violation of Section 7 or 8 of the NLRA, the NLRB has the power to hear your case.
So, as a foundational issue, DnJ have both made sworn statements that they (along with other hosts) approached management in re their collective desire to bargain collectively (very much covered under section 7), and in response, they were told that they could not discuss salary or compensation with other hosts. So, as a foundational issue, DnJ have pled facts enough to initiate the complaint process with the NLRB under the NLRA, and specifically under Sections 7 and 8. They filed these complaints on July 27 (7 days before Cumulus filed suit in N.D.Tex).
Second, on May 30, 2023, the NLRB General Counsel issued a letter directing regional directors to submit to the office of the General Counsel "cases involving non-compete provisions that are arguably unlawful under the analysis summarized herein, as well as arguably meritorious special circumstances defenses."
But, what happens when a state law conflicts with a federal law? Constitution says federal law trumps state law. Under the NLRA, Congress has given the NLRB the power to determine federal law. In 1959, the Supreme Court laid out the procedure when a state law conflicts with the NLRA (San Diego Building Trades Council v. Garmon). The Supreme Court said that, "when an argument is arguably subject to Section 7 or 8 of the NLRA, the States as well as the general courts must defer to the exclusive competence of the NLRB". So, as the Supreme Court in Glacier Northwest, Inc. v. Teamsters (opinion issued June 2, 2023), the process to determine if Garmon preemption occurs is a 2 part test. The party asserting preemption must 1) "advance an interpretation of the NLRA that is not plainly contrary to its language and that has not been 'authoritatively rejected ' by the courts or the Board", and 2) "put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation".
Now, here, DnJ have advanced an argument that isn't plainly contrary to the language of the NLRA, and, while no court has endorsed their argument, it appears that no court has rejected the argument either. So it appears that they have made it past the first hurdle. The second hurdle is a bit more of a lift for them, but the letter from the NLRB GC is incredibly competent evidence that the Board may, in fact, endorse the claim.
Now, is it a novel claim? Absolutely. But that doesn't make it wrong, and if they can meet the two part test, Garmon preemption applies, and after the NLRB has their day, Cumulus can take their arguments to the 5th Circuit and have the 5th Circuit put the NLRB back on the straight and narrow.
Curios, as I missed this, but can you point to where you read, "DnJ have both made sworn statements that they (along with other hosts) approached management in re their collective desire to bargain collectively"? I recall them stating they'd seen the email Cumulus sent support staff about signing NC's and being told they can't discuss salary stuff - but not that a group of on-air/support staff formally requested to bargain collectively.
In the response and declarations, they said that they approached DB with Corby and Dan regarding collective bargaining, and DB said to not talk about contracts or pay with other employees
Are you referring to TDZ's response Sec 9-12? Because I don't see Corby's name, and the instruction to cease "discussing compensation or contract terms" came after the pair of them attempted to line up the expirations of their contracts - not after approaching DV with Corby - again, unless I'm missing something.
Page 58 of 77, Ex. A, third full paragraph (Dan's declaration), and page 62 of 77, Ex. B, third full paragraph. They both say that they, along with Bob and Corby, had a meeting with Dan Bennett and Jeff Catlin where they expressed a desire to collectively bargain, and were told by management that they were prohibited from discussing their contracts with each other.
There was a time when I judged Sunday morning’s “Work in Progress” with Justin Montemayor and David Mino to be one of my favorite shows on The Ticket, if not the one I looked forward to the most. I wrote about it:
ReplyDeletehttp://myticketconfession.blogspot.com/2020/03/is-this-best-show-on-ticket.html
Today was their last show.
Or was it?
During their final segment, they said that WiP wasn’t really disappearing – it was just moving to 1-3 weekdays.
I was doing something else at the time, so my headset may have been deceiving me, but in their lengthy reference to the new afternoon show and all the fun they would be transporting there, I don’t recall a single mention of Sean Bass.
No, I don’t think this is a clue that Sean Bass is getting dumped from 1-3 weekdays. But it was odd that Justin and David spoke as though they would continue to be equal partners on that show, with nary a syllable about Sean.
I have not been able to tune in to more than a few minutes of that show, and it was before Justin was able to join them as producer. I gather Confessors saw an uptick in entertainment value when Justin joined.
Anyway, I’ll look forward to hearing the two of them, in whatever capacity, every day.
Good luck to both of them.
They got a little more specific about WiP continuing by saying it would be the name of any fill in shows they do without Sean. They kinda made a point to correct themselves a bit.
ReplyDeleteSince Justin has joined 1-3 is certainly is better, but Monty is being very careful in choosing how much to chime in. I think himself and Mino don’t want to take over and make Sean feel like a third wheel. I’d prefer that arrangement! But they certainly are sticking with Mino and Sean as the defacto hosts. Hopefully going forward there is more Monty…or Matt is replaced by him. At least we have a new WTDS host…
The show was relaxed and funny and sportsy and somehow utterly perfect for lazy Sunday morning breakfasts and shuffling around. Glad the boys both earned promotions and I know there’s more factors involved than I know, but elevating WIP to a full time show seemed an obvious cure for a partially self-induced midday trauma. I hope Cat doesn’t come to regret the half measure he took instead.
ReplyDeleteThe last week with Monty was definitely an upgrade. I think Monty will prob end up talking more and more and end up like Blake, or like Jake was back in the day. I was never a big hangzone fan to begin with so I’m liking it well enough so far.
ReplyDeleteThe last week with Monty was very much an up grade over the week of just Sean and Mino. Sean was even better, still not my favorite but better. Friday’s show with out Matt and Monty riding shotgun with Donnie was great, at least to my uneducated in radio ears.
ReplyDeleteAnother ticket person is headed for greener pastures. Not a host.
ReplyDeleteA M-F person? My guess is Blake. There's no need for him to be there anymore as the show he signed up to produce for is no longer there. I don't think I've heard him on the weekly Rangers show anymore either as it seems to have been taken over by Killer.
ReplyDeleteYeah, Blake seems very non plussed with Matt. Plus I don’t think he was ever “announced” as the new producer for The Invasion.
ReplyDeleteBlake going to TDZ right now would be another violation of the non-compete. It says they can't solicit Ticket employees to work with them. But as part of the agreement at mediation that could be an option.
ReplyDeleteOr, he could be headed over to the Freak (or another place) to get started there with the better pay expecting the boys to eventually end up over wherever they eventually plan to go so he might go to get better pay now for the next 5 months or however long is decided in the Court batt. If he goes for a producer gig, it could signal what their plan is.
If it's Blake, that's a shame. I really enjoy his contributions.
ReplyDeleteBlake would make sense. It would also fall into line with the depatures of Sirois and Danny. Alll sort of timed to coincide with a new endeavor/nc lay out. Thinking here obviously oof the inevitable DZ nc period.
ReplyDeleteNice to discuss things Ticket other than DnJ. As a HoF broadcaster once opined, back when he actually did HoF broadcasting, and I paraphrase: "Let's talk about those who are here."
