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."
Friday, August 11, 2023
Hearing on Cumulus Request for Relief August 21; Followed by Mediation on August 22; SD+J Unfair Labor Practice Charge Against Cumulus -- Lawsuit Thread Continues
Cumulus might have caught one break. The lads filed their response thinking there was a going to be a quick hearing, or perhaps a decision without a hearing, so they got their response on file yesterday (August 10) before the court ruled that they could have filed it shortly before the hearing, with Cumulus only having two days to respond.
Now, Cumulus has a week to put together a response, pending any further orders from the court.
I don't believe I've seen any predictions/opinions about SD+J dodging the restraining order since the hearing was announced & SD+J signaled their strategy. What is the likelihood they have to shut down their podcast?
I'd specifically like to hear from Colorado P1: How will the strategy of "we don't think non-competes are valid so we're doing what we want" will fly with the judge at this hearing?
I may catch some flack for this, and Dan does seem like a good guy…but if they’re trying to take care of the talent around them and what not..maybe take a look at the 300k salary Dan had going..prob one of the only dudes in a midday slot nationwide to make that much.
If Dan was making 300k (is that in writing anywhere?) the Musers are making 2 to 3 times that number and doing nothing for people like Jer. I think Dan comes across just fine considering we know he paid people out of his own pocket.
What’s Cumulus’s best case scenario here? A relatively small financial settlement and keeping them from podcasting until 2024? Ruling over all current employees through fear?
The Streisand effect seems to be fully at play here with more and more people hearing of the lawsuit.
My prediction is that Cumulus will not win the TRO/PI. They have not established any harm that I can see where it has to be shut down right now as opposed to at the end of the trial on the merits.
This isn't a prediction that D+J will ultimately win, just that injunctions have a high standard of showing current harm from D+J, I don't think Cumulus has met this burden. This would have been met with actual evidence of D+J soliciting advertisers (Cumulus alleges this but has no evidence) or D+J trying to take other employees (Blake), or if Cumulus had a patreon podcast that people were cancelling to subscribe to D+J. D+J already changed away from the House Party/Hang Zone logo so that is moot.
Unless Cumulus comes forward with some hard evidence in the response (affidavit from an advertiser that D+J are soliciting them), there is enough grey area that it's not a slam dunk that Cumulus is suffering irreparable harm if TDZ continues until the issues are decided at a trial.
Cumulus has been a little sloppy so far, but I’m going to be real surprised if they don’t have affidavit, email, voicemail or something from a client saying TDZ called me about their podcast. Stupid of them to include that charge if they don’t have something to back it up. But so much of the rest of this seems to be splitting legal hairs. Jake says no raise from producer to host. But in yesterdays affidavit said he got raise a few months later when he signed host contract. I can see Cumulus side, he got a raise when he became host, which probably became official when he signed them”host” contract. But I also get Jake’s side in he feels screwed out of 3-5 months of increased pay. And I still think Jake’s contract is going to be the issue. Poster above me doesn't think the podcast is competitive. Plenty of people here, Reddit, Facebook, etc say the same. But 4K people signed up to hear TDZ do a podcast. And Jake’s contract specifically bars him from podcasting for 6 months. If the NLRB gamble works, they may be clear. If it doesn’t, I hate to think of the amount of legal fees TDZ will be liable for. C
I would be surprised if D&J couldn’t produce an affidavit stating Dan Bennett violated federal labor laws by forbidding any discussion of salaries between cumulus employees.
Why should cumulus be protected against competition? Isn't competition what is supposed to drive our market and economy. I understand the work-for-hire concepts in all this. That is in my era of expertise. I can see the case Cumulus has for IP violations but I agree with D & J that noncompetes are BS. If any company doesn't want to compete with a former employee they have the option to pay them what said employee is asking. If not then that employer is, IMO, saying that we can get someone else to do the job for cheaper. If that is true then how is their damage to the employer, if they are wrong that should be on them.
Trade secrets, IP, and poaching clients are another matter. Though even on poaching clients I'm inclined to say that's the company's problem, not the former employees.
Two thoughts from a non law person. Could Cumulus show the hundreds/thousands of people on X, Facebook, Reddit who say they are no longer going to listen and have subscribed to the podcast as proof that it is harming them? Perhaps in a similar realm, if they showed lower ratings over the past month, could that bear any weight that they have been harmed? Maybe a combo of the two?
We have always heard Cumulus is terrible, the hosts have joked about that for years. It is just in the past year or two that we are hearing just how bad they are to the non-air talent. It seems like D&J were trying to bite off 2 big chunks at the same time with trying to get their coworkers more money as well as trying to kill the non-compete. While both seem altruistic, perhaps it was too much at once? The fact that they claim the money was good in the latest negotiations and they were going to get their coworkers more, it seems like they might have signed that one and then fought the non-compete next time.
It's interesting to me that the Musers keep getting dragged through the mud. How are they different than any other business anywhere - there is a hierarchy (I agree the tier system while maybe a joke, shouldn't have ever been a thing) where some people make more than others.How many people lurking here are VPs, directors, business owners who bring in 2x, 3x, 4x or even 10x their lowest paid employee - those same employees that are essential to them being where they are today. Unfortunately, Cumulus (not the Musers) apparently don't value board ops, ticker employees and producers as much as they value hosts in terms of salary. I don't think that should mean that hosts pay those people out of their pocket. That also makes it awkward for those positions. Host: "hey buddy, I know you don't make much money so here's some extra $$$$ to help out." While a nice gesture it puts everyone in a weird position.
I agree with Moron Dog completely. We don’t know the dynamics of the relationships between the Musers and support staff. The Musers are jerks because they don’t pay for support staff out of their own pockets? Ok. But the Musers have also had the same producer for decades. Moran was with them for decades as well. They provided steady employment and what one would have to believe to be a good working environment, given their stability in morning drive. That is a tough schedule to keep. On the other hand, Bad Radio was infamous for how difficult they were to work with. Dan would get frustrated and scream at his producer regularly. They made jokes of these epoxides later, but I don’t believe it was a pleasant working environment. Rick Arnett and Tom Gribble both alluded to this.
Furthermore, the Musers give their time and energy to multiple charitable cases. They have raised enormous sums for the Special Olympics, Senior Source, Big Brothers Big Sisters, and the Hope Supply Company, to just name a few. I can’t recall a single event or drive spearheaded by Dan and/or Jake. I think I saw posted here in MTC a few weeks ago that Bob and Dan had a charity bowling tournament years ago, but nothing since. Nothing without Bob. I mention this not to disparage D&J. They can choose to utilize their time and money however they like. Doesn’t matter to me. I mention it only to provide a different perspective on the Musers. I don’t believe them to be the cold-hearted jerks they are portrayed to be over on Reddit.
Non-D&J opinion here. Donnie, Blake and Monty are having much more fun and making a much better show with Matt gone Friday. I thought Matt would settle in better, but fuck he’s more boring than I remember….
We'd all like to be paid more. I'd like to be paid more for what I do. But the supply of what I do (self-publish books, self-publish a blog) greatly exceeds the demand at any price (asymptotically approaching zero). I am compensated accordingly (ditto).
Top-flight, pull-in-the-ratings on-air talent is hard come by. Supply is low; demand is high. It can be developed by non-air employees, but it's lightning in a bottle. Exhibit 1: The Freak. Exhibit 2: Most other radio shows everywhere in the universe.
People, especially young people, with excellent technical chops needed to run a radio station and assist with program operation, are dying to work at The Ticket. Supply greatly exceeds demand. Do I recall that some assistants work for almost nothing, run personal errands, assist with the sosh, fetch chow for Bob and Dan, for practically nothing? Do they work hard and, in an ideal world, would they be paid based on desire and energy, be paid more, some more significant percentage of what the "talent" makes? Sure. Do they "deserve" significantly more than they make, significantly more than people in similar positions make at other stations, significantly more than a large number of hopefuls would because they've become long-time pals with the talent and listeners have come to know and like them to the extent they pop on?
No. Unless they have ascended to become less fungible on-air personalities, someone who assists beyond fungible technical expertise in making the station popular and successful, in which case Cumulus will pay to keep them around.
Having displayed my Friedmanesque view of compensation, let me add this: There's a limit to what the market should be allowed to permit. Even noncompetes are regulated by statute. For example, if it is true that Cumulus has conditioned raises for grundoons making low-mid five figures on signing non-competes, that is, as someone said above, a dumb Cumulus move, gross overreaching, and might well be thrown out of court as unconscionable.
Having now commented on the awfulness (or not) of Cumulus's compensation decisionmaking, let me pre-say that I'm not going entertain a lengthy back and forth here on whether market capitalism is fair or unfair for employees. Just not gonna do it.
Wut - I completely agree, my friend. Donnie, Blake, & Monty are killing it today. A breath of fresh air in that time slot. Matt is simply too bland/boring. I love Donnie but Matt is going to kill that show.
All - the SD+J stuff went down mid- to late-July, so we will have to wait until September to see the August ratings, right? Very interested to see what those will show ...
Normathon P1: For a Temporary Injunction, it's not really about the merits of the argument on whether their non-competes are enforceable, although reasonable chance of ultimate success on the merits is one element.
It is more about whether Cumulus can show that money won't remedy their issues, in the end? If there is "no adequate remedy at law" -- i.e. money -- then a plaintiff can get a TI, but they must also show they would suffer a substantial and irreparable injury if the injunction is not granted.
I've said this was never a slam dunk and I put Cumulus's chances for success on most of what they wanted at 65%.
I should probably revise that downward not because of anything SD&J has filed, but because of what the court has done, or not done.
What the court has done, in my opinion, is related to (if not a direct result of) several Cumulus missteps:
(1) Not filing for a TRO immediately upon SD+J not complying with the cease-and-desist demand.
(2) Waiting at least ten days before filing a complaint.
(3) Filing the complaint late on a Friday, permitting two more days of "irreparable damage."
(4) Not filing a TRO application simultaneously with the TRO application and making clear that they desired it ex parte (to the contrary -- that's what it looked like it wanted).
(5) Failing to file the certification of notice with the original application.
It's dangerous to try to read a judge's mind, but it sure as heck looks like she's extremely skeptical of Cumulus's need for immediate relief. Skeptical, hell -- she's all but said they're not getting it. In addition to the original denial, she has not scheduled a quick hearing date, but one ten days hence. In addition, she has ordered mediation AFTER the TRO hearing, strongly suggesting that she does not expect to enter a judgment as a result of that hearing, which means Cumulus will continue to go without relief. I've never seen this before -- mediations are ordered to AVOID hearings on the merits to see if the parties can settle. Here, she's at least implying that she's going to hear everyone out, not rule, and wave everyone to mediation to see if things can't be worked out.
Why would she take this tack? My suggestion, which may have nothing to do with what the court is thinking, is found in the foregoing numbered points: Cumulus hasn't acted in a way that suggests it really, really needs this preliminary relief -- relief which (as others have correctly pointed out above) courts require a strong showing of need to grant.
Translation: No emergency relief for Cumulus.
Now: On the merits of the two filings: I still think Cumulus has much the better of it. I think the NLRA argument is a non-starter, and it takes up a big chunk of the lads' response. (For the same reason, I don't think the NLRB complaints will get too far, although the NLRB is highly partisan in a "progressive" way these days -- any relief at the Board level wouldn't survive appeal, but that is all a long ways down the road.) I greatly respect Colorado P1s point of view, but I think these complaints and the NLRA argument are going to look like a gimmick to the court.
