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."
Tuesday, August 22, 2023
Some Preliminary Thoughts on Today's Proceedings
REMINDER: ALL COMMENTS BY "ANONYMOUS" WILL BE DELETED.
REMINDER: ALL COMMENTS BY "ANONYMOUS" WILL BE DELETED.
NOTE: The last 4-5 comments on the previous thread had some good meaty stuff, especially as regards what happens in mediations. They echo my own experiences. Might want to check them out before proceeding.
On balance, it was a good day for Cumulus. Was it a “win”? Of course, we can quibble about what defines a “win,” and in a couple of respects, it is hard to see it any other way than as a Cumulus win, and, possibly, a predictor of more wins to come. Herewith, a few thoughts, with the repeated reminder that a lot is going on behind the scenes that might change the way we look at what we see going on in public. With that caveat, a few observations:
As a Confessor pointed out in yesterday’s thread, the order that got entered looks a lot like the temporary restraining order (TRO) Cumulus sought; and indeed, it is labeled “Agreed Temporary Restraining Order.” No podcasts before the next hearing (August 29); and what amounts to a social-media gag order on SD+J until that time.
Note that the order does not prohibit solicitation of advertisers; I’m wondering if Cumulus is pulling in its horns on that particular charge, although it has said, without sworn support, that there was more than one that was solicited.
It also does not prohibit all public statements – just “social media posts and other public posts.” Presumably, the lads can still give interviews, although if I were then I wouldn’t. It doesn’t prohibit non-social-post disparagement, either.
So yes, these are good things for Cumulus. However, this order was NOT an order of the court after a hearing on the merits (by “on the merits,” I mean one where evidence and legal arguments are submitted and heard on the record). It was something that the lads and their lawyers agreed to, and perhaps (judging from the sans-serif font used, similar to the one used in their first filings) even drafted.
So I don’t call it a “win,” just a good day for Cumulus – or perhaps “a win, but.”
Why the lads would agree to this, we don’t know. Two possibilities:
The first is that they were not anxious to proceed to a hearing yesterday; for whatever reason, to bring new counsel up to speed, Dan being out of town, who knows what reason – persons on the scene reported that the lads were the most interested in a postponement. Agreeing to a week of dummying up may have seemed like a small price to pay to get the hearing kicked, and it does not mean that the court has ruled against them after hearing evidence.
The second requires us to speculate about what went on in the court’s chambers. The court may have indicated its inclination, based solely on the filings, to favor Cumulus’s position both on the merits of the restrictive covenant claims, and to disfavor SD+J’s labor-law preemption defense (the “you don’t have jurisdiction here, Your Honor, the National Labor Relations Board does”). Again, that week of silence may have seemed like cheap insurance against going forward with a hearing yesterday, and LOSING on the merits, resulting in an order BY THE JUDGE on the record, after hearing evidence and arguments on the record, not an order that the parties had agreed to – much, much worse for them.
Again speculating, it seems likely that the parties “sold” this agreed order to the court by (mutually) suggesting that some settlement would be possible. That doesn’t require the parties to settle, but it does amount to what the court considered a good faith representation by both sides that they would negotiate in connection with the mediation session taking place today.
However, at least according to one report, an attendee spoke to one of the lads’ lawyers after the hearing, who, if I’m recalling correctly, pooh-poohed the prospects of settlement and asserted that they believed they still had a very strong NLRA-based defense. If the parties come back and report that Cumulus made some offers that were summarily rejected by the lads’ lawyers because they are never, ever going to give up their federal defense, she’s going to feel like she got played in order to get the hearing on the merits kicked to the preliminary injunction hearing on August 29.
So I’m wondering – not predicting, not asserting, just wondering – if perhaps some cracks are appearing in SD&J’s united front. If the judge was indeed sufficiently skeptical that it prompted the lads to agree to a rather conciliatory agreed order, they might be wondering if it is wise to continue this case for the sake of a crusade on a very tenuous labor-law argument of primary interest to one or two of the lawyers involved.
(About that argument: If the court really had any doubts about her jurisdiction in this matter, surely she would have called for evidence on that point now, not some later time, because without jurisdiction, the court cannot proceed at all (other, as I say, than to investigate any factual basis for the claim of lack of jurisdiction, and, if the facts suggest that she doesn’t have jurisdiction, to dismiss the case). But she DID proceed without deciding the threshold jurisdictional issue, entering agreed substantive temporary emergency relief, tending to indicate she is not inclined to buy what the lads’ lawyers are selling. I hope Dan and Jake understand that; this argument, flashy and power-to-the-people though it may sound, simply isn’t worth committing radio-career suicide over.)