ReplyDeleteA week and a day into to WiSP and I'm digging it. Now if something can be tweaked during the hours of 10-1.
I believe that Blake has family connections with higher-ups at cumulus, which was the nepotism theory in his getting the HZ producer role back in the day. So that goes against the idea of him spurning cumulus to join a rival, especially a contentious one
ReplyDeleteThat’s what I remembered hearing a while back too
DeleteI was able to listen to Friday 10-1 and Monday 10-1. I have to agree with you guys, MM bogs that thing down. I did not really have a well formed opinion on him, but wow, night and day difference.
ReplyDeleteI agree that MM is a bit of a bog these days but they've only been doing the show a couple weeks. All the other participants have worked together before.
ReplyDeleteMaybe, and I know this is crazy, we give them a little time to find their rhythm.
I think a lot of people compare the new invasion to the hangzone, but the invasion is norms replacement show, with an extra hour. I’m not loving it yet either, but I also never loved the invasion with norm. Sean, Mino, and Monty is good enough early on that I think It’ll prob end up being ok.
ReplyDeleteWFAA: Is podcasting specifically what you want to do longterm? Or are you just trying to get past this legal stuff in the interim?
ReplyDeleteMcDowell: I think you kind of hit it there in the second one, too. I don't know... We don't know what we want to do long-term. We didn't know short-term! We thought we'd just pop ourselves behind a paywall, talk a little bit. And, y'know, get through into next year, and then kind of try and evaluate. Look, again, we didn't expect to be here. We clearly don't have a plan here.
There it is. Anyone thinking TDZ is a long term plan is fooling themselves. Get ready for:
DeleteStep 1) “We were blown away by this amazing offer from the Fan/Freak!”
Step 2) “We can still do all the stuff we want to do!”
Step 3) “We are shutting down the Patreon because we feel we owe it to our new employer to give it our full attention!”
Step 4) Jake keeps writing.
The problem is there isn’t a slot for them on the freak.
DeleteDo you cut an hour from each show and create a 3 hour block?
There may be in 6 months…
Delete4,379
ReplyDelete69,007
ReplyDelete1310
ReplyDelete93,000,000
ReplyDelete3.14159265358979323846
ReplyDelete0112358132154
ReplyDeleteI've been hearing a little more of Donovan and Matt, and I need to hear more, but I've heard enough to form a preliminary opinion:
ReplyDeleteLess Blake.
4.8.15.16.23.42
ReplyDeleteI did a quick fly-by to the Speakeasy the other day. That thing is such a mess. It'll be interesting to see the book numbers after they did their shift change ups
I have no idea with what’s going on with the freak, they moved the hosts around but kept the names or did the names move too? Down beat was PM drive, speak easy was an drive? Are they switched?
ReplyDeleteDownbeat moved to AM with Danny & Sirois, KT stayed in AM. Speakeasy moved to PM with Cavanaugh & Julie, Rhyner stayed in PM. So two moves and two shake-ups.
ReplyDeleteI would think lineup after Jan 1 would be:
ReplyDelete6-10am: Downbeat
10a-12p: B&S
12-3p: Speakeasy
3-7p: Hangzone
A home run would be to make a hard push at WiP to replace Speakeasy at 12-3p and reshuffle hosts a bit. Maybe even bump out B&S for WiP. Not sure what B&S investment in station, but the weakest of all shows.
In House: You might be correct but so what if they made a mistake? They are taking a gamble and it might not pay off. That is life. I certainly don't begrudge them betting on themselves even if turns out to be suboptimal. The more I think about it the more I think we are collectively selfish in that we don't want anything to change our little ticket world so when the boys jumped we collectively take some offense to the fact our radio world was somewhat rocked.
ReplyDeleteThey didn’t make a mistake. It’s all BS.
DeleteIf you quit your job to open a restaurant, you at least give some thought to opening a restaurant before you quit your job. If you quit your job to go to law school, you take the LSAT & apply to law school & get accepted before you quit your job. At least, that’s what non-morons do; that’s what adults do. Dan and Jake will have you believe they quit 6 figure jobs with no F’ing plan.
That is not what non-idiots with lawyers do.
Nine new dumb zone members today. I'm assuming no one has dropped out -- if anyone has, that number is net.
ReplyDeleteMy sense is that Dan's statements to WFAA are litigation-oriented, and disingenuous if not untrue. His last sentence, "We clearly don't have a plan here," rings like he's hoping no one will look into footsie with iHeart.
ReplyDeleteIt beggars belief to think that these guys blew off the Ticket income with no plan other than the podcast, a podcast which was going to be in legal peril almost immediately.
No. Like Your Plainsman, they have one eye on the "right to match" clause that to date has been slumbering peacefully in their contracts, but which will spring to life once they sign on with The Freak or any other station within a short period of time after the expiration of their noncompetes, whenever that may be.
Dan's WFAA statements feel like an attempted misdirection play to me, and not a very persuasive one. These guys just weren't that manana about their futures.
I tend to agree. The right to match is shocking to me. Knowing it is in the contract, this all seems pretty clear now. Come up with a set of demands that Cumulus would never match & go over later to the fan/freak.
DeleteI don’t care if people sign up for the Patreon or not or listen to the freak or the fan or the ticket. I do find the BS being tossed about insulting.
The more I have read and heard the more I really think they are trying to be the guys that took down the no-compete clause and fought for the little guy. Like they would be some kind of trailblazers. If they really were going to end up at TF I think they would have waited a little longer and kept more under the radar. Instead, they quit and then immediately turned around and poked Cumulus in the eye creating a podcast using ticket IP knowing they would come after them. That got the lawsuit filed, which was all part of a master plan. Without the lawsuit, there is no court to argue the non compete issue.
ReplyDeleteTheir representation choice seems to match this thinking. Then, the filing of the NLRB complaint as soon as they were served with the lawsuit. It just all seems to add up to me that this whole thing was a very calculated plan to fight to end non competes in court. If this is true, I really hope it doesn't come back to bite them in the rear if they lose and have to pay a decent amount of restitution. I suppose we will know if/when they come out of remediation with a settlement or not.
I think this is very likely the scenario. To quote Jake from the Mom Game podcast talking about his end game for leaving -
Delete“I’m gonna be able to lay down at night and say, all these people are doing great and that was in no small part because of some decisions that I made.”
He’s in his messiah mode.
This comment has been removed by a blog administrator.
ReplyDeleteWow, caps and name calling, very convincing. You certainly must have everything figured out!
ReplyDeleteIn-House (9:31)
ReplyDeleteI tend to agree with you. As with any negotiation that relates to an entity or personality in the media, there are usually 2 different narratives...the one behind closed doors while negotiating, and the one that is strategically released through media. After D&J left, TT hosts all pretty much said that D&J promised them that they would not compete against TT at another radio station. The day that D&J announce that they are joining another radio station, that smoke you see toward downtown Dallas are the multiple friendship, personal bridges being burnt by D&J.