The court won't care too much about what other employees at Cumulus are paid -- she'll see this as the misdirection play it is.
Several Confessors have mentioned that they don't see any damage to Cumulus. If you'll recall from my description of the application, Cumulus cites cases (and this is also my recollection as to the law) to the effect that damage is presumed from the fact of violation of the noncompete. I don't think that argument will get them too far.
Overall, the lads' response is passionate, which counts for something, but it is very weak on the law, by which I mean precedential support for their position. They do not cite authority counter to what Cumulus cites, and they do not attempt to distinguish the precedents Cumulus has featured. Judges don't like to be reversed, and in aid of that they like to have the law on their side. The lads haven't helped her out here much at all.
There are other defenses of varying strengths -- which is why it isn't a slam-dunk, and Cumulus's own delays and errors have further eroded its chances of success.
You say that Cumulus has not acted in a way to show they need immediate relief. I agree and one could surmise from this they are actually acting in a petulant and retaliatory way to show others not to think about acting up. It is plainly obvious.
I am fascinated by the NLRB angle on several fronts:
1. Can NLRB charges be dropped by the complainant? If not, I'm wondering how this case gets settled... The NLRB General Counsel (according to Google) says that non-competes are almost always unenforceable. Which would seem to indicate that D&J might have a shot there...
2. Having said that, you get to go to "real" court if you lose before the NLRB (sorry not sorry to any ALJs reading this). Does anyone know which region the unfair labor practice case was filed?
3. Non-competes may be one of those weird parts of the law where you can't just look at which president appointed the judge to guess the outcome... In the 5th circuit, decent chance Don Willett is not a big fan of non-competes (for instance)...
To dig into the weeds a bit more: at this stage, the ULP charges are merely being investigated by the Board, so the process would be Dan and Jake requesting to withdraw their charges.
If the Region finds merit after the investigation (which will include asking to take affidavits from Cumulus folks, who aren't required to cooperate), they will issue a Complaint and the case will be tried to an ALJ. Once a Complaint has been issued, the way to settle the case would be for the parties to enter into a "non-Board settlement," and then the Board would dismiss the Complaint in recognition of the parties' private settlement.
Pman, I'm not sure it matters too much what the Court thinks about the ULPs. I think the NLRB's ALJ can award reinstatement and backpay independent of the civil lawsuit.
I get that and I agree that it seems unlikely they will convince the Court to dismiss the entire lawsuit because of a preemption argument. I'm saying Cumulus could prevail in some or all aspects of the lawsuit, and still be found liable for wrongful discharge in violation of the NLRA.
If Cumulus prevails in the court but still has to deal with a decision that awards them reinstatement and back pay, where does that get them? I've had to deal with several adverse ALJ/Board decisions like that and it sucks, especially if you really don't want to bring the person back. Then it's just extra $$$ to get them to go away forever.
If I were Cumulus I would try to find a basis for an argument that they are supervisory employees under the NLRA definition and thus don't fall under the Act.
ColoradoP1, this is not within my wheelhouse, so I would appreciate any clarity. In my experience with reinstatement and backpay, there has been either an actual or constructive termination. I suppose it would help for me to actually read the NLRB complaint, but are they arguing that they would have continued employment with Cumulus but-for the existence of the non-compete? I'm having a hard time wrapping my head around being reinstated to a job that they made clear they left because the terms of a new contract being offered to them were not attractive.
OK so forgive me, I'm making the rookie mistake of sitting here talking about stuff before actually reading the pertinent documents. I went back and read the ULP charges and as I'm sure many more diligent people than me know, they are not alleging wrongful discharge.
I will shut up until I actually read the entire response in detail, instead of skimming parts of it. Sorry Pman and Confessors.
As most of the cumulus bootlickers here have attacked me for daring to say anything anti company, I must admit the combo of Donnie, Mino and Monty is very good. Donnie is better without MM and it’s not even close. Those 3 with Sean piping in on baseball matters would make an excellent midday show.
I didn’t think hiring Matt was a disaster. I thought he’s was gonna be fine. Todays shows have shown what a mistake the Catman made….Donnie, Monty, Blake, Ham, Mino and to a much lesser extent Sean were excellent today.
NB: I am an attorney but my area of practice falls well outside the realm of employment law and non-competes. I will, of course, defer to the knowledge of my more learned colleagues.
The judge ordering this to mediation the day after the hearing is very interesting and, as P-man says, it is very uncommon. I have been pondering the potential reasons for this, and here's what I have come up with:
1. I think the judge is unimpressed with – perhaps even annoyed with – Cumulus and its attorneys. Their pleadings/tactics have been sloppy, contradictory, and potentially misleading. I know from experience that federal judges have ZERO patience for errors and are not going to help a party get around a poorly plead application/motion. You may have meant something else, and the judge may understand what you actually meant, but you are only going to get what you asked for in writing. This is Big Boy Court and Cumulus attorneys have, thus far, appeared more suited for the Kids Table.
2. I think the judge wants to give both parties a chance to air their grievances, but I imagine she already has an idea of how she is going to rule. It seems to be the consensus in here that Cumulus will be denied a TRO but will ultimately prevail on the merits. If the judge is of like mind, I expect her questioning at the hearing will be very pointed and will telegraph this. The message: you know how I’m going to rule, and I’m giving you the opportunity to work it out before I do so.
3. The NLRB cases are interesting, but my knowledge of administrative law is practically nil despite taking the course in law school (my apologies, Prof. Mayo). I will be interested to see how much weight the judge gives them at the hearing.
4. It the judge's questioning suggests she is not going to issue a TRO, I think there is a very good chance that this is resolved at mediation. Cumulus will know they face a lengthy and expensive battle, on two different fronts, and that should soften some of the hard stances they have taken … especially if they fear the NLRB cases. I have never thought they want to destroy SD+J, but they had to file suit to enforce the non-compete: if they did not, they would practically be inviting all future expats to disregard similar clauses in their contracts.
5. The real wildcards in this, as they have been since the outset, are SD+J. Do they now see themselves as Crusaders for the Cause, ready to ride this to the end in the hope of creating case law that strikes down non-competes? Or are they willing to see this opportunity for what it is: their last chance to get off a burning ship that could wreck them both professionally and financially?
6. RE: Crusaders for the Cause … do not doubt for an instant that SD+J's attorneys want to take this the distance. If they are in fact handling this pro bono, they don’t want a mediated resolution – they want a judicial proclamation decreeing the evils of non-compete clauses. Confidential mediated settlements don't get headlines or keynote speaking engagement. Does their agenda conflict with the best interests of their clients and/or does it potentially cloud their ability to advise SD+J as to what is in their best interests?
7. I think it bears mentioning that, if this does not settle at mediation on August 28, that does not mean it will not settle. Complex cases like this are sometimes mediated two or three different times before an agreement is reached. If the parties can show the judge they made real substantive progress at the mediation, the judge will likely hold off ruling on the TRO to give the parties additional time to talk.
8. Finally, assuming it does settle, we are unlikely to know the terms of the settlement. It will almost certainly contain a confidentiality clause and a substantial monetary penalty for anyone dumb enough to go on a podcast and disclose the terms. SD+J may get to keep doing their podcast, but we will never know at what cost.
Again, these are just my own thoughts. I have been enjoying the discourse and wanted to make whatever small contribution I could.
@JJJJS: Excellent measured analysis. I had the same thought about the unusual scheduling. And glad a practitioner agrees with me that Cumulus's legal procedural strategy may adversely affect the outcome on the merits.
For all the many discussions, one thing I have not seen mentioned is the Texas statute and recent 5th circuit opinion on reformation of overbroad non-competes. People seem to think that if a non-compete overreaches it is busted. Not so in Texas, and not so in 5th Circuit applying Texas law.
Texas Bus and Commerce Code 15.51 (c): If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed, except that the court may not award the promisee damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief.
The Fifth Circuit has suggested that this is mandatory even at the Temporary Injunction level.
I got to wondering who might be guiding this case at Cumulus. I googled, on my phone:
"cumulus general counsel."
What I got was "Richard Denning, EVP, Secretary and General Counsel." with a link to the "Executive Leadership Team -- Cumulus Media."
However, the associated photograph was not of Richard Denning, EVP, Secretary and General Counsel of Cumulus Media, but Richard Denning, 40's-50's movie actor, who starred in such classics as Unknown Island, Creature from the Black Lagoon, Target Earth, Day the World Ended, and Creature with the Atom Brain. (He was also in more celebrated fare, such as An Affair to Remember (Cary Grant), Some Like It Hot, Million Dollar Legs (W.C. Fields), and starred with Lucille Ball on radio in My Favorite Husband, the forerunner to I Love Lucy.
However, he left us in 1998 and is not guiding Cumulus's legal strategy. But the real Cumulus Richard Denning is not a bad-looking gent himself.
@OU812 Dude, the bootlicker stuff is not only incorrect, but it is, more importantly, not how we do things around here. You've conflated MTC with another site dedicated to The Ticket and all things Ticket related. This is the second time in a week or so that you've engaged in such behavior. First you accused someone of domestic violence via a peurile rhetorical slight of hand; now you falsely and blanketly accuse Confessors in the main as being Cumulus shills. I ask you to please read comments and think about them before making such ad hominem statements. From my read, the overwhelming majority of comments have been critical of both parties and in equal parts. I fail to understand why Dan and Jake have become a hot button issue for some. Taking the information in as it comes and offering analysis (professional or arm chair) and coming to conclusions based on the information on offer, no matter where it leads, is a good thing.
You do have some good things to say, OU812. I just wish you would refrain from the, frankly, silliness. While I wouldn't know you if you knocked on my door, I'd like to think you're better than this. By the way, I totally agree with you on the Donnie, Monty, Blake pairing. Personally, I don't think McClearin was Cat's call. Something tells me that was from on high, and not what Cat wanted.
Pre say saaaaaawwwwwwrrrrrrryyyyy to all the fanboys, but I'll take what I heard during today's midday any day of the week over THZ or TDZ. That was an excellent mix of sportsyness, yuks, and even a few thought provoking tid bits. No bogging in sight. Smart, funny, good insights. More of that please, thank you. Y'll go pay your $69 be a kewl kid and have at it. As far me, more DaMB, more WiPS. I don't want anyone losing their job, but maybe Cumulus could move MM to another station or back to Bama. Gagreed that the hire came from Atl corporate.
Someone on reddit said that McClearin is family friends with one of the Cumulus execs( the exec's name is mentioned in the thread), so he's essentially a nepo hire.
You can tell Donnie meshes better with Monty. With MM you can hear there's some tension between him and the rest of the crew. If he's a corporate plant, how do they get rid of him?
It’s heartening to hear others rave about (or at least digging) today’s midday shows. Today showed the way forward without D&J. Today “worked”. It’s was fun, sportsy, interesting and absolutely gelled. I hate advocating for someone to loose a job….but Matt coming back Monday is gonna be a bummer.
As far as him getting the axe, only ratings will matter? Sigh, Donnie (and Blake…assuming he stays if D&J win out in the end) deserve better.
MAYBE, maybe.... Cat adds Monty to DaM as in DaMM.... "We added two D's to BaD and now have Double D's." There is precedence. Could be the compromise we need.