Will it settle today? This week? If so, will we learn the terms? Don’t know. Settlements can be confidential. If I were Cumulus, and the terms favored me, I wouldn’t agree to confidentiality terms after the self-righteous racket Dan and Jake made on departure; I’d want them on the record in the lawsuit, like the order just entered. But courts like settlements, and they’ll usually honor a request by the parties to keep the terms confidential, or, if it is filed as part of the case, to seal that particular record. But it’s possible we’ll never know, although if the podcast goes away for some period of time, and the lads don’t show up on the radio for some months, we can have a pretty good idea.
It's a complex situation: It’s not just the podcast – it’s solicitation, it’s disparagement, it’s trademark issues, it’s Cumulus’s fees and expenses, it’s Cumulus’s potential money damages. And again – lest you think the boys will hop to the Freak, I will remind you of the right-of-first-refusal clause in their contracts. Any comprehensive settlement absolutely must deal with these guys hopping to another radio station (either forbidding it for some period of time, or permitting it). It could take some time to hammer out give-and-take terms on all of these items that all parties can sign on to.
For now: Advantage Cumulus, but if it doesn’t settle, the game clock gets reset on August 29, and the parties can put their evidence on the record and the court can decide on whether the injunctive relief sought by Cumulus will continue, and perhaps be augmented, until the full trial in December.
Any guesses as to how much input Cumulus is seeking or might take from Mr. Dan Bennett as to settlement terms and desires? We know that Mary Berner is quite fond of DB per the D Magazine article from April 2019
Impression I was given was the agreed order was something agreed to before the hearing started & the Judge was irritated that the parties brought it forth at the beginning of the hearing.
Maybe D&J are now getting actual legal advice rather than “storm the barricades! This blog post says we have an amazing case.”
Also, maybe Bob & Corby made it known they were not excited about being brought up in the pleadings.
My prediction is the settlement will be confidential & the only thing we will know is D&J will STFU until sometime in 2024. And then, the PM drive on the Freak. Shocking, I know.
I know many don't want to hear this, but I'm not sure if either Jake or Dan are going to emerge from these proceedings looking so great. I believe they've been ill-advised. I also contend the ill-advice has misled them into a false sense of security, and as a result they've done and said things that will only come back to bite them---perhaps some already have.
Agreed, and I’ll use the mom game as an example. Jake’s contract says he can’t disparage and can’t induce others to do the same. I don’t remember when mom game appearance was vs lawsuit filed, but If it was after the lawsuit, him making any comment that induced Emily and Julie to say bad things about TT/Cumulus is problematic. Them letting Akaash Singh flamethrower Cumulus, inducing disparagement. It’s why every lawyer says don’t comment, because it’s going to be used against you. C
Dead bang on, in-house. All of it. Jake recently said something along the lines of "in the end we'll all be friends and we'll be thanked for it." I think he was referring to Bob and Corby.
@In-House: Absolutely agree that this looks like something the parties hammered out in advance, simply because that order was done in the same crummy font defendants' initial filings were in. This was what they brought to court with them -- it wasn't done after the chambers meeting.
@Daryl's Dragon LLC: Generally agree, as long as love will keep us together.
I still think the biggest & easiest concession to make is for Cumulus to give up the right of first refusal. The mediator will point out Cumulus doesn’t even want them back now so what is the point, really? It just makes it hard for D&J to negotiate with Freak/Fan.
Did anyone catch the tidbit that Ham has taken his full two weeks of vacay? Hmmmm. Take your paid leave, return and quit? Like the timing of Blake's leaving, it's interesting. We'll see if Ham returns. On another front, WiSP is getting better. Monty is the difference maker. Donnie and Matt just don't work. Look, I know I know Matt's going nowhere. It sucks because I love me some Donnie Doo. Yes Bob and Dan were awkward AF their first year or two. But the tension between Donnie and Matt is so thick it's palatable.
D&J can continue to podcast behind some form of paywall. Terrestrial non-compete extended to 12 months. Other typical and customary clauses (no discussion of settlement, don’t solicit existing Cumulus employees or sponsors). Let them strike out on their own and try to establish a digital presence safely behind Patreon and keep them away from 97.1 longer than their contracts stated. D&J get what they say they want, which is the ability to grow a brand outside of AM radio, and Cumulus keeps them away from competitors while establishing two new shows.