What I’ve been thinking/saying too. The original RW news included Dan and Jake, and what do ya know? They didn’t resign their contracts. Rhyner says he wasn’t mean to be with the freak for long, guess someone will have to fill his shoes. And with cumulus being so greedy and evil, it leaves the dumb zone with no choice but to move on over to the freak.
ReplyDeleteIs anyone planning on attending the hearing on Monday?
ReplyDeleteAll you legal eagles and le wannabes take a listen to this. Mr. Kingston has spoken:
ReplyDeletehttps://pca.st/episode/60017578-9a08-4aab-8482-1d5120532fc8
Thank you, P 4 Wings. If anyone could give us a timely summary, that would be great.
ReplyDeleteH/T jgwagg4444 on reddit for these bullet points. Mind you they are jgwagg4444's points, so YMMV, and therefore I'd listen for your own take away. The relevant stuff is only about 6 mins long, so not a heavy time investment.
ReplyDelete"1.Kingston has been advising ticket personalities on employment issues for 2-3 years. This could be the reason why D&J were strategic in approaching Cat about contract end dates lining up, or gathering info on board op comp and non competes.
2.While he is the lawyer who is leading this defense; he is merely the front man for some substantial legal resources that D&J have in various areas of the law. IP, etc.
3.They have crafted a whole National Labor Relations Board strategy with Bruenig - to position this as a noncompete test case that he said was about to receive some substantial national media publicity." (jgwagg4444, reddit/ticket, 8/16/23)
They may get some traction with the leftward-leaning NLRB; as I said early on when they filed their response, for success they would have to revolutionize employer-employee relations hitherto controlled solely by state law -- noncompetes are legal and, within limits, enforceable -- and it looks like that's exactly what they are hoping to do. Whether they'll get any with the court remains to be seen, but I doubt it.
ReplyDeleteThis strategy is an admission that the law as it exists is not on their side. If I were Cumulus, I'd take a tape of that to the hearing and play it for the court. Judges do not like to be end-run.
I would think that cooler heads at the NLRB would see this as a very garden-variety dispute between an employer and its former employees, and not terribly sympathetic former employees at that. The NLRB could latch it onto it as a test case, sure -- but they'd have to ignore everything else SD+J are claiming in defense ("we're not competing"; "everybody else gets to do it") to make these guys out to be working-class heroes and not just guys who didn't feel like keeping their promises and are thrashing around.
In case any of you legal technicians are wondering: I am pretty certain that:
(1) A federal district court may not enjoin an NLRB unfair labor practice proceeding.
(2) The NLRB has exclusive jurisdiction of unfair labor practice claims, so Cumulus cannot compel SD+J to bring it as a compulsory counterclaim in the Dallas lawsuit.
Talked to a guy that has negotiated deals for some radio personalities in DFW, although none of the ticket guys. He doubts the NLRB end-run will work. Described it as a hail mary. As you said plainsman, it would need to upset decades of precedent.
ReplyDeleteAnd he described D&J as particularly unsuited for a test case. That the non-competes that the NLRB is looking to get rid of are for 'normal' jobs where the non-compete is used to depress the ability to switch jobs. The example he used (not real life) was a waiter at a high-end steakhouse. That if they agree to get trained in the "Bob's" customer service method, they agree not to go work at Pappa's, Al's, Del Frisco's, etc for 6 months. In reality there's nothing special about that training, it's just an excuse to try and stop good waiters from going to a competitor and having customers follow them.
The other example he used, which is real life, as I've also heard of this, is bands- that venues regularly put in contracts that stops a band from playing another show within "X" number of miles and "X" number of days/weeks/months. So if I'm Choctaw paying Travis tritt to play on August 16th, I don't want him booking a gig at Dickie's for August 17th and undercutting my ticket sales. He said there's a difference between protecting legitimate business interests and just depressing job options for average workers.
As for Dan and Jake, he said that jobs like in the media would in his opinion still be covered by non-competes. they're high profile, in a specialized field, that part of the draw is the personality, etc.
That’s just like his opinion, man.
DeleteDan and Jake will soon learn two very hard lessons:
ReplyDelete1. That they are being used by their legal team as a test balloon/publicity-future income generator; that Kingston & Co. will discard them the moment this ends, regardless of the outcome, but especially if it all begins to look like a loser. And that they took counsel from those who didn't have their (DnJ's) best interest at heart, but rather, their own.
2. That once the fervor goes kaput (and the 1st phase already has petered out, we'll see if the next phase-per Kingston-begins to ramp things up again), and all of this is 5 cycles gone by, they will find out like so many others that it's the entirety of the parts that make the whole and it's the whole that in turn allows the parts to flourish. Please see Mike Rhyner and Gang.
I say neither 1 nor 2 with pleasure. Quite the opposite, in fact. I am a fan of Dan and Jake. But I also believe that Richie Whitt's intel was/is true and that they will be at The Freak as soon as their non-competes expire; that that has been the plan all along; and that they've convinced themselves while allowing themselves to be convinced that they are activists trying to better the world for the common man. Doing so makes their pact with Rhyner a little over a year ago an easier circle to square in their heads. They didn't want to look like the bad guys. They wanted it both ways and this was the avenue. Make it out to be Cumulus's fault. They were forced to go to The Freak because Cumulus wouldn't allow the podcast. Etc. Others have stated the plot far more eloquently and in better detail. Humans are weird and will do weird, irrational things more often than not.
BTW, tune into The Speakeasy sometime. If that's not a placeholder, then nothing is.
I understand the theory behind a test case (I’m a lawyer) - but if there’s any industry where it is easy to make the case that a non-compete is valid/important, it’s one where the employee’s name/image/likeness are central to their value to the organization. Feels like a pretty poor set of facts for a test case to me.
ReplyDeleteDan mentioned on today's DZ release that 6.90 is the minimum but many have pledged more per month and mentioned some people have donated 10 dollars a month. If you conservatively use 7 dollars per person x 4415 you get a total of over 370,000 dollars per year of current commitment. Not bad to hold them over until they "figure things out"
ReplyDelete@The Thermostat
ReplyDeleteHave you ever met/know Phillip Kingston? I have. I have for over a decade dealing with him and his ideas for our shared neighborhood. Poor sets of facts bother him not even one hair off a rat's ass.
Profound stuff, there, Morondog.
ReplyDeleteMy god I hate Heritage Auction day on the Musers. I understand they probably get paid nicely to show up and sponsor this place but Heritage hijacks the show completely. Punch outis maximus
ReplyDeleteMaybe I missed mention of it, but D&J filed an amended response to the TRO motion that is significantly cleaned up visually and also seems to have edited out some of the snark present in the original response. Good move.