They aren’t changing any of the midday lineups anytime soon. They don’t even have a book with which to make any rash decision. I didn’t have my ears listening today, so great to hear some commenters here and on Reddit how well it went. But as I commented on a prior MTC thread, I’ve sampled 1-3 the last two weeks and I’m not digging it. Not feeling Seabass as a primary voice and David’s radio voice and personality still seem best suited for Sunday mornings. I’ll check back in when football season is in full swing and see if they’ve melded together better. Hopefully full time Monty helps. Zero interest in 10-1 honestly. Just like I had prior in 10-12. Donovan once again getting skunked on co-hosts.
Yeah so far very disappointed with Matt McClearin. I've tried to give him a chance but seems like he just doesn't have that "it" factor or alpha personality. Same can be said for Mino and Bass too but their 2 hour show is more of the developmental show so I'll give them a pass for now. This is supposed to be MM's dream job but so far, he just sounds like a guy happy to be along for the ride. Good news is that I'm sure everyone part of this Mid-day Makeover are replaceable or movable within a year if ratings are not good.
As a neutral observer I actually believe the petty vindictiveness we see in the Cumulus lawsuit is personal, Dan Bennett clearly suffered some kind of narcissistic injury when Dan and Jake did not immediately comply with whatever his demands/expectations were. He clearly did not like Dan and Jake treating contract negotiations like negotiations at any point, and seemed to take Jake's later mocking very personally, dedicating pages and pages to how damaging Jake's jokes were?
The entire lawsuit reads like an emotional rant from someone who simply dumped all of this info onto a poor young lawyer who transcribed what they said and submitted it to the Court verbatim.
That being said Dan and Jake clearly have an uphill battle on the merits of the podcast non-compete, but Cumulus would have been much better served writing the suit in a different way?
I have seen a lot of comments about the strange nature of Dan and Jake's counsel, I would have personally used a local Dallas non-compete firm who has experience taking cases to trial. I also got my ass kicked by Matt Bruenig at multiple debate tournaments almost 20 years ago, so what do I know?
Having someone who Actually Gives a Shit can be incredibly valuable, especially when you are going against a large firm and a junior associate who Doesn't Really Give a Shit about anything but billable hours.
If Matt Bruenig can somehow put their case in front of the right eyeballs at the NLRB, Cumulus will likely consider settling just to avoid the weird bullshit hassle of NLRB cases, which cannot be predicted.
I would bet ten billion dollars (he does not have ten billion dollars) that Dan B has nothing to do with this suit outside of the affidavit with his misspelled name. He’s effing middle management. No matter his possible hurt feelings, he doesn’t get any say in how Atlanta goes about their legal strategy with D&J
@Ghostie 1133: I agree with MCC. No one other than Cumulus counsel had the slightest thing to do with drafting that complaint and application, other than giving the facts to counsel on which to base them. While Cumulus's pleadings have had their problems, some of them serious, their content has been competent, clear, and, for the most part, persuasive -- the tone is neither vindictive nor retaliatory.
However, I have been mulling over exactly why Cumulus's pretty good case has gone so off the rails. I and others have pointed to what we see as sloppiness and poor strategy on the part of their lawyers. And surely the failure to file a rule-required application along with the TRO application that looked to all the world (i.e., the federal judge and I) intended to seek an ex parte ruling is on their doorstep.
But sometimes, issues like the delays I have ticked off above that have been so damaging are strategies requested and endorsed by the client. Perhaps they'd hoped to get what they wanted on the cheap -- serve a cease-and-desist and wait to see if they quit; file a complaint and wait to see if they quit. Those were not good strategies, but it's at least possible that those strategies originated at Cumulus.
For the record: I kind of doubt it. General counsels and their staff are busy with other things, especially since this relates to only one station in a big network that has more serious problems. I'm thinking that Cumulus involved litigation counsel when it was clear that SD+J were going to breach their noncompete, then sought and took their advice on how to proceed. And I'm guessing that its first stop was not Dallas's Baker & Hostetler, but the rather small Atlanta firm, Wargo, French, & Singer.
It's just hard to say, but this dispute is a pimple on Cumulus's backside. It's misleading to over-anthropomorphize a corporate response to a local problem.
And I don't want to be too snarky about small Atlanta firms, at least not this one. I note that the Atlanta partner working on this case has been successful for Cumulus in the past in federal court in Texas in a radio-host related case:
"A Texas federal judge on Friday found in favor of Wargo French Singer’s David Pernini, confirming the $1.7 million jury verdict Mr. Pernini obtained for a unit of Cumulus. In a 15-page opinion, U.S. District Judge Sam A. Lindsay rejected the motion for a new trial or judgment as a matter of law lodged by Baisden and his company Baisden Enterprises Inc., which sought to overturn the jury’s finding last year that the radio host had broken his contract with Cumulus unit Radio Networks by keeping a $1 million overpayment, and had fraudulently transferred $700,000 of that payment."
So -- Cumulus has competent counsel; why this fairly standard noncompete/trademark case has turned out to be so difficult probably has more than one set of parents.
Is it really so difficult, or was there a minor setback that was immediately rectified? Maybe all the other lawyers here are significantly better than me (very likely), but I've certainly had my share of unexpected orders in federal court that required some recalibration.
@Hmm: I thought my prior posts had been clear, but if not:
The major problem here has been the repeated delays, not just the missing certificate of attempts to give notice. Those delays, in turn, were exacerbated by the failure to comply with the federal rule, which both caused the court to put things off and made counsel look bad
That order was not unexpected or a hiccup. It denied relief outright, and the error was noted here even before the court ruled. Like MTC, the judge immediately saw the problem and ruled in a predictable way.
It seems to me that the delays are completely immaterial given the quantum of evidence of imminent harm put forward by Cumulus. They were probably never getting temporary injunctive relief. And that’s not intended as a knock against counsel so much as it is acknowledgement of the facts on the ground.
This may seem counter intuitive, but the longer it goes, the higher TDZs subscriber count, the greater the damages can be shown. Try this cumulus lawyers: “your honor, with all due respect to the defendants, they’re a couple of midday talk show hosts in a sports station in Dallas. Yet in less than X months they’ve grown a subscriber base to X thousand, competing against my client with the same hosts, the same format, that they were previously employed in. They’ve climbed to the to x percent of patreon accounts in just 2 months, far surpassing podcasts like x y and z. They claim not to be competition because they’re streaming and my client is a terrestrial radio station. But here’s data on how X percent of radii listening is now thru mobile devices. Furthermore, even though they release them at different times, listening is now shiftable. Here’s deposition testimony from My ticket confession poster X who says he know listens to podcasts like the defendants now instead of my clients broadcast. And listeners have a right to listen to anything they want, but my client specifically contracted for 6 month non competes to give replacement shows a chance to build. And a reminder your honor, defendant kemps contract specifically forbid him from podcasting or streaming for 6 months. Leaving defendant McDowell out for the moment arrguendo, defendant Kemp is clearly in violation of his contract and should be enjoined from further releases pending the outcome of this litigation”. C
Pman, I absolutely believe they’re violating the contract (with the caveat that I don’t know this area of law very well), but I haven’t seen any evidence of imminent, irreparable harm that would justify preliminary injunctive relief. Unless they actually have something real on the solicitation of advertisers front, but D&J have sworn that they haven’t done it — just saying Cumulus better have more than phone calls and foot lockers. The reply brief will be instructive.
As it is, this seems like a garden variety breach case. Sure, you ask for the TRO and the TI, but that’s not the whole game. I’d be trying to line up my expert to prove up damages right about now.
I’m curious what the lawyers here would think if Jake had an identical contract to Dan as far as NOT including podcasts as a competing business—would that be a somewhat slam dunk case in favor of Dan and Jake as far as the noncompete goes?
I realize this doesn’t actually matter one bit because Jake’s absolutely does list podcasts as a nono. Just curious about how hard it would be for Cumulus to fight it if that were the case.
How exactly can a podcast be considered competition? On the ticket you have to listen live at a certain time, have to hear ads, have to sit thru tickers, etc. Unless you subscribe to a third party website (which is a whole other thing) it’s impossible to re-listen to any of their shows. TDZ is none of those things. Not only is it paywalled, it’s prerecorded, gets published at any random time/day, and is available on demand whenever. Its main competition is the over saturated podcast market not the ticket which has very few podcast offerings of their own. Maybe if they actually had full show pods I could see a legit complaint.
(1) It is not necessary to show monetary loss to prove irreparable injury. Irreparable harm is PRESUMED where unpermitted competition is shown (according to case law).
(2) The differences between the contracts is not nothing, but it's not much. Dan's contract defines "Competing Business" as any business the same or essentially the same as the Company Business. The Company Business -- arguably -- included the various podcasts identified in the Complaint. Dan has a slightly better argument than Jake, but it is not determinative, and he hasn't made a big deal about it in his defense, as I recall.
(3) A "podcast" can be considered competitive when, in Jake's case, he agrees that it is in writing, and in Dan's and Jake's case, when Cumulus is engaging in it at the time of termination.
And finally:
(4) There is no such thing as a slam dunk in lawsuits. You never know what a judge is going to do, or why.
I don't mind anyone expressing a view of the merits here, but I do recommend reading the filings in this case and some of the commentary in the last few postings. That's a lot of stuff, I know, but we're going over some of the same things over and over, and I need a nap.
A kindly Confessor sent me a link where you can find the pleadings without being on PACER:
A podcast is competition because in the binding legal document that Jacob Kemp signed, Cumulus/Susquehanna defined competing business and included podcasting and internet streaming, paragraph 1.3. Jump ahead to paragraph 2.3 “the sole employment” and paragraph 7, hereafter “the non compete”. Paragraph 7 Kemp agrees not to compete, para 2.3, unless approved by company. If Cumulus is smart, they have an email allowing Jake to do Its just banter. C
Maybe it’s not but I’ll say this. When they published this months ratings Cumulus had positions (if I remember right) 1-3-4 and 9. They’ve taken a crappy signal that the last owner threw away on big band music because the signal was so bad, combined it with a rimshot FM signal you can’t hear in VAST stretches of the listening area, and taken 2 dog-crap signals and made them the number 1 radio station in the market for 6 months straight. They may not be smart, but business wise, I’m not about to call them stupid with that track record. C
Pmam- not pointing out the difference between Dan and Jake’s contracts are part of why I said Kingston and Breuning are being too cute. Their reply made much of of how the podcast is totally different than radio, without acknowledging the elephant in the room, that Jake at least explicitly agreed not to podcast as competition to TT for 6 months. I’d bet money that Cumulus’s reply will hammer that point home. I would. C
But difficult to rebut when you've already agreed to it, or your agreement says that a Competing Business is a business the employer is engaged in, and it is in fact engaged in that business.
But the burden is on SD&J to rebut the presumption, and just saying "you didn't lose listeners," without more, seems unlikely to me to rebut the presumption.
Splitting hairs is frequently what legal arguments are about. That's what we're starting to do here, and it's not a good forum for it.
And Jake and Dan themselves really aren't doing that here. They're making a woe-is-me fairness argument and pushing most of their chips onto the National Labor Relations Act argument, hoping to deflect attention from the fundamental legal weakness of their defense. Absent this judge deciding to use this case to introduce a seismic change in the federal-state balance in employment law and in federal preemption (Supremacy Clause of the Constitution, Article VI, Paragraph 2) -- I don't think it's going to work.