Now that the long anticipated KTCK game of musical chairs is all but over, it is reasonable for anyone and anyone without a prime seat to consider bolting. This case has revealed for all that Cumulus pays at the lower end of market for the privilege of working at KTCK. Some were sticking it out because the Norm & Rhyner retirement were forthcoming. That’s in the past now. So now the lineup is pretty much solidified, so there is no room for advancement for the foreseeable future. Might as well plan your next move elsewhere if you don’t like where you are.
Here’s my uninformed take. The advantage right now is with Cumulus. They got 2 of the things they wanted in the TRO, no more shoes and no more disparagement. And they got TDZ to make a strategic error in agreeing to the TRO. If they can’t mediate, Cumulus’s lawyers will be on there next week arguing for an extension of the Status quo, and TDZ will be the ones arguing for a change. Always harder to change minds then continue with what was going on. And I don’t think there’s any way Cumulus agreed to let TDZ continue to post podcasts, paywalled of not. Look at it this way, if no settlement and TRO stays in place, they go to trial in December and if Cumulus loses, they’ve had them off air for 5 months. If no settlement, TRO, and Cumulus wins in December, they get all of TDZs patreon money, TDZ pays their legal fees, and TDZ is off till June of 2024. I suppose there’s the possibility of no mediation settlement, TRO gets vacated and TDZ wins in December, but the TRO is in place. And this ultimately boils down to Jake’s non compete. Strip away the NLRB Hail Mary and TDZ doesn’t have a legal response to the non compete charge. I think this is the least likely scenario. C
I've been listening to The Down Beat pods the past week and change.
1. I really wish Cumulus/The Ticket would make their shows available like iHeart/The Freak does. Perhaps they will after The Situation has been resolved.
2. In no possible world does The Down Beat present itself as genuine competition for Dunham and Miller.
3. Having said 2., it's also not that bad. There are moments where I found myself cracking a smile or thinking, "nice point" or "agreed."
4. Sirois is exactly where he should be and in the role he should be in. That is, cohost/master of ceremonies/formatics fuhrer. His energy level is noticeably better than it was during p.m. drive. Nor is he coming off as manic as he often would while at The Ticket. He seems to be finding his groove. While not the voice of a generation whose departure would bring on the downfall of The Ticket, he definitely has the talent to do this for a living and do it well. Good on him. Caveat: If iHeart morphs the format to sports, he's going to be swimming upstream.
5. Pre saying that I am a Danny fan. He does a real nice job. Has some interesting, even wise things to say at times. The show is full of his handcrafted theme songs. Some are OK, some are rather forgettable. I think that well might've run dry. Helluva run, though. Danny, like Sirois, is not an on-air talent alpha. Like Sirois, he has the talent to do this and do it well. Unlike Sirois, if the format morphs into sports, it will be to his benefit and probably extend his run.
6. KT needs to produce, choose his spots, but mostly let the ball come to him. I'm not picking on the man, but he does not do this well. KT continually gives off the airs of someone who subs in for weekend shows from time to time and is desperate to be seen, make a name for himself. I don't say this mean spiritedly. It's just the truth.
7. The show needs, no, demands a genuine alpha host. Per the above, neither Danny nor Sirois are that, and KT shouldn't be there to begin with, he should be producing. I can see why they were paired with Rhyner. It made all the sense in the world and should've gone off like gangbusters. Unfortunately for them, Rhyner either wasn't/isn't interested in doing his job or has lost the ability to do so (many of you claim one or both have been the case for years now). I don't know who that personality would, could, or should be, but if the show is to have any staying power, one must be found. I can't imagine there's anyone left at The Ticket who could be persuaded to defect. (There are no JV members strong enough anymore to count, and that goes for Monty, who, while strong, is not carry an a.m. drive show strong.)
The upshot is, The Down Beat has something, but it's needs more to make it a viable option. You have two able first mates and that's a good start. It needs an alpha. It needs a captain.
@The Driver I haven't tuned in but friends who have are saying similar things. The only one at TT that might defect would be Donnie. He and McClearin are like oil and water. I could see him bolting for the shot at hosting am drive show. He'd be reuniting with Mikey and they were an awesome duo. Add in Danny and all the potential music and sports talk and damn, I'd be all over it. I love The Musers but having another option would be super cool. That's what me and my friends were thinking would happen with TF. It hasn't yet but a Donnie, Mikey, Danny am show and a Dumb Zone pm show would change all that in an instant.