ReplyDeleteDies it address that Jake’s contract specifically forbids him from podcasting or streaming for 6 months? And that despite some of the shows being behind a paywall, they have at least one show a week that is violating the contract he signed? If they haven’t cleaned up those 2 glaring weaknesses in their case, they’re going to have issues on Monday.
DeleteC
The amount of arrogant lawyering going on here has reached a critical mass.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteLol, “I just see a bunch of lawyers killing it”
ReplyDeleteI’ve always thought I was good at “reading the room”, but it’s harder on the WWW, so here’s an idea to help everybody read the room AND boost the Plainsman's comments count.
ReplyDeletePlease post a short summary of what you think will happen on Monday and why. I’ll go first, next…
C
I think Cumulus gets their TRO and Dan and Jake are stopped from further infringement pending trial. Possibility that just Jake is covered since his contract is much clearer than Dans as to what is competition. Judge ignores the speculative NLRB Hail Mary as it would overrule so much precedent.
ReplyDeleteC
@C minus: I might have agreed with you had the judge not scheduled mediation for the next day. It's hard to see her giving Cumulus its TRO on the noncompete and then asking SD+J to mediate with a gun at their head.
ReplyDeleteI'm still of the view that she will (1) give the parties some very strong guidance as to what she is thinking, and (2) take the matter under advisement (i.e., make no ruling on the merits), and (3) setting the matter for a further status hearing at an early date following mediation.
Ok she holds her TRO for a day pending mediation. Which Cumulus, who has Jake dead to rights on violating his contract, has little interest in meaningfully participating in. So they go to mediation on whether Dan and Jake can use THZ or TDZ in 6 months when their non compete expires. But there’s just too much of this, from basic IP and work for hire rules, to non competes that a ruling against Cumulus would have nationwide effects. I don’t think this judge wants to make a statement, just to get overturned at the 5th COA. She’ll take the safer route and give them the TRO. Because Jake’s contract is a killer.
DeleteC
I wonder if the lawsuit has slowed Dumb Zone subscriptions. They're at 4,421 this morning, so around 20 per day, which is a slowdown from earlier -- inevitable, of course -- but frankly isn't terrible for a show that is being threatened with death in the lawsuit.
ReplyDeleteI haven't listened to it. Does it sound pretty much like The Hang Zone? I don't mean its structure, I mean its general sound and feel. My view of the former Hang Zone was that it was a good listen, but overbogged too frequently by Dan, although there was less bogging after Jake signed on. How about now?
@memorex, you are right with point #1, and it is going to be a long and bumpy road to get there. I am not 100% convinced that D+J attorneys are always acting in their best interest. I could even argue that they were given deliberately bad advice in the beginning because breaking all non competes is the goal, rather than securing the best individual outcome for D+J.
ReplyDeleteInstead of them creating a podcast that is clearly different, they went with the too cute approach of minimal cosmetic changes and talking about releasing recordings of the negotiations. They were forcing Cumulus' hand.
This is not to say that D+J are innocent pawns. Based on a lot of the stuff I have heard Jake talk about, he may relish the opportunity to be a crusader, but we are still having fun, no? Will they still have the stomach for it if it drags on?
When does the steel toed boot drop?
ReplyDeleteI go out on a limb: I think Judge Scholer will deny the request for a preliminary injunction. Or in the alternative she will do what C- said, i.e. take it under advisement pending the mediation. I expect she will also communicate to the parties in no uncertain terms what she expects to see happen at the mediation and how she sees the case shaking out if they do not settle.
ReplyDeleteI think some folks are making too much out of the inclusion of "podcast" in Jake's agreement. Cumulus must still convince the court that prohibiting TDZ is a reasonable restraint of trade.
See, I think TDZ needs to explain to the judge how doing this thing Jake agreed not to do isn’t a violation of his contract. It’s not restraint of trade, it’s enforcing a contractual obligation. Jake took money and agreed not to podcast, stream, etc for 6 months.
ReplyDeleteC
@OU812 Right there with you. It's terrrrrrrible.
ReplyDeleteTexas Business and Commerce Code 15.05(a): “Every contract, combination, or conspiracy in restraint of trade or commerce is unlawful.”
ReplyDeleteThat’s the starting premise Cumulus must overcome, by proving the employment agreements fall under the exception set forth in 15.50 of the Code.
Their agreements are out there to be found. Section 7, agreement not to compete for 6 months in business area. Paragraph 1.2, business area is Neilsen defined DFW market. To meet 15.50 it needs to be limited in time, area and scope of activity.
DeleteTell me why you think no podcasts for 6 months in DFW doesn’t meet the criteria.
C
Oh I think Cumulus could very well end up winning on the merits, I just don’t think it’s as much of a slam dunk as people seem to think.
DeleteThe preliminary injunction is a different story. Why can’t Cumulus be adequately compensated for its injuries with money? If Jake is causing irreparable harm with a podcast, why is IJB just fine and going strong for over a decade now? I’ve been an IJB listener since podcast 1 and I have often chosen to listen to the latest IJB episode instead of the KTCK stream.
Some and I do mean SOME, not all of the DnJ fanboys crack me up. They love DnJ for their honesty, pull no punches tell it like it is the way that it is approach. How there's no sacred cows on their watch. That the truth leads you to where it does, no matter how much you might not like it. And yet. Yet. They cannot stand, cannot abide honest, open, thoughtful, dispassionate analysis (by some who are actualy experts) of this situation, as it hits too close to home, or so it seems.
ReplyDeleteLol it up, fanboys.
I will be very interested to see Cumulus' reply brief today.
ReplyDelete> I am a fan of Dan and Jake. But I also believe that Richie Whitt's intel was/is true and that they will be at The Freak as soon as their non-competes expire; that that has been the plan all along; and that they've convinced themselves while allowing themselves to be convinced that they are activists trying to better the world for the common man. Doing so makes their pact with Rhyner a little over a year ago an easier circle to square in their heads. They didn't want to look like the bad guys. They wanted it both ways and this was the avenue. Make it out to be Cumulus's fault. They were forced to go to The Freak because Cumulus wouldn't allow the podcast. Etc. Others have stated the plot far more eloquently and in better detail. Humans are weird and will do weird, irrational things more often than not.
ReplyDeleteif they had an agreement to move over, even in principle, why would they do anything that would extend their noncompete.
at this point the noncompete would have started about 7/1. they would already be 6 weeks into a 6 month non compete set to run out on about 12/1 and be ready to jump into things at at The Freak no later than 1/1.
at this point isn't the noncompete basically on hold until litigation is finished, then the 6 month timeframe starts? so already missing the first ratings book of the year next year.
D&J are planning on calling the Eatzi's CEO to testify, although he and Dan will have to testify remotely if permitted.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeletePman, I’ve listened to just the youtube episodes and imo they don’t sound ticket-y at all. Dan still bogs and says occasional inappropriate things while Jake plays the straight man, but without drops or exchanging blows with Blake it sounds more like a meandering phone conversation between friends. Also the audio quality has been poor but not near as bad as training camp which has gotten so bad it’s really testing the limits of what P1s are expected to fight through. Didn’t help they did zero bits, not even low hanging fruit like wireless or overcusser but that’s another topic.