But ya just never know. I do think chances for short-term injunctive relief have decreased owing to Cumulus's "strategy," but not to zero, and not before Cumulus spends a lot of money, and SD+J's lawyers spend a lot of hours, compensated or not, on behalf of the lads.
Please forgive my ignorance in this area, and thanks for your insight -- apologies for missing the earlier discussion about the presumptive harm wrinkle. But it seems to me in my ignorance that at least part of the response would dovetail into the waiver argument. "Cumulus clearly didn't believe it was losing listeners because they have for years permitted x, y, and z endeavors that do the exact same thing D&J have done. And by the way, IJB was pumping out episodes in the last 6 months when the Ticket was having the highest ratings of its existence."
If I had to guess right now from what the judge has done -- and my crystal ball could definitely use some Windex:
(1) Cumulus will file its reply to SD+J's response on the 17, as scheduled. It will be very effective on most of the arguments.
(2) The court will hold its hearing and her questioning and remarks from the bench will give both parties pause. She won't show much favor to either side, but note weaknesses in both cases. She might even suggest a possible resolution. She will know that Cumulus has the stronger position, but she will be reluctant to put SD+J completely out of business. Both sides will catch some hell, as she wants them to have the proper frame of mind for mediation.
(3) She will not rule on August 21, pending the scheduled mediation. She will schedule another short hearing date if the case does not settle at mediation.
(4) The mediation will take place the next day (August 22). It might settle; Cumulus probably wants it more than SD+J. However, even though Jake and Dan and their lawyers are crusaders, if they're not getting paid those crusading lawyers will have an incentive to end this case as well. They've got better things to do. But entirely possible that the parties will dig in and that will be the end of mediation.
(5) If it does not settle, the court will grant Cumulus some or all of the relief it is seeking. It's case is just stronger, and SD+J are arguing too many irrelevancies and unsupported legal theories, and have not responded persuasively to Cumulus's superior papers. (Note: Not all of their points are irrelevant, and the lads do have some defenses, especially to emergency relief (it can hardly be called an emergency at this point).) The court might whittle down the noncompete to a shorter period (as someone has pointed out above, this is permitted under the Texas statute).
If the case doesn't entirely end at this point, one side folding its tents, or the parties reconsidering settlement, it will proceed to discovery, and then the fun will really start.
Cumulus's response isn't due until the 17th, and a lot can happen between now and then.
I think part of it comes down to does Cumulus consider it competition. If Gordo asked for permission to do a twitch stream, and agreed only to do it at night, during non-prime listening hours, I’d that competitive? All the rest, from TV guest appearances, ro writing newspaper or magazine articles clearly aren’t seen as competitive to 2 guys talking “sports and all that implies”. Personally, I’ve never thought of IJB as competitive, but I think it would be pretty damn funny if a federal judge read Jake’s non compete and enjoined him from doing ANY podcasting during his non compete period. C
One little fly in the ointment here, how is Norm's upcoming podcast different from what D&J are doing? Is it because he retired and has no non-compete or is he doing this with Cumulus's blessing. He mentioned it several times on his last day on air. Was this part of his retirement deal or will he get a letter on September 2nd?
There’s a norm video out on Twitter, he say it’s going to be commentary on a variety of things, 2-3 minutes, 5 or 10 at the most NEVER 30 minutes. (His emphasis on never). Norm said somewhere thst he had decided to quit right after the NFL draft -so late April- but they didn’t announce it until mid June with his last day close to the end of June. I can see negotiations there to allow him to do a podcast, and to codify what he agreed to do- fill in as needed, do the draft, normathon, etc. I’m sure TDZ is going to jump on this as inconsistent, but it’s hard to argue that 3 minutes of commentary is the same as 90 minutes of sports talk. C
Jake now claims that they did not record any conversations and that their explicit claim to the contrary on the podcast was an obvious joke.
Did anyone hearing that think that were joking? Or that it was obvious? The statement in the July 20 "good-bye" recording: "The first thing that we’re gonna put out there content-wise is the full content of every single phone call we’ve had with the company . . . we’re just gonna release all of that.”
So I don't know whether to think they were joking then or lying now.
If he was joking then, it was a spectacularly ill-advised jape.
By the way: The pendency of litigation -- not sure whether that would start with the cease-and-desist demand, or only when suit was filed -- carries with it the obligation not to destroy documents and other evidence, including digital evidence (recordings, texts, emails). If they played recordings for anyone and now they can't be found on their phones or computers (which could be subpoenaed in discovery if a dispute arises) -- big trouble for the lads.
I'm frankly hoping they did not record, but even if not -- no benefit in taunting that they had done so, and a shot to credibility to say now that their claim was untruthful.
Yeah I noticed that the other day and was going to comment on it and got distracted by some other shiny object. Maybe I've watched too much Boston legal, LA Law, Ally McBeal and Suits, but I keep hearing the depositions in my head. Cumulus Lawyer: "So Mr McDowell, you had said you recorded all your conversations with the company during the negotiations, yet when we subpoenaed those recordings, you said they didn't exist. So Mr Mcdowell, did you destroy evidence or are you a liar?" Dan "I'm a sports comedian, that was a joke, we're having fun here, no?" C
Hey all, its been a minute but I've enjoyed the dissection of this lawsuit.
With everything that's coming out in the litigation...I have it in the back of my mind that TC once tried to organize the board ops, producers, and ticket ticker guys to demand better pay and ticket management may have sent a host or two in to break that up on top of exerting pressure in other ways.
I only bring this up specifically because in the D&J litigation they've brought up in that they were forbidden from discussing salary, etc. With other employees.
Am I misremembering this? Did I get Ballszacked sportsed?
C, I know it's all in fun, but the show depositions are largely more explosive than reality to no one's surprise. In your example, I'd just want to get full commitment from the witness at the deposition and then spring the trap at trial.
We ought not overemphasize Cumulus telling employees not to discuss salaries among themselves on their own time (breaks, lunch, non-working hours).
Federal law does not permit that. It is considered an unfair labor practice for employers covered by the Act, union or not.
Now, Cumulus might have tried to tell employees not to discuss salaries, and employees may have been intimidated into not doing so (apparently not), but it is not legal.
It does not appear to be a basis for the lads' NLRB charges.
I say this because Jake and Dan have mentioned it several times: Why do they want/need to know their fellow employees' salaries? Moreover, why does anyone feel the need to share one's salary? Why is this important, to anyone? How is it anyone's business other than the individual? In what way is it a "boomer" thing to not share your salary number with others? Why is it considered a good thing to share the amount one earns? Conversely, why is it bad not to?
I also don't understand this notion of an employee being somehow morally obligated to pay fellow, lesser compensated, employees monies from their own pocket. Isn't that (i) the role of the employer and (ii) an issue to be discussed between employer and employee? So it would seem that if the crux of all this is to secure better wages for the Blakes of the world, why are they doing any of this? Why didn't they merely tell Cumulus they would not be renewing contracts, sit out the NC that per their contracts they agreed to, and then started up their own business. From that point forward, they would be the employer and could compensate their employees in a way both they and the employees find equitable.
I guess I'm a dummy and just don't get it. But I don't.
The more this drags on, the less I believe either Cumulus or Dan and Jake.
Rocky Road: Because salary obfuscation and opaqueness serves to depress wages both within a company and across different companies. Harvard law school did a study once and determined there was no greater acceleration in executive salaries than when the SEC begun requiring the top 5 executives salaries in public traded companies to be published in their annual Def 14A reports. It set the stage for comparative salary surveys between executives and the explosion of executive wages. Obviously the same guys that are making these huge salaries don't want the common folk to discuss their salaries else there would likely be wage pressure.
"The more this drags on, the less I believe either Cumulus or Dan and Jake."
Where, exactly, do I defend Cumulus?
@David not Goliath I understand that, but we're not talking about CFO/CEOs here. The reasons for Dan and Jakes' desire for disclosure are unclear. In no world does a board op earn anything commensurate to a host. Now, if you're talking host qua host, board op qua board op, OK. You're talking apples to apples; this is an apples to oranges case. As I said, I just don't get any of this. On either side. And again, I've never claimed to be even the 15th smartest man in the room. So there's that.
“ Why do they want/need to know their fellow employees' salaries? Moreover, why does anyone feel the need to share one's salary? Why is this important, to anyone? How is it anyone's business other than the individual? In what way is it a "boomer" thing to not share your salary number with others? Why is it considered a good thing to share the amount one earns? Conversely, why is it bad not to?”
The more workers know, the fight for better pay is easier. My accusation of you defending corporate was wrong. I just hate workers fighting amongst themselves.
At 425 PM on Friday, I posted about a funny little thing that happened when I googled "cumulus general counsel," whose name is Richard Denning. Google attached to its search result a picture of Richard Denning, the actor.
Last night on Svengoolie -- you do watch Svengoolie, don't you, on MeTV? -- he featured THE BLACK SCORPION, starring Richard Denning.
@Wut You have confused questions with claims. There is a marked difference between the two. Besides, for the sake of argument let's say they were claims (they weren't). Your conclusion is a non sequitur, as such claims do not necessarily entail (follow) taking either side. By the very fact that I included a perceived generational bias alone should clue you into this. The tendency towards reactionary responses on this site of late is irksome. Used to not be that way. At least not as often as it's become since this last "crisis." I swear, at times it seems damn near pathological.
I’m trying to keep up with the legal stuff but can I just ask, if Jake signed a noncompete that said no podcast for 6 months and he does a podcast, what’s his angle? He signed it and knew right? Are they fighting that a noncompete isn’t right in the first place?
Cumulus might have caught one break. The lads filed their response thinking there was a going to be a quick hearing, or perhaps a decision without a hearing, so they got their response on file yesterday (August 10) before the court ruled that they could have filed it shortly before the hearing, with Cumulus only having two days to respond.
ReplyDeleteNow, Cumulus has a week to put together a response, pending any further orders from the court.
all the while, the 6-month non-compete clock has been paused.
ReplyDeleteSection 7 of both their employment agreements may end up becoming the most problematic.
I don't believe I've seen any predictions/opinions about SD+J dodging the restraining order since the hearing was announced & SD+J signaled their strategy. What is the likelihood they have to shut down their podcast?
ReplyDeleteI'd specifically like to hear from Colorado P1: How will the strategy of "we don't think non-competes are valid so we're doing what we want" will fly with the judge at this hearing?
I may catch some flack for this, and Dan does seem like a good guy…but if they’re trying to take care of the talent around them and what not..maybe take a look at the 300k salary Dan had going..prob one of the only dudes in a midday slot nationwide to make that much.
ReplyDeleteIf Dan was making 300k (is that in writing anywhere?) the Musers are making 2 to 3 times that number and doing nothing for people like Jer. I think Dan comes across just fine considering we know he paid people out of his own pocket.
DeleteWhat’s Cumulus’s best case scenario here? A relatively small financial settlement and keeping them from podcasting until 2024? Ruling over all current employees through fear?
ReplyDeleteThe Streisand effect seems to be fully at play here with more and more people hearing of the lawsuit.
My prediction is that Cumulus will not win the TRO/PI. They have not established any harm that I can see where it has to be shut down right now as opposed to at the end of the trial on the merits.
ReplyDeleteThis isn't a prediction that D+J will ultimately win, just that injunctions have a high standard of showing current harm from D+J, I don't think Cumulus has met this burden. This would have been met with actual evidence of D+J soliciting advertisers (Cumulus alleges this but has no evidence) or D+J trying to take other employees (Blake), or if Cumulus had a patreon podcast that people were cancelling to subscribe to D+J. D+J already changed away from the House Party/Hang Zone logo so that is moot.