* This is the most interested I've ever been in a contract case..
*I'm assuming D&J's stance is half about them, and half about the principle/fighting city hall/taking on the man
Although I find D&J's strategy too cute by half, it seems like a limited downside action, assuming they saved their pesos for a rainy day. Their worst case scenario is that they extended their non-compete by 6 months, and have to pay attorneys fees - which they could probably stretch out over time.
The Cloud's downside is probably worse in the short term, although given SCOTUS'S antipathy for the administrative state, if D&J somehow pull an NLRB rabbit out of the hat, I have the feeling it would be a hollow victory. The Cloud just wants people to sit their 180 days.
I don't see why Cumulus would agree to allow them to continue podcasting in a mediation agreement. It seems like if they gave that concession up, they would have written the playbook for getting out of a non-compete for a podcast to any host with minimal repercussion.
I notice a lot of people mentioning the attorneys' fee provision of SD+J's contracts. (I.e., if you lose, you pay our expenses in enforcing the agreement.)
These provisions are legal and enforceable.
My guess: If (1) there is a settlement, and it includes (2) Cumulus getting what it wants with respect to the restrictive covenants, and maybe the trademark stuff, it will waive the attorneys' fees, and probably all of the monetary damage claims as well.
From Cumulus's standpoint, they had to go after the lads with a cease-and-desist demand, and when that was ignored, they had to sue as an in terrorem tactic to keep other departees from ignoring their contracts. If Cumulus gets what it wants with respect to competition/solicitation/disparagement as well as some assurances regarding staying out of radio, for a reasonable period of time, they're not going to dance on the lads' graves. To get the settlement, they'll have to give something back, and that something is likely to be the claim for fees and damages.
Unless the now FOUR lawyers now on Dan and Jake's side of the table are all working for nothing, they're already suffering financially for undertaking their imaginative jihad against Texas contract law. That, combined with the restrictions on competition in the settlement, will be regarded by Cumulus as sufficient to get the lesson across. And, as I say, to get the settlement Cumulus will have to give on something.
Why do you think that? By my estimation TDZ blinked, there’s absolutely nothing in these recaps about the NLRB angle. And most if not all of their response was “NLTB preempts federal judge, you can’t do shit Sholer”. Now it looks like TDZ is playing from a weak position. Jake’s non compete is clear that they’re in violation, they clearly converted Cumulus assets (like the Twitter account, etc) to their use, and I know I’ve heard them use the dumb zone when they were the hang zone, so that’s definitely cumulus IP.
I’m not sure why Cumulus would, or would need to give up much to reach a settlement. And I’d want the financial pain for TDZ to send a warning to others thinking about breaking a non compete. Basically “we’ll come after you, cost you plenty and extend your non compete if you think about crossing the cloud”. I think Cumulus’s lawyers play hard ball here, C
You may be right. But if Cumulus is hard-nosed about every single element of their claim, there will be no reason to settle.
Please note that my speculation had as an assumption that there is a settlement. For a settlement to happen, unless the lads just throw up their hands and cave on every single thing, they have to get something in the deal. Like any other kind of deal -- but unlike most judgments entered after a hearing.
In your scenario, Cumulus thinks it's already won everything so why take less than everything?
But that's not correct. Cumulus doesn't think it's won everything because there has been no hearing on the merits. It's only won what the lads agreed to give it for a week or so. My opening comment suggests that yesterday's result was real good for Cumulus, but it was not a "win." If it was, there would be no reason to have a hearing on August 29.
And hearings carry with them -- risk. The risk of losing. The risk the court will hear testimony and not come out your way. Yes, that could absolutely happen here. I'm not expecting it, but maybe, for example, the court likes the "waiver" argument (IJB and the rest).
So to avoid that risk, parties settle. And when they settle, each side has to get something. I am only suggesting that a frequent bargaining chip is attorneys' fees. If Cumulus gets what it wants on the injunction side, what it has to give up is the monetary stuff, most prominently, attorneys' fees, since they are liquidated and known and Cumulus didn't start this lawsuit to get attorneys' fees in the first place.
If there's a settlement that gives Cumulus what it wants on the competition/solicitation/disparagement side, Dan and Jake will have pain, believe me -- the pain of utter humiliation for handling things the way they did, and for thinking they could ignore their contract because they'd been Svengali'd by some lawyers, and, quite possibly, the chance that no one, not even iHeart, will want ideologues like that on the payroll. Cumulus doesn't need to collect fees on top of that to give their employees pause before ignoring their promises.