ReplyDelete"is a podcast a competitor" - well, if I'm Cumulus, I start with the uncountable number of social media posts and (I'd assume) endless emails from "P1's" promising to "never, ever listen to TT ever again" and "will now pay money to dan and Jake" - that pretty much makes their case.
ReplyDeleteHi all, I'm just a simple unfrozen caveman family lawyer with 2 breach of contract cases in my history, but I like to think I'm fairly good at reading statutes and case law and applying principles to facts at hand, and I've noticed a few things as I go through all the comments on here that if like to bring to everybody's attention.
ReplyDeleteFirst, I see a lot of "Cumulus has Jake dead to rights on the because his contract explicitly mentions podcasting", and if trend to age, with one (rather large) caveat. Jake was doing IJB before the agreement was signed, and continued to release me episodes after the agreement was signed. It appears, based on the facts as we know them, Cumulus never sent him and TC a cease and desist letter, or give their approval. (We can infer that there was no approval from Cumulus because it wasn't mentioned in the agreement, and then in the verified complaint, Dan Bennett said, under penalty of perjury, that the first time he became aware of DnJ wanting to do outside podcasts was some time after December) This is important, because you don't get to sleep on your rights until it's convenient for you, so based on facts as we know them now, Cumulus CANNOT enforce the podcasting part of Jake's agreement (this is called promissory estoppel). This is a rather large (potentially fatal) issue that Cumulus has in both the TRO/PI, and ultimately on the merits.
Now, on to the second thing I've noticed, I do believe a lot of people may be misreading the NLRA, Garmon, and Glacier Northwest (this one was just from June, so it's pretty new, but the court, through Amy Coney Barrett, reaffirmed Garmon by a count of 8-1). Now, Garmon preemption (which was, again, unambiguously reaffirmed as good law on June 1 by the Supreme Court) has 3 things you need to show: 1) an allegation of conduct that is arguably covered under section 7 or 8 of the NLRA, 2) that the interpretation being presented has not been authoritatively been rejected by the Board or courts, and 3) show evidence that the Board would reasonably uphold a claim on that interpretation. Now, applying those standards to the facts as we know them, DnJ have clearly alleged conduct that is covered under section 7 and 8, so first hurdle is met. Second, as has been pointed out over and over again, this is a novel claim, so by it's very nature, it has not "authoritatively been rejected" by the Board or a court. Now, the third part is trickier, or it would be if the General Counsel of the NLRB didn't send a letter to all regional directors in May saying that non-compete clauses presumptively violate section 7 and 8 of the NLRA. So, they can show a reasonable likelihood of prevailing with the Board. So, by reading the statute and case law, it appears that as soon as DnJ ask for it (likely in their answer), the judge is required to stay the proceedings until the NLRB makes a decision.
Now, again, I don't practice employment/labor law, but I think I'm fairly not terrible at analysis, and I hadn't seen anything in the comments discussing these two points. And, if anybody here more steeped in labor law can point out my errors and direct me the right way, here's a preemptive mea culpa.
Familylawguy, your first point begs the question. Does IJB involve the same or essentially the same job duties as a weekday Ticket show? Unless you try to say all talking is the same, I think that's a more difficult hurdle to overcome than your quick acceptance of estoppel (I don't really see how it's estoppel versus waiver, by the way) would suggest.
ReplyDeleteHmm, I see it as more of a threshold issue for Cumulus, as the agreement Jake signed said Company Business is "commercial radio stations and other audio platforms, including podcasting." So, based on a plain reading of Jake's agreement, IJB would be just as violative of the agreement as TDZ, so the burden is on Cumulus to show why one podcast violated the agreement and the other one does. I would say Jake could use estoppel or waiver, but I think estoppel is the better argument
ReplyDeleteBut "Company Business" is not what is prohibited. The non-compete section says that the employee "shall not, directly or indirectly, engage in any activities the same or essentially the same as Employee's Job Duties for any Competing Business . . . ." The focus is on whether the podcast is the same or essentially the same as "Job Duties" (which has a rather lengthy definition). I think just saying "a podcast is a podcast" misses the nuance required by the contractual language.
ReplyDeleteBut the "job duties" is a generic list of things that are required of any radio/podcast host. There are no sports radio specific job duties in the rather long list, and "competing business" is "any entity carrying on a business that is the same or essentially the same as Company Business", so, again, a plain reading of the agreement shows that Jake was violating the agreement by continuing to host IJB while employed by Cumulus.
ReplyDeleteIf you have to keep addressing counterarguments, perhaps the language isn't as plain as you suggest.
ReplyDeleteYou are still begging the question by assuming that IJB is a Competing Business. If you're taking the position that everything in the talking medium is the same or essentially the same, I think that's a loser of an argument. The point is that TDZ follows the same format as THZ and falls in the same sports/guy talk product that the Ticket is selling. I'm far from a P1 of IJB, but what I've heard of it, those topics are included on occasion, but it's far more freewheeling and political. I would certainly argue that it's not the same.
I appreciate @familylawguy's description of Garmon preemption. Thanks.
ReplyDeleteI note that SD+J have raised it in their response.
That response is much more sophisticated than their original response, and much better looking. There seems to be another lawyer involved, a Frank Cawley. I've been looking for some info on him, not finding much. Nothing, in fact.
Will this court apply Garmon pre-emption to stay, or dismiss, Cumulus's noncompete claim? As I and others have said, to take the position that the NLRA "arguably" covers noncompetes in the nature of the noncompete in this case (i.e., unique service agreements) would upend decades of state law and hugely expand federal regulation of non-union contracts. The NLRB general counsel thinks it should, so SD+J are not without arguments here. My personal view is that it is not "arguable" that the noncompetes AT ISSUE IN THIS CASE are an unfair labor practice covered by the NLRA and I'd dismiss this argument out of hand.
But the ball, it do crazy things sometimes.
The back-and-forth we see in these comments is exactly why lawsuits are unpredictable. Some of the legal analysis I have seen in these comments is wrong to the point of irrelevance, but one can't correct everything. Some of it is relevant and mirrors arguments that both parties have made in this case. The court is going to make one side or the other look wrong, but that doesn't mean the arguments were terrible, ignorant, anti-contractual, etc.
And I'll say it one more time, and probably some more times after this: Cumulus finds itself in this briar patch largely -- not entirely -- because of its strategic errors (mainly delays) on the front end of this case. If it had roared in after the first podcast -- and, I would argue, roared in in state rather than federal court -- Cumulus might have secured some quick relief and put the lads back on their heels. But they dithered and filed sloppy pleadings and now it's facing a sophisticated, if radical, defense it might have avoided in the short run (this defense would have emerged eventually, but (perhaps) not until Cumulus had secured a preliminary victory).