Unless Cumulus comes forward with some hard evidence in the response (affidavit from an advertiser that D+J are soliciting them), there is enough grey area that it's not a slam dunk that Cumulus is suffering irreparable harm if TDZ continues until the issues are decided at a trial.
Cumulus has been a little sloppy so far, but I’m going to be real surprised if they don’t have affidavit, email, voicemail or something from a client saying TDZ called me about their podcast. Stupid of them to include that charge if they don’t have something to back it up.
ReplyDeleteBut so much of the rest of this seems to be splitting legal hairs. Jake says no raise from producer to host. But in yesterdays affidavit said he got raise a few months later when he signed host contract. I can see Cumulus side, he got a raise when he became host, which probably became official when he signed them”host” contract. But I also get Jake’s side in he feels screwed out of 3-5 months of increased pay.
And I still think Jake’s contract is going to be the issue. Poster above me doesn't think the podcast is competitive. Plenty of people here, Reddit, Facebook, etc say the same. But 4K people signed up to hear TDZ do a podcast. And Jake’s contract specifically bars him from podcasting for 6 months. If the NLRB gamble works, they may be clear. If it doesn’t, I hate to think of the amount of legal fees TDZ will be liable for.
C
I would be surprised if D&J couldn’t produce an affidavit stating Dan Bennett violated federal labor laws by forbidding any discussion of salaries between cumulus employees.
DeleteWhy should cumulus be protected against competition? Isn't competition what is supposed to drive our market and economy. I understand the work-for-hire concepts in all this. That is in my era of expertise. I can see the case Cumulus has for IP violations but I agree with D & J that noncompetes are BS. If any company doesn't want to compete with a former employee they have the option to pay them what said employee is asking. If not then that employer is, IMO, saying that we can get someone else to do the job for cheaper. If that is true then how is their damage to the employer, if they are wrong that should be on them.
ReplyDeleteTrade secrets, IP, and poaching clients are another matter. Though even on poaching clients I'm inclined to say that's the company's problem, not the former employees.
area of expertise...
ReplyDeleteTwo thoughts from a non law person. Could Cumulus show the hundreds/thousands of people on X, Facebook, Reddit who say they are no longer going to listen and have subscribed to the podcast as proof that it is harming them? Perhaps in a similar realm, if they showed lower ratings over the past month, could that bear any weight that they have been harmed? Maybe a combo of the two?
ReplyDeleteWe have always heard Cumulus is terrible, the hosts have joked about that for years. It is just in the past year or two that we are hearing just how bad they are to the non-air talent. It seems like D&J were trying to bite off 2 big chunks at the same time with trying to get their coworkers more money as well as trying to kill the non-compete. While both seem altruistic, perhaps it was too much at once? The fact that they claim the money was good in the latest negotiations and they were going to get their coworkers more, it seems like they might have signed that one and then fought the non-compete next time.
It's interesting to me that the Musers keep getting dragged through the mud. How are they different than any other business anywhere - there is a hierarchy (I agree the tier system while maybe a joke, shouldn't have ever been a thing) where some people make more than others.How many people lurking here are VPs, directors, business owners who bring in 2x, 3x, 4x or even 10x their lowest paid employee - those same employees that are essential to them being where they are today. Unfortunately, Cumulus (not the Musers) apparently don't value board ops, ticker employees and producers as much as they value hosts in terms of salary. I don't think that should mean that hosts pay those people out of their pocket. That also makes it awkward for those positions. Host: "hey buddy, I know you don't make much money so here's some extra $$$$ to help out." While a nice gesture it puts everyone in a weird position.
ReplyDeleteI agree with Moron Dog completely. We don’t know the dynamics of the relationships between the Musers and support staff. The Musers are jerks because they don’t pay for support staff out of their own pockets? Ok. But the Musers have also had the same producer for decades. Moran was with them for decades as well. They provided steady employment and what one would have to believe to be a good working environment, given their stability in morning drive. That is a tough schedule to keep. On the other hand, Bad Radio was infamous for how difficult they were to work with. Dan would get frustrated and scream at his producer regularly. They made jokes of these epoxides later, but I don’t believe it was a pleasant working environment. Rick Arnett and Tom Gribble both alluded to this.
ReplyDeleteFurthermore, the Musers give their time and energy to multiple charitable cases. They have raised enormous sums for the Special Olympics, Senior Source, Big Brothers Big Sisters, and the Hope Supply Company, to just name a few. I can’t recall a single event or drive spearheaded by Dan and/or Jake. I think I saw posted here in MTC a few weeks ago that Bob and Dan had a charity bowling tournament years ago, but nothing since. Nothing without Bob. I mention this not to disparage D&J. They can choose to utilize their time and money however they like. Doesn’t matter to me. I mention it only to provide a different perspective on the Musers. I don’t believe them to be the cold-hearted jerks they are portrayed to be over on Reddit.
Non-D&J opinion here. Donnie, Blake and Monty are having much more fun and making a much better show with Matt gone Friday. I thought Matt would settle in better, but fuck he’s more boring than I remember….
ReplyDeleteWe'd all like to be paid more. I'd like to be paid more for what I do. But the supply of what I do (self-publish books, self-publish a blog) greatly exceeds the demand at any price (asymptotically approaching zero). I am compensated accordingly (ditto).
ReplyDeleteTop-flight, pull-in-the-ratings on-air talent is hard come by. Supply is low; demand is high. It can be developed by non-air employees, but it's lightning in a bottle. Exhibit 1: The Freak. Exhibit 2: Most other radio shows everywhere in the universe.
People, especially young people, with excellent technical chops needed to run a radio station and assist with program operation, are dying to work at The Ticket. Supply greatly exceeds demand. Do I recall that some assistants work for almost nothing, run personal errands, assist with the sosh, fetch chow for Bob and Dan, for practically nothing? Do they work hard and, in an ideal world, would they be paid based on desire and energy, be paid more, some more significant percentage of what the "talent" makes? Sure. Do they "deserve" significantly more than they make, significantly more than people in similar positions make at other stations, significantly more than a large number of hopefuls would because they've become long-time pals with the talent and listeners have come to know and like them to the extent they pop on?
No. Unless they have ascended to become less fungible on-air personalities, someone who assists beyond fungible technical expertise in making the station popular and successful, in which case Cumulus will pay to keep them around.
Having displayed my Friedmanesque view of compensation, let me add this: There's a limit to what the market should be allowed to permit. Even noncompetes are regulated by statute. For example, if it is true that Cumulus has conditioned raises for grundoons making low-mid five figures on signing non-competes, that is, as someone said above, a dumb Cumulus move, gross overreaching, and might well be thrown out of court as unconscionable.
Having now commented on the awfulness (or not) of Cumulus's compensation decisionmaking, let me pre-say that I'm not going entertain a lengthy back and forth here on whether market capitalism is fair or unfair for employees. Just not gonna do it.
Wut - I completely agree, my friend. Donnie, Blake, & Monty are killing it today. A breath of fresh air in that time slot. Matt is simply too bland/boring. I love Donnie but Matt is going to kill that show.
ReplyDeleteAll - the SD+J stuff went down mid- to late-July, so we will have to wait until September to see the August ratings, right? Very interested to see what those will show ...
Normathon P1: For a Temporary Injunction, it's not really about the merits of the argument on whether their non-competes are enforceable, although reasonable chance of ultimate success on the merits is one element.
ReplyDeleteIt is more about whether Cumulus can show that money won't remedy their issues, in the end? If there is "no adequate remedy at law" -- i.e. money -- then a plaintiff can get a TI, but they must also show they would suffer a substantial and irreparable injury if the injunction is not granted.
Current view on where things stand:
ReplyDeleteI've said this was never a slam dunk and I put Cumulus's chances for success on most of what they wanted at 65%.
I should probably revise that downward not because of anything SD&J has filed, but because of what the court has done, or not done.
What the court has done, in my opinion, is related to (if not a direct result of) several Cumulus missteps:
(1) Not filing for a TRO immediately upon SD+J not complying with the cease-and-desist demand.
(2) Waiting at least ten days before filing a complaint.
(3) Filing the complaint late on a Friday, permitting two more days of "irreparable damage."
(4) Not filing a TRO application simultaneously with the TRO application and making clear that they desired it ex parte (to the contrary -- that's what it looked like it wanted).
(5) Failing to file the certification of notice with the original application.
It's dangerous to try to read a judge's mind, but it sure as heck looks like she's extremely skeptical of Cumulus's need for immediate relief. Skeptical, hell -- she's all but said they're not getting it. In addition to the original denial, she has not scheduled a quick hearing date, but one ten days hence. In addition, she has ordered mediation AFTER the TRO hearing, strongly suggesting that she does not expect to enter a judgment as a result of that hearing, which means Cumulus will continue to go without relief. I've never seen this before -- mediations are ordered to AVOID hearings on the merits to see if the parties can settle. Here, she's at least implying that she's going to hear everyone out, not rule, and wave everyone to mediation to see if things can't be worked out.
Why would she take this tack? My suggestion, which may have nothing to do with what the court is thinking, is found in the foregoing numbered points: Cumulus hasn't acted in a way that suggests it really, really needs this preliminary relief -- relief which (as others have correctly pointed out above) courts require a strong showing of need to grant.
Translation: No emergency relief for Cumulus.
Now: On the merits of the two filings: I still think Cumulus has much the better of it. I think the NLRA argument is a non-starter, and it takes up a big chunk of the lads' response. (For the same reason, I don't think the NLRB complaints will get too far, although the NLRB is highly partisan in a "progressive" way these days -- any relief at the Board level wouldn't survive appeal, but that is all a long ways down the road.) I greatly respect Colorado P1s point of view, but I think these complaints and the NLRA argument are going to look like a gimmick to the court.
The court won't care too much about what other employees at Cumulus are paid -- she'll see this as the misdirection play it is.
Several Confessors have mentioned that they don't see any damage to Cumulus. If you'll recall from my description of the application, Cumulus cites cases (and this is also my recollection as to the law) to the effect that damage is presumed from the fact of violation of the noncompete. I don't think that argument will get them too far.
Overall, the lads' response is passionate, which counts for something, but it is very weak on the law, by which I mean precedential support for their position. They do not cite authority counter to what Cumulus cites, and they do not attempt to distinguish the precedents Cumulus has featured. Judges don't like to be reversed, and in aid of that they like to have the law on their side. The lads haven't helped her out here much at all.
There are other defenses of varying strengths -- which is why it isn't a slam-dunk, and Cumulus's own delays and errors have further eroded its chances of success.
You say that Cumulus has not acted in a way to show they need immediate relief. I agree and one could surmise from this they are actually acting in a petulant and retaliatory way to show others not to think about acting up. It is plainly obvious.
DeleteI am fascinated by the NLRB angle on several fronts:
ReplyDelete1. Can NLRB charges be dropped by the complainant? If not, I'm wondering how this case gets settled... The NLRB General Counsel (according to Google) says that non-competes are almost always unenforceable. Which would seem to indicate that D&J might have a shot there...
2. Having said that, you get to go to "real" court if you lose before the NLRB (sorry not sorry to any ALJs reading this). Does anyone know which region the unfair labor practice case was filed?
3. Non-competes may be one of those weird parts of the law where you can't just look at which president appointed the judge to guess the outcome... In the 5th circuit, decent chance Don Willett is not a big fan of non-competes (for instance)...
1. Yes. Technically the Board could decline to accept the charging party's request for withdrawal, but that almost never happens.
ReplyDelete2. Region 16.
To dig into the weeds a bit more: at this stage, the ULP charges are merely being investigated by the Board, so the process would be Dan and Jake requesting to withdraw their charges.
ReplyDeleteIf the Region finds merit after the investigation (which will include asking to take affidavits from Cumulus folks, who aren't required to cooperate), they will issue a Complaint and the case will be tried to an ALJ. Once a Complaint has been issued, the way to settle the case would be for the parties to enter into a "non-Board settlement," and then the Board would dismiss the Complaint in recognition of the parties' private settlement.
Pman, I'm not sure it matters too much what the Court thinks about the ULPs. I think the NLRB's ALJ can award reinstatement and backpay independent of the civil lawsuit.
Seems like it would matter because D&J have explicitly argued that the district court lacks jurisdiction.
ReplyDeleteI get that and I agree that it seems unlikely they will convince the Court to dismiss the entire lawsuit because of a preemption argument. I'm saying Cumulus could prevail in some or all aspects of the lawsuit, and still be found liable for wrongful discharge in violation of the NLRA.
ReplyDeleteIf Cumulus prevails in the court but still has to deal with a decision that awards them reinstatement and back pay, where does that get them? I've had to deal with several adverse ALJ/Board decisions like that and it sucks, especially if you really don't want to bring the person back. Then it's just extra $$$ to get them to go away forever.
If I were Cumulus I would try to find a basis for an argument that they are supervisory employees under the NLRA definition and thus don't fall under the Act.
ColoradoP1, this is not within my wheelhouse, so I would appreciate any clarity. In my experience with reinstatement and backpay, there has been either an actual or constructive termination. I suppose it would help for me to actually read the NLRB complaint, but are they arguing that they would have continued employment with Cumulus but-for the existence of the non-compete? I'm having a hard time wrapping my head around being reinstated to a job that they made clear they left because the terms of a new contract being offered to them were not attractive.
ReplyDeleteAnd I thought TMZ following the Depp V Heard trial was ridiculous.
ReplyDeleteOK so forgive me, I'm making the rookie mistake of sitting here talking about stuff before actually reading the pertinent documents. I went back and read the ULP charges and as I'm sure many more diligent people than me know, they are not alleging wrongful discharge.
ReplyDeleteI will shut up until I actually read the entire response in detail, instead of skimming parts of it. Sorry Pman and Confessors.
As most of the cumulus bootlickers here have attacked me for daring to say anything anti company, I must admit the combo of Donnie, Mino and Monty is very good. Donnie is better without MM and it’s not even close. Those 3 with Sean piping in on baseball matters would make an excellent midday show.
ReplyDeleteI didn’t think hiring Matt was a disaster. I thought he’s was gonna be fine. Todays shows have shown what a mistake the Catman made….Donnie, Monty, Blake, Ham, Mino and to a much lesser extent Sean were excellent today.
ReplyDeletePART 1
ReplyDeleteNB: I am an attorney but my area of practice falls well outside the realm of employment law and non-competes. I will, of course, defer to the knowledge of my more learned colleagues.
The judge ordering this to mediation the day after the hearing is very interesting and, as P-man says, it is very uncommon. I have been pondering the potential reasons for this, and here's what I have come up with:
1. I think the judge is unimpressed with – perhaps even annoyed with – Cumulus and its attorneys. Their pleadings/tactics have been sloppy, contradictory, and potentially misleading. I know from experience that federal judges have ZERO patience for errors and are not going to help a party get around a poorly plead application/motion. You may have meant something else, and the judge may understand what you actually meant, but you are only going to get what you asked for in writing. This is Big Boy Court and Cumulus attorneys have, thus far, appeared more suited for the Kids Table.
2. I think the judge wants to give both parties a chance to air their grievances, but I imagine she already has an idea of how she is going to rule. It seems to be the consensus in here that Cumulus will be denied a TRO but will ultimately prevail on the merits. If the judge is of like mind, I expect her questioning at the hearing will be very pointed and will telegraph this. The message: you know how I’m going to rule, and I’m giving you the opportunity to work it out before I do so.
3. The NLRB cases are interesting, but my knowledge of administrative law is practically nil despite taking the course in law school (my apologies, Prof. Mayo). I will be interested to see how much weight the judge gives them at the hearing.
4. It the judge's questioning suggests she is not going to issue a TRO, I think there is a very good chance that this is resolved at mediation. Cumulus will know they face a lengthy and expensive battle, on two different fronts, and that should soften some of the hard stances they have taken … especially if they fear the NLRB cases. I have never thought they want to destroy SD+J, but they had to file suit to enforce the non-compete: if they did not, they would practically be inviting all future expats to disregard similar clauses in their contracts.
5. The real wildcards in this, as they have been since the outset, are SD+J. Do they now see themselves as Crusaders for the Cause, ready to ride this to the end in the hope of creating case law that strikes down non-competes? Or are they willing to see this opportunity for what it is: their last chance to get off a burning ship that could wreck them both professionally and financially?
PART 2
ReplyDelete6. RE: Crusaders for the Cause … do not doubt for an instant that SD+J's attorneys want to take this the distance. If they are in fact handling this pro bono, they don’t want a mediated resolution – they want a judicial proclamation decreeing the evils of non-compete clauses. Confidential mediated settlements don't get headlines or keynote speaking engagement. Does their agenda conflict with the best interests of their clients and/or does it potentially cloud their ability to advise SD+J as to what is in their best interests?
7. I think it bears mentioning that, if this does not settle at mediation on August 28, that does not mean it will not settle. Complex cases like this are sometimes mediated two or three different times before an agreement is reached. If the parties can show the judge they made real substantive progress at the mediation, the judge will likely hold off ruling on the TRO to give the parties additional time to talk.
8. Finally, assuming it does settle, we are unlikely to know the terms of the settlement. It will almost certainly contain a confidentiality clause and a substantial monetary penalty for anyone dumb enough to go on a podcast and disclose the terms. SD+J may get to keep doing their podcast, but we will never know at what cost.
Again, these are just my own thoughts. I have been enjoying the discourse and wanted to make whatever small contribution I could.
@JJJJS: Excellent measured analysis. I had the same thought about the unusual scheduling. And glad a practitioner agrees with me that Cumulus's legal procedural strategy may adversely affect the outcome on the merits.
ReplyDeleteFor all the many discussions, one thing I have not seen mentioned is the Texas statute and recent 5th circuit opinion on reformation of overbroad non-competes. People seem to think that if a non-compete overreaches it is busted. Not so in Texas, and not so in 5th Circuit applying Texas law.
ReplyDeleteTexas Bus and Commerce Code 15.51 (c): If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed, except that the court may not award the promisee damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief.
The Fifth Circuit has suggested that this is mandatory even at the Temporary Injunction level.
https://www.tradesecretslaw.com/2020/08/articles/trade-secrets/fifth-circuit-holds-that-reformation-of-texas-non-competes-is-authorized-and-perhaps-required-at-preliminary-injunction-stage/
Just a thought.
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ReplyDeleteA brief amusing side note.
ReplyDeleteI got to wondering who might be guiding this case at Cumulus. I googled, on my phone:
"cumulus general counsel."
What I got was "Richard Denning, EVP, Secretary and General Counsel." with a link to the "Executive Leadership Team -- Cumulus Media."
However, the associated photograph was not of Richard Denning, EVP, Secretary and General Counsel of Cumulus Media, but Richard Denning, 40's-50's movie actor, who starred in such classics as Unknown Island, Creature from the Black Lagoon, Target Earth, Day the World Ended, and Creature with the Atom Brain. (He was also in more celebrated fare, such as An Affair to Remember (Cary Grant), Some Like It Hot, Million Dollar Legs (W.C. Fields), and starred with Lucille Ball on radio in My Favorite Husband, the forerunner to I Love Lucy.
However, he left us in 1998 and is not guiding Cumulus's legal strategy. But the real Cumulus Richard Denning is not a bad-looking gent himself.
@OU812 Dude, the bootlicker stuff is not only incorrect, but it is, more importantly, not how we do things around here. You've conflated MTC with another site dedicated to The Ticket and all things Ticket related. This is the second time in a week or so that you've engaged in such behavior. First you accused someone of domestic violence via a peurile rhetorical slight of hand; now you falsely and blanketly accuse Confessors in the main as being Cumulus shills. I ask you to please read comments and think about them before making such ad hominem statements. From my read, the overwhelming majority of comments have been critical of both parties and in equal parts. I fail to understand why Dan and Jake have become a hot button issue for some. Taking the information in as it comes and offering analysis (professional or arm chair) and coming to conclusions based on the information on offer, no matter where it leads, is a good thing.
ReplyDeleteYou do have some good things to say, OU812. I just wish you would refrain from the, frankly, silliness. While I wouldn't know you if you knocked on my door, I'd like to think you're better than this. By the way, I totally agree with you on the Donnie, Monty, Blake pairing. Personally, I don't think McClearin was Cat's call. Something tells me that was from on high, and not what Cat wanted.
Point taken. It was rather infantile. Thanks for the note. Yes Monty Mino and Donnie just flows effortlessly.
Delete@00110011 Atlanta 100% made the call to send MM back to Dallas. It’s painfully obvious.
ReplyDeletePre say saaaaaawwwwwwrrrrrrryyyyy to all the fanboys, but I'll take what I heard during today's midday any day of the week over THZ or TDZ. That was an excellent mix of sportsyness, yuks, and even a few thought provoking tid bits. No bogging in sight. Smart, funny, good insights. More of that please, thank you. Y'll go pay your $69 be a kewl kid and have at it. As far me, more DaMB, more WiPS. I don't want anyone losing their job, but maybe Cumulus could move MM to another station or back to Bama. Gagreed that the hire came from Atl corporate.
ReplyDeleteSomeone on reddit said that McClearin is family friends with one of the Cumulus execs( the exec's name is mentioned in the thread), so he's essentially a nepo hire.
ReplyDeleteYou can tell Donnie meshes better with Monty. With MM you can hear there's some tension between him and the rest of the crew. If he's a corporate plant, how do they get rid of him?
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DeleteIt’s heartening to hear others rave about (or at least digging) today’s midday shows. Today showed the way forward without D&J. Today “worked”. It’s was fun, sportsy, interesting and absolutely gelled. I hate advocating for someone to loose a job….but Matt coming back Monday is gonna be a bummer.
ReplyDeleteAs far as him getting the axe, only ratings will matter? Sigh, Donnie (and Blake…assuming he stays if D&J win out in the end) deserve better.
MAYBE, maybe.... Cat adds Monty to DaM as in DaMM.... "We added two D's to BaD and now have Double D's." There is precedence. Could be the compromise we need.
ReplyDeleteThey aren’t changing any of the midday lineups anytime soon. They don’t even have a book with which to make any rash decision. I didn’t have my ears listening today, so great to hear some commenters here and on Reddit how well it went. But as I commented on a prior MTC thread, I’ve sampled 1-3 the last two weeks and I’m not digging it. Not feeling Seabass as a primary voice and David’s radio voice and personality still seem best suited for Sunday mornings. I’ll check back in when football season is in full swing and see if they’ve melded together better. Hopefully full time Monty helps. Zero interest in 10-1 honestly. Just like I had prior in 10-12. Donovan once again getting skunked on co-hosts.