ReplyDeleteThis is all hypothetical, of course -- Cumulus might not have been able to secure an emergency ex parte injunction under any circumstances. But the course of events ensured that the lads had time to file not one, but two responses and get their NLRB complaint on file, and now the federal-state battle is joined.
I think I may not have been as clear earlier, so I'll raise my estoppel/waiver question as a hypothetical: Let's say that on July 20, instead of recording and releasing TDZ, DnJ instead were announced as the new morning show on 99.5 the wolf. I'm fairly confident that we would all see that as a violation of the non-compete (commercial radio station within the broadcast area).
ReplyDeleteNow, if the format of the radio station doesn't matter, why would the format of a podcast?
It’s not the “format,” it’s what D&J are doing. If they are hosting a show that is the same or substantially the same, it’s a violation. You seem to be reluctant to come out and clearly take the position that speaking into a microphone and transmitting that speech in any manner is a per se violation, but that’s certainly the implication of your argument.
ReplyDeleteI'm not reluctant at all, as that's exactly what I'm saying the agreement purports to say, and the fact that IJB existed both before and after the agreement was signed without any action by Cumulus to stop it is fatal to the Cumulus claims.
Deleteadditionally - is it not the combination of both "no podcasting" tied to the fact they're doing it with each other - where IJB w/ someone unattached to the station? There are clauses in their deals about not soliciting co-workers. my guess is buried in there - along w/ the aforementioned documentable stack of listeners telling the Ticket they're suddenly done with the station.
ReplyDeleteLooks like Adam Romo of Eatzi’s will be appearing virtually at the hearing and apparently he is there to clarify something misrepresented in the case.
ReplyDeleteSource: https://www.courtlistener.com/docket/67666677/24/susquehanna-radio-llc-v-kemp/
Non-lawyer, simple man question..Can IJB just be considered grandfathered in because it was before Kemp signed a host contract? Therefore not part of the non-compete?
ReplyDeleteTerrible answer for you: it could or it could not. Depends on what the agreement says. The best argument Jake has re: IJB is that IJB is evidence of what the contract means would be competitive or not because he did it before & after his contract without incident. That does not necessarily mean that any podcast with any participants means the same thing.
DeleteI have a question for these legal folks in here, because I’m not one of them.
ReplyDeleteDoes Cumulus actually see podcasts as competition?
If so, why do they accept advertising dollars from these “competitors” to run ad spots?
We’ve all heard the awful “Titus & Tate” podcast spots on the ticket. Generic basketball talk.
“The Rich Eisen Show” still runs spots (I think, I tend to fast forward a lot these days).
Both of these are audio mediums, clearly targeting males 25-54.
The ticket would never run ads for an iHeart station, that’s a competitor.
So by taking these dollars, are they admitting that a sports talk podcast doesn’t directly compete with their terrestrial radio product?
On Spotify The Rich Eisen show is part of the Cumulus Podcast Network.
ReplyDeleteThank you for doing the 5 second research I was too dumb to do. Oops.
DeleteI do think Titus and Tate were Fox. Looks like the stopped podcasting earlier this year.
8/17 episode of the Dumb Zone just dropped. Co-hosts today are TC and one of his counsel of record, Matt Bruenig. Haven't listened yet, but seems pretty reckless.
ReplyDeleteI’m not a lawyer so maybe I’m just wrong but the IJB thing doesn’t mean much to me. Gordo has a twitch stream, after ticket prime hours, with random guests on. Now if the musers quiet, and gordo, George, and junes made a podcast, that would be competition? Why because it’s the same hosts. 2 hosts of the same show, are now 2 hosts of the same podcast. Talking similar topics. Seems simple to me.
ReplyDeleteIf I were Dan and Jake, and wanted to stay making content, I’d just keep doing IJB with Dan as a guest occasionally. I think that would’ve given more grey area for cumulus to have a hard time with.
How about this take - This Dumb Zone podcast just isnt all that great.
ReplyDeleteJake on a podcast format = he gets it. I will dive into an IJB every now and then and the hour pretty much flows. Jake and TC alone work super well - the times I've listened with a Guest (non-radio person usually) the wheels start spinning and Jake will tend to get things back on track.
Dan - he needs a clock. Or multiple people in the convo - the times I've listened to this podcast he's pretty much Fish Outta Water. Add onto 'Radio Dan' personality he built for 20years...this is why I don't think they are long for this platform.
Or Hell maybe this is Dan's Mid-Life going on right now, guys....
@1124, I’m a patreon and I’m enjoying the pods thus far. I agree with you that Dan is missing that larger group to contribute and have chime in on the show (terrestrial or pod). I miss that part of D&J as well. It’s not yet a nonstarter for me to unsub though.
ReplyDeleteBeen telling y'all how this turns out for over a month now:
ReplyDeleteDan's working am or pm drive in a 3rd tier market in a part of the country he doesn't want to be in. Jake's doing pods as his beer league softball team, working in an entirely different industry all together.
It's called the way it is.
I keep up with filings on a site that mirrors the official PACER filings.
ReplyDelete(https://www.courtlistener.com/docket/67666677/susquehanna-radio-llc-v-kemp/)
Cumulus's reply was due today (the 17th), which, in these days of electronic filing, generally means "midnight on the due date," or it did when I was working that beat. That site does not report any reply filing by Cumulus.
However, there may be a lag time between the official filing and the report I get on this third-party site. I was hoping to summarize Cumulus's response on the NLRB preemption argument.
Can't stay up all night. I'll check in tomorrow morning. Anyone want to report in the meantime, please do.
Just checked as of 5:37 am 8/18 no subsequent filings by Susquehanna since August 4th.
ReplyDeleteWell Fxxx me. Good thing I am not an attorney. I read the Docket backwards and assumed the top was the latest. I stand and sit corrected. They did file yesterday.
ReplyDeleteThe reply is interesting, but to me it highlighted how much beefier the original application should have been.
ReplyDeletewow - Cumulus publicly admitting they've lost "multiple advertisers" wasn't something I thought they'd be so quickly willing to do. including the claim Dan has talked to not just one (Adam Romo) advertiser is also a new twist.
ReplyDeletebut I'm mostly interested in others opinions of Cumulus' argument that TDZ is a competitor because of their appearances in "over 2000 podcasts" owned by Cumulus. ie: all of those shows/segements that were converted into podcasts that we promoted and financially benefitted from is exactly what makes their new venture - which is a business they now own and intend to access our listeners from - is the argument for the TRO.
I also laughed each time they pulled damning quotes from the various appearances of the guys on there, and other, podcasts. “I might bag on the company a little bit now that I’ve been told that that’s possibly okay.” - Jake.
Radio Knob, I agree that the multiple advertisers lost line was surprising, but it would have been a lot more impactful as evidence. I wonder if they're going to call anyone at the hearing.
ReplyDeleteI have been wondering when Cumulus would bring up the fact that Jake and Bob did an NFL draft podcast that was never available over the air.