ReplyDeleteYeah so far very disappointed with Matt McClearin. I've tried to give him a chance but seems like he just doesn't have that "it" factor or alpha personality. Same can be said for Mino and Bass too but their 2 hour show is more of the developmental show so I'll give them a pass for now. This is supposed to be MM's dream job but so far, he just sounds like a guy happy to be along for the ride. Good news is that I'm sure everyone part of this Mid-day Makeover are replaceable or movable within a year if ratings are not good.
ReplyDeleteAs a neutral observer I actually believe the petty vindictiveness we see in the Cumulus lawsuit is personal, Dan Bennett clearly suffered some kind of narcissistic injury when Dan and Jake did not immediately comply with whatever his demands/expectations were. He clearly did not like Dan and Jake treating contract negotiations like negotiations at any point, and seemed to take Jake's later mocking very personally, dedicating pages and pages to how damaging Jake's jokes were?
ReplyDeleteThe entire lawsuit reads like an emotional rant from someone who simply dumped all of this info onto a poor young lawyer who transcribed what they said and submitted it to the Court verbatim.
That being said Dan and Jake clearly have an uphill battle on the merits of the podcast non-compete, but Cumulus would have been much better served writing the suit in a different way?
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ReplyDeleteI have seen a lot of comments about the strange nature of Dan and Jake's counsel, I would have personally used a local Dallas non-compete firm who has experience taking cases to trial. I also got my ass kicked by Matt Bruenig at multiple debate tournaments almost 20 years ago, so what do I know?
ReplyDeleteHaving someone who Actually Gives a Shit can be incredibly valuable, especially when you are going against a large firm and a junior associate who Doesn't Really Give a Shit about anything but billable hours.
If Matt Bruenig can somehow put their case in front of the right eyeballs at the NLRB, Cumulus will likely consider settling just to avoid the weird bullshit hassle of NLRB cases, which cannot be predicted.
I would bet ten billion dollars (he does not have ten billion dollars) that Dan B has nothing to do with this suit outside of the affidavit with his misspelled name. He’s effing middle management. No matter his possible hurt feelings, he doesn’t get any say in how Atlanta goes about their legal strategy with D&J
ReplyDelete@Ghostie 1133: I agree with MCC. No one other than Cumulus counsel had the slightest thing to do with drafting that complaint and application, other than giving the facts to counsel on which to base them. While Cumulus's pleadings have had their problems, some of them serious, their content has been competent, clear, and, for the most part, persuasive -- the tone is neither vindictive nor retaliatory.
ReplyDeleteHowever, I have been mulling over exactly why Cumulus's pretty good case has gone so off the rails. I and others have pointed to what we see as sloppiness and poor strategy on the part of their lawyers. And surely the failure to file a rule-required application along with the TRO application that looked to all the world (i.e., the federal judge and I) intended to seek an ex parte ruling is on their doorstep.
But sometimes, issues like the delays I have ticked off above that have been so damaging are strategies requested and endorsed by the client. Perhaps they'd hoped to get what they wanted on the cheap -- serve a cease-and-desist and wait to see if they quit; file a complaint and wait to see if they quit. Those were not good strategies, but it's at least possible that those strategies originated at Cumulus.
For the record: I kind of doubt it. General counsels and their staff are busy with other things, especially since this relates to only one station in a big network that has more serious problems. I'm thinking that Cumulus involved litigation counsel when it was clear that SD+J were going to breach their noncompete, then sought and took their advice on how to proceed. And I'm guessing that its first stop was not Dallas's Baker & Hostetler, but the rather small Atlanta firm, Wargo, French, & Singer.
It's just hard to say, but this dispute is a pimple on Cumulus's backside. It's misleading to over-anthropomorphize a corporate response to a local problem.
And I don't want to be too snarky about small Atlanta firms, at least not this one. I note that the Atlanta partner working on this case has been successful for Cumulus in the past in federal court in Texas in a radio-host related case:
"A Texas federal judge on Friday found in favor of Wargo French Singer’s David Pernini, confirming the $1.7 million jury verdict Mr. Pernini obtained for a unit of Cumulus. In a 15-page opinion, U.S. District Judge Sam A. Lindsay rejected the motion for a new trial or judgment as a matter of law lodged by Baisden and his company Baisden Enterprises Inc., which sought to overturn the jury’s finding last year that the radio host had broken his contract with Cumulus unit Radio Networks by keeping a $1 million overpayment, and had fraudulently transferred $700,000 of that payment."
So -- Cumulus has competent counsel; why this fairly standard noncompete/trademark case has turned out to be so difficult probably has more than one set of parents.
Is it really so difficult, or was there a minor setback that was immediately rectified? Maybe all the other lawyers here are significantly better than me (very likely), but I've certainly had my share of unexpected orders in federal court that required some recalibration.
ReplyDelete@Hmm: I thought my prior posts had been clear, but if not:
ReplyDeleteThe major problem here has been the repeated delays, not just the missing certificate of attempts to give notice. Those delays, in turn, were exacerbated by the failure to comply with the federal rule, which both caused the court to put things off and made counsel look bad
That order was not unexpected or a hiccup. It denied relief outright, and the error was noted here even before the court ruled. Like MTC, the judge immediately saw the problem and ruled in a predictable way.
It seems to me that the delays are completely immaterial given the quantum of evidence of imminent harm put forward by Cumulus. They were probably never getting temporary injunctive relief. And that’s not intended as a knock against counsel so much as it is acknowledgement of the facts on the ground.
ReplyDelete@Hmm: Not sure I understand. You think the "quantum of evidence" was too small for relief? Or you think they were not violating the noncompete at all?
ReplyDeleteIf "imminence" is what you think was not shown, the delays speak directly to that.
Hey -- lawyers disagree. Just want to understand why you think things happened they way they have.
Imminence is a front. I’ll go as far as to say it’s a put on, it’s a put on, it’s a put on, it’s a put on.
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This may seem counter intuitive, but the longer it goes, the higher TDZs subscriber count, the greater the damages can be shown. Try this cumulus lawyers:
ReplyDelete“your honor, with all due respect to the defendants, they’re a couple of midday talk show hosts in a sports station in Dallas. Yet in less than X months they’ve grown a subscriber base to X thousand, competing against my client with the same hosts, the same format, that they were previously employed in. They’ve climbed to the to x percent of patreon accounts in just 2 months, far surpassing podcasts like x y and z.
They claim not to be competition because they’re streaming and my client is a terrestrial radio station. But here’s data on how X percent of radii listening is now thru mobile devices. Furthermore, even though they release them at different times, listening is now shiftable. Here’s deposition testimony from My ticket confession poster X who says he know listens to podcasts like the defendants now instead of my clients broadcast. And listeners have a right to listen to anything they want, but my client specifically contracted for 6 month non competes to give replacement shows a chance to build. And a reminder your honor, defendant kemps contract specifically forbid him from podcasting or streaming for 6 months. Leaving defendant McDowell out for the moment arrguendo, defendant Kemp is clearly in violation of his contract and should be enjoined from further releases pending the outcome of this litigation”.
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Pman, I absolutely believe they’re violating the contract (with the caveat that I don’t know this area of law very well), but I haven’t seen any evidence of imminent, irreparable harm that would justify preliminary injunctive relief. Unless they actually have something real on the solicitation of advertisers front, but D&J have sworn that they haven’t done it — just saying Cumulus better have more than phone calls and foot lockers. The reply brief will be instructive.
ReplyDeleteAs it is, this seems like a garden variety breach case. Sure, you ask for the TRO and the TI, but that’s not the whole game. I’d be trying to line up my expert to prove up damages right about now.
I’m curious what the lawyers here would think if Jake had an identical contract to Dan as far as NOT including podcasts as a competing business—would that be a somewhat slam dunk case in favor of Dan and Jake as far as the noncompete goes?
ReplyDeleteI realize this doesn’t actually matter one bit because Jake’s absolutely does list podcasts as a nono. Just curious about how hard it would be for Cumulus to fight it if that were the case.
How exactly can a podcast be considered competition? On the ticket you have to listen live at a certain time, have to hear ads, have to sit thru tickers, etc. Unless you subscribe to a third party website (which is a whole other thing) it’s impossible to re-listen to any of their shows. TDZ is none of those things. Not only is it paywalled, it’s prerecorded, gets published at any random time/day, and is available on demand whenever. Its main competition is the over saturated podcast market not the ticket which has very few podcast offerings of their own. Maybe if they actually had full show pods I could see a legit complaint.
ReplyDeleteConfessors, we're repeating ourselves here.
ReplyDelete(1) It is not necessary to show monetary loss to prove irreparable injury. Irreparable harm is PRESUMED where unpermitted competition is shown (according to case law).
(2) The differences between the contracts is not nothing, but it's not much. Dan's contract defines "Competing Business" as any business the same or essentially the same as the Company Business. The Company Business -- arguably -- included the various podcasts identified in the Complaint. Dan has a slightly better argument than Jake, but it is not determinative, and he hasn't made a big deal about it in his defense, as I recall.
(3) A "podcast" can be considered competitive when, in Jake's case, he agrees that it is in writing, and in Dan's and Jake's case, when Cumulus is engaging in it at the time of termination.
And finally:
(4) There is no such thing as a slam dunk in lawsuits. You never know what a judge is going to do, or why.
I don't mind anyone expressing a view of the merits here, but I do recommend reading the filings in this case and some of the commentary in the last few postings. That's a lot of stuff, I know, but we're going over some of the same things over and over, and I need a nap.
A kindly Confessor sent me a link where you can find the pleadings without being on PACER:
https://www.courtlistener.com/docket/67666677/susquehanna-radio-llc-v-kemp/
A podcast is competition because in the binding legal document that Jacob Kemp signed, Cumulus/Susquehanna defined competing business and included podcasting and internet streaming, paragraph 1.3. Jump ahead to paragraph 2.3 “the sole employment” and paragraph 7, hereafter “the non compete”. Paragraph 7 Kemp agrees not to compete, para 2.3, unless approved by company. If Cumulus is smart, they have an email allowing Jake to do Its just banter.
ReplyDeleteC
And is that a rebuttable presumption?
ReplyDeleteMaybe it’s not but I’ll say this. When they published this months ratings Cumulus had positions (if I remember right) 1-3-4 and 9. They’ve taken a crappy signal that the last owner threw away on big band music because the signal was so bad, combined it with a rimshot FM signal you can’t hear in VAST stretches of the listening area, and taken 2 dog-crap signals and made them the number 1 radio station in the market for 6 months straight. They may not be smart, but business wise, I’m not about to call them stupid with that track record.
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Pmam- not pointing out the difference between Dan and Jake’s contracts are part of why I said Kingston and Breuning are being too cute. Their reply made much of of how the podcast is totally different than radio, without acknowledging the elephant in the room, that Jake at least explicitly agreed not to podcast as competition to TT for 6 months. I’d bet money that Cumulus’s reply will hammer that point home. I would.
ReplyDeleteC
@Hmm 253: Yes, a rebuttable presumption.
ReplyDeleteBut difficult to rebut when you've already agreed to it, or your agreement says that a Competing Business is a business the employer is engaged in, and it is in fact engaged in that business.
But the burden is on SD&J to rebut the presumption, and just saying "you didn't lose listeners," without more, seems unlikely to me to rebut the presumption.