It is a bit surprising that they relegated waiver to a footnote, but then again D&J devoted at most a paragraph or two to that argument, so maybe the strategy is to not give it additional prominence.
Boot.
ReplyDeleteDropped.
Well what is the boot
ReplyDeleteI don't know about your prediction p-man, Cumulus' reply is pretty stout knocking down SD+J's arguments point by point and backing it up with case law. In contrast to with SD+J's arguments that were pretty weak.
ReplyDeleteMeanwhile on Reddit, many seem to feel “uncomfortable” listening to the ticket these days. My goodness. You’d think the musers were propping up Alex Jones or something.
ReplyDeletePoint on the doll where the ticket hurt you
They're akin to vegans who wear leather, eco warriors who use computers, and conservatives who espouse the importance of family while having affairs replete with burner phones and alt-Lyft accounts.
ReplyDeleteBut that's reddit for you. Ever hysterical, always screaming, and the smartest people in the room.
I'm wondering how long it's going to take for them to turn on Boomer Dan? Over-Under Halloween. I'll take the under.
The reply has much better legal arguments. Someone finally did some legal work. While I still think they win in the long run, I don't think they have provided any actual evidence of harm to get the TRO/PI. Again, they comment they lost advertisers but it is not actually any evidence in the form of affidavits or even a sworn pleading this time. In my experience, a TRO/PI is an high standard that requires actual evidence to get a ruling before a full trial on the merits. I'm not sure I would grant something like this based solely on sworn pleadings. Of course, Cumulus might be waiting for the hearing to put on the live testimony, but I think it would need to be more than just DB testifying to show harm that requires a TRO/PI now.
ReplyDeleteOne of the advertisers is clearly Alamo Drafhouse. The Freak is doing a double remote and movie there today. They havent done any Cinema with the Snake since D+J left.
T-t-t-t-old ya. Steel. Toed. Boot. Right now, it's merely hovering above. Wait until Monday.
ReplyDelete"Defendants could easily take measures to geo-restrict access to The Dumb Zone from within the DFW area" is one of the dumbest things I've ever read
ReplyDeletedabooty, why do you say that? I thought it was an interesting argument that could be harmful to D&J's assertion that the NC is overly broad.
ReplyDeleteHow is this not overly broad?
ReplyDelete"Internet/streamed programs/programming and other current and future audio platforms.”
So any current or *possible future* audio platforms?
My understanding of phrases like that is to cover new technology or new platforms. Periscope was all the rage like 5 years ago, and then just disappeared suddenly. So the software or platform name doesn’t really matter, if it’s periscope, twitch, etc, it’s the concept, not the medium.
DeleteC
No podcast platform lets you click a few buttons and geo-restrict who can access it by metropolitan area. You could possibly restrict by country, if anything.
ReplyDeleteIn an insane world I suppose you could create your own podcast platform that restricts access based on IP address location. Nothing about this is easy or effective. If anything is easy it's bypassing geo-restrictions via VPN.
It all just reeks of old man yells at cloud.
I'm on the move this morning but will make two quick comments.
ReplyDelete(1) In agreement with A.C. that if Cumulus has evidence of advertising lost on account of SD+J's competition, then that evidence should have been in an affidavit or otherwise identified as evidence that will be presented at the hearing. Saying it in a brief isn't evidence. However, since this is a reply which should not contain new evidence (although they frequently do), perhaps Cumulus felt that this evidence, if it exists in swearable form, should be presented at the hearing.
(2) I've read the NLRA statutes at issue and portions of the famous general counsel memo, and I came to the same conclusion that Cumulus comes to in its brief dismissal of the lads' federal labor-law crusade. I don't think it's that technical if you ignore the case citations, so I'll cut and paste here:
"Finally, Defendants assert that Susquehanna’s claims are pre-empted by the NLRB, and therefore any preliminary injunction predicated upon those claims would disserve the public interest. Defendants’ argument is that enforcement of non-competition agreements is contrary to and disserves the public interest solely because of a memorandum (“GC 23-08”) published earlier this year by Jennifer A. Abruzzo, one of the General Counsel for the National Labor Relations Board. (Jennifer A. Abruzzo, Non-Compete Agreements that Violate the National Labor Relations Act, Memorandum GC 23-08 (May 30, 2023)). Contrary to Defendants’ argument, however, non-competition agreements have been enforced in this state since at least 1897, seeGates v. Hooper, 90 Tex. 563, 564 (1897), and Texas has codified the enforceability of non competition agreements at Section 15.50(a) of the Texas Business and Commerce Code. This well-established public policy of Texas confirms that such agreements are enforceable, and an unelected federal attorney in Washington D.C. cannot alter this policy by merely writing a memo. This is not the law and is repugnant to this Country’s federalist system. Indeed, the “Fifth Circuit and Texas courts regularly uphold restrictive covenants and grant injunctions.” Miner, Ltd. v. Anguiano, 383 F. Supp. 3d 682, 706 (W.D. Tex. 2019).
"Furthermore, pre-emption is not applicable under the Garmon doctrine, as in the 90-year history of the NLRA, no court in this county has ever ruled that non-competition agreements are “arguably subject to § 7 or § 8 of the [NLRA].” San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). Indeed, nothing about Defendants’ violation of their non-competition agreements is related in any way to even hypothetical collective bargaining activity. Ms. Abruzzo’s memo confirms that it is directed at non-competition provisions “imposed on low-wage or middle wage workers who lack access to trade secrets or other protectable interests.” (GC 23-08, 5). This does not cover Defendants who made well over six figures and received confidential information from Susquehanna, all while Susquehanna invested years of resources promoting Defendants to amass a public audience. Ms. Abruzzo further notes an exception where the former employee seeks an ownership interest in a competing business, which has happened here. (GC 23-08, n. 23.)
"Further, the Fifth Circuit has noted, Garmon preemption “does not apply to conduct that is a mere ‘peripheral concern’ of federal labor law or that touches ‘deeply rooted’ state interests.” Windfield v. Groen Div., Dover Corp., 890 F.2d 764, 767(5th Cir. 1989). As demonstrated by the lack of any case law finding violation of the NLRA for non-competition agreements and Texas’ enforcement of such agreements, the Garmon pre-emption rule is inapplicable."
*******
I find this highly persuasive. This makes the lads' labor-law argument look desperate and amateurish. I don't think Cumulus needs to worry about the lads' labor-law misdirection ploy, or the unfair labor practice filings with the NLRB, any further. Fails to launch.
Well, a pretty good counter that I had not considered until the reply is that the admittedly broad language you quoted is only applicable to a 50-mile radius around Dallas. So they could go to Houston or Des Moines, but in Dallas, where they've been cultivated and developed by Cumulus as public entertainment personalities, you need to wait 6 months before you ply the same or even similar trade. I think that's a strong argument. And if they indeed have the ability (I have no clue) to geo-restrict access to the podcast, it's even stronger.
ReplyDelete@dabooty
ReplyDeletePlease tell me you're not a lawyer. You're 17, yes?
@Auggie
ReplyDeleteYes, I'm 17. You're very old, yes?
Care to explain your argument?
Very constructive. Very helpful. Wonderful exchange.
ReplyDelete“Auggie said...
@dabooty
Please tell me you're not a lawyer. You're 17, yes?
August 18, 2023 at 11:27 AM”
Hmm, P man and a few others have been extremely interesting and informative to read regarding this whole situation. Some have been increasingly condescending and a walking talking example of why people hate lawyers.
ReplyDeleteWhat do you call a buttload of lawyers driving off a cliff?
ReplyDeleteYawn.
ReplyDeleteA good start.
Is Blake the boot?
ReplyDeleteI've heard 'em all.
ReplyDeleteWhy are scientists using lawyers instead of rats in lab experiments?
They're more numerous;
The lab workers don't become attached to them; and
There are some things that rats just won't do.
@Wut
ReplyDeleteOh, OK, dude. This coming from someone who impersonated another commenter. Rock on with your signalling self, bruh.
I’m a lawyer. My dad’s a lawyer. We don’t like lawyer jokes. The guy that killed a family friend (killed another & shot 4 others) in the Tarrant County Courthouse in 1992 kinda ruins the humor. I wasn’t a lawyer then (just a runner) but I was in the courthouse when it happened.
ReplyDeleteBut, hey, let’s just keep joking about killing every member of an entire profession.
Using a force field from 1992 to ticket fans…..really? Know your audience chief
DeleteFunny line by Line 4 Guy during WTDS.
ReplyDeleteCorby: "What about you L4G? Where were you yesterday."
L4G: "Let's not get into it. There will be a hearing on Monday."
Also, did anyone see Davey advertisting a podcast he's going over the weekend? High T with Old Waver.
I’d reply with a flippant, “LOL”, but it would probably be deleted. Bad things have happened to the butt of most jokes somewhere along the line, especially when the butt of the joke is a general group of people. Are Aggie jokes off limit because the bonfire tragedy? Are Dumb Blonde jokes made taboo because of sexual assaults? What generalizations can we laugh about?
ReplyDeleteAlso, I’m too moronic to reply to a specific post. One too many napkins. One out of two ain’t bad though, I suppose.
DeleteDavey has being doing High T with Old Waver for quite awhile. With Toby from Deep Blue Something.
ReplyDeleteAnd that reminds me of-part if the issue- what Cumulus views as competitive and what isn’t. If there’s an email from Catlin giving Dave permission to do a music based podcast, it just points out that they can delineate a podcast that imitates the Ticket in sum and substance, and ones that don’t- IJB, High T with Dave, the Mom game when Julie was there, etc.
ReplyDeletec
It's your friendly neighborhood simple unfrozen caveman family lawyer, and I've read the reply to the response, as well as re-read the relevant NLRA sections and relevant case law (Garmon, and then the most recent SCOTUS case that covers it, Glacier Northwest), and I'm trying to square a few circles here. Now, in the NLRA, section 7 states "Employees shall have the right to...bargain collectively...and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection". Section 8, in relevant part, says "It shall be an unfair labor practice or an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [section 157 of this title]". Section 10 of the NLRA gives the NLRB the power to "prevent any person from engaging in any unfair labor practice affecting commerce." So, if you're alleging a violation of Section 7 or 8 of the NLRA, the NLRB has the power to hear your case.
ReplyDeleteSo, as a foundational issue, DnJ have both made sworn statements that they (along with other hosts) approached management in re their collective desire to bargain collectively (very much covered under section 7), and in response, they were told that they could not discuss salary or compensation with other hosts. So, as a foundational issue, DnJ have pled facts enough to initiate the complaint process with the NLRB under the NLRA, and specifically under Sections 7 and 8. They filed these complaints on July 27 (7 days before Cumulus filed suit in N.D.Tex).
Second, on May 30, 2023, the NLRB General Counsel issued a letter directing regional directors to submit to the office of the General Counsel "cases involving non-compete provisions that are arguably unlawful under the analysis summarized herein, as well as arguably meritorious special circumstances defenses."
But, what happens when a state law conflicts with a federal law? Constitution says federal law trumps state law. Under the NLRA, Congress has given the NLRB the power to determine federal law. In 1959, the Supreme Court laid out the procedure when a state law conflicts with the NLRA (San Diego Building Trades Council v. Garmon). The Supreme Court said that, "when an argument is arguably subject to Section 7 or 8 of the NLRA, the States as well as the general courts must defer to the exclusive competence of the NLRB". So, as the Supreme Court in Glacier Northwest, Inc. v. Teamsters (opinion issued June 2, 2023), the process to determine if Garmon preemption occurs is a 2 part test. The party asserting preemption must 1) "advance an interpretation of the NLRA that is not plainly contrary to its language and that has not been 'authoritatively rejected ' by the courts or the Board", and 2) "put forth enough evidence to enable the court to find that the Board reasonably could uphold a claim based on such an interpretation".
Now, here, DnJ have advanced an argument that isn't plainly contrary to the language of the NLRA, and, while no court has endorsed their argument, it appears that no court has rejected the argument either. So it appears that they have made it past the first hurdle. The second hurdle is a bit more of a lift for them, but the letter from the NLRB GC is incredibly competent evidence that the Board may, in fact, endorse the claim.
Now, is it a novel claim? Absolutely. But that doesn't make it wrong, and if they can meet the two part test, Garmon preemption applies, and after the NLRB has their day, Cumulus can take their arguments to the 5th Circuit and have the 5th Circuit put the NLRB back on the straight and narrow.
Curios, as I missed this, but can you point to where you read, "DnJ have both made sworn statements that they (along with other hosts) approached management in re their collective desire to bargain collectively"? I recall them stating they'd seen the email Cumulus sent support staff about signing NC's and being told they can't discuss salary stuff - but not that a group of on-air/support staff formally requested to bargain collectively.
ReplyDeleteIn the response and declarations, they said that they approached DB with Corby and Dan regarding collective bargaining, and DB said to not talk about contracts or pay with other employees
DeleteNot discussing salaries and contracts is Tenet #1 in the corporate world for helping keep pay as low as possible. Break that rule as often as you can.
DeleteAre you referring to TDZ's response Sec 9-12? Because I don't see Corby's name, and the instruction to cease "discussing compensation or contract terms" came after the pair of them attempted to line up the expirations of their contracts - not after approaching DV with Corby - again, unless I'm missing something.
DeletePage 58 of 77, Ex. A, third full paragraph (Dan's declaration), and page 62 of 77, Ex. B, third full paragraph. They both say that they, along with Bob and Corby, had a meeting with Dan Bennett and Jeff Catlin where they expressed a desire to collectively bargain, and were told by management that they were prohibited from discussing their contracts with each other.
DeleteNew post and ginger. No new content.
ReplyDelete