Splitting hairs is frequently what legal arguments are about. That's what we're starting to do here, and it's not a good forum for it.
ReplyDeleteAnd Jake and Dan themselves really aren't doing that here. They're making a woe-is-me fairness argument and pushing most of their chips onto the National Labor Relations Act argument, hoping to deflect attention from the fundamental legal weakness of their defense. Absent this judge deciding to use this case to introduce a seismic change in the federal-state balance in employment law and in federal preemption (Supremacy Clause of the Constitution, Article VI, Paragraph 2) -- I don't think it's going to work.
But ya just never know. I do think chances for short-term injunctive relief have decreased owing to Cumulus's "strategy," but not to zero, and not before Cumulus spends a lot of money, and SD+J's lawyers spend a lot of hours, compensated or not, on behalf of the lads.
Pman:
ReplyDeletePlease forgive my ignorance in this area, and thanks for your insight -- apologies for missing the earlier discussion about the presumptive harm wrinkle. But it seems to me in my ignorance that at least part of the response would dovetail into the waiver argument. "Cumulus clearly didn't believe it was losing listeners because they have for years permitted x, y, and z endeavors that do the exact same thing D&J have done. And by the way, IJB was pumping out episodes in the last 6 months when the Ticket was having the highest ratings of its existence."
If I had to guess right now from what the judge has done -- and my crystal ball could definitely use some Windex:
ReplyDelete(1) Cumulus will file its reply to SD+J's response on the 17, as scheduled. It will be very effective on most of the arguments.
(2) The court will hold its hearing and her questioning and remarks from the bench will give both parties pause. She won't show much favor to either side, but note weaknesses in both cases. She might even suggest a possible resolution. She will know that Cumulus has the stronger position, but she will be reluctant to put SD+J completely out of business. Both sides will catch some hell, as she wants them to have the proper frame of mind for mediation.
(3) She will not rule on August 21, pending the scheduled mediation. She will schedule another short hearing date if the case does not settle at mediation.
(4) The mediation will take place the next day (August 22). It might settle; Cumulus probably wants it more than SD+J. However, even though Jake and Dan and their lawyers are crusaders, if they're not getting paid those crusading lawyers will have an incentive to end this case as well. They've got better things to do. But entirely possible that the parties will dig in and that will be the end of mediation.
(5) If it does not settle, the court will grant Cumulus some or all of the relief it is seeking. It's case is just stronger, and SD+J are arguing too many irrelevancies and unsupported legal theories, and have not responded persuasively to Cumulus's superior papers. (Note: Not all of their points are irrelevant, and the lads do have some defenses, especially to emergency relief (it can hardly be called an emergency at this point).) The court might whittle down the noncompete to a shorter period (as someone has pointed out above, this is permitted under the Texas statute).
If the case doesn't entirely end at this point, one side folding its tents, or the parties reconsidering settlement, it will proceed to discovery, and then the fun will really start.
Cumulus's response isn't due until the 17th, and a lot can happen between now and then.
@Hmm 322:
ReplyDeleteI don't think you're ignorant at all.
And the waiver argument is not a bad argument for them. They do have some defenses. It will be interesting to see how Cumulus deals with that.
I think part of it comes down to does Cumulus consider it competition. If Gordo asked for permission to do a twitch stream, and agreed only to do it at night, during non-prime listening hours, I’d that competitive? All the rest, from TV guest appearances, ro writing newspaper or magazine articles clearly aren’t seen as competitive to 2 guys talking “sports and all that implies”. Personally, I’ve never thought of IJB as competitive, but I think it would be pretty damn funny if a federal judge read Jake’s non compete and enjoined him from doing ANY podcasting during his non compete period.
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Subscriptions still increasing but have leveled off in the last few days. At 4,289 as of this writing.
ReplyDeleteOne little fly in the ointment here, how is Norm's upcoming podcast different from what D&J are doing? Is it because he retired and has no non-compete or is he doing this with Cumulus's blessing. He mentioned it several times on his last day on air. Was this part of his retirement deal or will he get a letter on September 2nd?
ReplyDeleteThere’s a norm video out on Twitter, he say it’s going to be commentary on a variety of things, 2-3 minutes, 5 or 10 at the most NEVER 30 minutes. (His emphasis on never).
ReplyDeleteNorm said somewhere thst he had decided to quit right after the NFL draft -so late April- but they didn’t announce it until mid June with his last day close to the end of June. I can see negotiations there to allow him to do a podcast, and to codify what he agreed to do- fill in as needed, do the draft, normathon, etc.
I’m sure TDZ is going to jump on this as inconsistent, but it’s hard to argue that 3 minutes of commentary is the same as 90 minutes of sports talk.
C
One short note about the lads' response:
ReplyDeleteJake now claims that they did not record any conversations and that their explicit claim to the contrary on the podcast was an obvious joke.
Did anyone hearing that think that were joking? Or that it was obvious? The statement in the July 20 "good-bye" recording: "The first thing that we’re gonna put out there content-wise is the full content of every single phone call we’ve had with the company . . . we’re just gonna release all of that.”
So I don't know whether to think they were joking then or lying now.
If he was joking then, it was a spectacularly ill-advised jape.
By the way: The pendency of litigation -- not sure whether that would start with the cease-and-desist demand, or only when suit was filed -- carries with it the obligation not to destroy documents and other evidence, including digital evidence (recordings, texts, emails). If they played recordings for anyone and now they can't be found on their phones or computers (which could be subpoenaed in discovery if a dispute arises) -- big trouble for the lads.
I'm frankly hoping they did not record, but even if not -- no benefit in taunting that they had done so, and a shot to credibility to say now that their claim was untruthful.
Yeah I noticed that the other day and was going to comment on it and got distracted by some other shiny object.
ReplyDeleteMaybe I've watched too much Boston legal, LA Law, Ally McBeal and Suits, but I keep hearing the depositions in my head. Cumulus Lawyer: "So Mr McDowell, you had said you recorded all your conversations with the company during the negotiations, yet when we subpoenaed those recordings, you said they didn't exist. So Mr Mcdowell, did you destroy evidence or are you a liar?"
Dan "I'm a sports comedian, that was a joke, we're having fun here, no?"
C
Hey all, its been a minute but I've enjoyed the dissection of this lawsuit.
ReplyDeleteWith everything that's coming out in the litigation...I have it in the back of my mind that TC once tried to organize the board ops, producers, and ticket ticker guys to demand better pay and ticket management may have sent a host or two in to break that up on top of exerting pressure in other ways.
I only bring this up specifically because in the D&J litigation they've brought up in that they were forbidden from discussing salary, etc. With other employees.
Am I misremembering this? Did I get Ballszacked sportsed?
TC : DnJ : Sirois : TF
ReplyDeleteEventually, the truth will out.
C, I know it's all in fun, but the show depositions are largely more explosive than reality to no one's surprise. In your example, I'd just want to get full commitment from the witness at the deposition and then spring the trap at trial.
ReplyDeleteWe ought not overemphasize Cumulus telling employees not to discuss salaries among themselves on their own time (breaks, lunch, non-working hours).
ReplyDeleteFederal law does not permit that. It is considered an unfair labor practice for employers covered by the Act, union or not.
Now, Cumulus might have tried to tell employees not to discuss salaries, and employees may have been intimidated into not doing so (apparently not), but it is not legal.
It does not appear to be a basis for the lads' NLRB charges.
I say this because Jake and Dan have mentioned it several times: Why do they want/need to know their fellow employees' salaries? Moreover, why does anyone feel the need to share one's salary? Why is this important, to anyone? How is it anyone's business other than the individual? In what way is it a "boomer" thing to not share your salary number with others? Why is it considered a good thing to share the amount one earns? Conversely, why is it bad not to?
ReplyDeleteI also don't understand this notion of an employee being somehow morally obligated to pay fellow, lesser compensated, employees monies from their own pocket. Isn't that (i) the role of the employer and (ii) an issue to be discussed between employer and employee? So it would seem that if the crux of all this is to secure better wages for the Blakes of the world, why are they doing any of this? Why didn't they merely tell Cumulus they would not be renewing contracts, sit out the NC that per their contracts they agreed to, and then started up their own business. From that point forward, they would be the employer and could compensate their employees in a way both they and the employees find equitable.
I guess I'm a dummy and just don't get it. But I don't.
The more this drags on, the less I believe either Cumulus or Dan and Jake.
Rocky Road: Because salary obfuscation and opaqueness serves to depress wages both within a company and across different companies. Harvard law school did a study once and determined there was no greater acceleration in executive salaries than when the SEC begun requiring the top 5 executives salaries in public traded companies to be published in their annual Def 14A reports. It set the stage for comparative salary surveys between executives and the explosion of executive wages. Obviously the same guys that are making these huge salaries don't want the common folk to discuss their salaries else there would likely be wage pressure.
ReplyDeleteSorry I meant to write Harvard Business School. Sorry to all the barristers for any confusion
DeleteRocky Road anything that suppresses salaries for wage slaves is bad. I don’t understand anyone defending companies over workers.
ReplyDeleteAKA FIGHT THE POWER and RATM!
@Wut
ReplyDelete"The more this drags on, the less I believe either Cumulus or Dan and Jake."
Where, exactly, do I defend Cumulus?
@David not Goliath
I understand that, but we're not talking about CFO/CEOs here. The reasons for Dan and Jakes' desire for disclosure are unclear. In no world does a board op earn anything commensurate to a host. Now, if you're talking host qua host, board op qua board op, OK. You're talking apples to apples; this is an apples to oranges case. As I said, I just don't get any of this. On either side. And again, I've never claimed to be even the 15th smartest man in the room. So there's that.
Eh, I took issue with this
ReplyDelete“ Why do they want/need to know their fellow employees' salaries? Moreover, why does anyone feel the need to share one's salary? Why is this important, to anyone? How is it anyone's business other than the individual? In what way is it a "boomer" thing to not share your salary number with others? Why is it considered a good thing to share the amount one earns? Conversely, why is it bad not to?”
The more workers know, the fight for better pay is easier. My accusation of you defending corporate was wrong. I just hate workers fighting amongst themselves.
This comment has been removed by the author.
ReplyDeleteFOLLOW-UP TO FUN COMMENT
ReplyDeleteAt 425 PM on Friday, I posted about a funny little thing that happened when I googled "cumulus general counsel," whose name is Richard Denning. Google attached to its search result a picture of Richard Denning, the actor.
Last night on Svengoolie -- you do watch Svengoolie, don't you, on MeTV? -- he featured THE BLACK SCORPION, starring Richard Denning.
@Wut
ReplyDeleteYou have confused questions with claims. There is a marked difference between the two. Besides, for the sake of argument let's say they were claims (they weren't). Your conclusion is a non sequitur, as such claims do not necessarily entail (follow) taking either side. By the very fact that I included a perceived generational bias alone should clue you into this. The tendency towards reactionary responses on this site of late is irksome. Used to not be that way. At least not as often as it's become since this last "crisis." I swear, at times it seems damn near pathological.
I’m trying to keep up with the legal stuff but can I just ask, if Jake signed a noncompete that said no podcast for 6 months and he does a podcast, what’s his angle? He signed it and knew right? Are they fighting that a noncompete isn’t right in the first place?
ReplyDeleteNew thread up, first non-Freak/non SD+J headline in quite awhile. New strawberry blonde.
ReplyDelete