Hey, I could be wrong -- the settlement, if there is one (and I'm not convinced there will be, depending on who's calling the tunes on defendants' end of things), could be a thorough thrashing of the lads. But most of the time, anyone seeking to impose a 100% no-win ends up with 100% no settlement, with the accompanying trial risk that they could have avoided by giving up the stuff they don't care about so much.
Hi C, Out of an abundance of curiosity, do you have a financial stake in the outcome of Cumulus legal proceedings? You seem particularly sensitive to perceived disparagement of Cumulus by any entity even tangentially associated with Smiling Dan and Jake. I apologize if you mentioned before that you are an employee. SD & J played a clip of former Cumulus employee and national sports talk host Steve Czaban bad talking Cumulus and how notoriously poor they are with their on air employees. Czaban now has a full time podcast gig and is no longer on terrestrial radio. He called out the Dumb Zone legal issues on his pod. Seems as though Cumulus is in the process of self inflicting major damage to their reputation without then need of much help from the lads.
As someone who has worked for iterations of all the current "big three" radio companies, I can personally report they all suck and are terribly run operations. Each is a slightly different flavored shit-shake.
Just listened to Matt Bruenig on the Dumb Zone from last week. He lays out the fact that simply the existence of nondisparagement clauses in a contract is illegal.
"any (nondisparagement clause) that does not include explicit language about how you can talk about (terms and conditions of employment) is presumptively illegal under the NLRA"
Says rules have gone back and forth over the years (Lutheran Heritage to Boeing to the old rule on Aug 2)
So, simply having a nondisparagement clause at all that says anything like "don't say anything prejudicial about the employer", is illegal.
Gave an example saying "management treated us like crap" is allowed. Saying "the current product sucks" is not allowed. D&J have not done that at all.
Same Bruenig whose fingerprints are all over the filing that told a federal judge to eff off, that she had no jurisdiction over anything because of the NLRB complaint? How’d listening to Bruenig on that turn out for TDZ?
And D Not G- no financial stake. I sell for one of the smaller operators in this town, although I do have old business cards with Maple, Fitzhugh, and Dallas Parkway addresses on them. C
Holy shitskis. Haven't hit the old reddit site in a bit. Made that mistake this morning. The whole lot of them are done with TT. Now that they know Cumulus practices slavery, merely listening to it now makes many uncomfortable. There's never been anyone worse in the history of employment than Cat. That and he and Dan Bennett are evil. Dan and Jake are the new and improved Rosa Parks cum MLK cum Ghandi cum Greta Thunberg cum David Hogg. They have assembled a legal team with the collective IQ of a gagillion with an airtight case that has not just The Cloud but all of corporate 'Merica quaking in its boots. And anyone who deigns to even imply otherwise is nothing but a slobbering MAGA cum QAnon cum dog whistling POS who's a moron at best, evil at worst, but probably both.
So barring a settlement between now and 12/12, does this mean the nc wait out wouldn't begin until after the outcome 12/12 hearing (if DnJ lose)? If so, wow.
haw, I was JUST thinking that today while listening to the first segment of DaM. In fairness, let's see what the next couple of books look like. But yeah, at first blush it seems like his run of nailing it might be over. The other thing I'll say in fairness is that I'm in the camp that feels the McClearin hire was an Atlanta thing and not his decision.
@Rachel I too have been watching the almost group psychotic break on the reddit page. However, I'm not so sure it's more of a few people commenting over and again using different handles and saying the same thing in different ways. I'm also not so sure that some of these same people might be employed at The Freak. Finally, I'm not so sure that a few of the how shall we say more social media active Freak hosts might not be involved to some extent, stirring things up.
DumbZone wins and can keep recording - that’s what would be interesting. Does Cumulus push to settle? Do Dan and Jake read this as a good sign and take this all the way to court?
Next few days are the only time I see a potential settlement happening. If we get to Monday with a ruling from the Judge, one side will be dug in after and want to take this all the way.
Mr.Giggles: I agree with you there. But it does make you wonder why the Freak Reddit page is so slow, maybe two new posts a week if they are spamming the Ticket page. Many of those posts have the tone of just about everything you see in R/Dallas though.
It was stated above that maybe Cat doesn't know talent due to the DaM show. I also seem to recall from previous posts that the MM decision may not have been Cat's. And, honestly, I can't recall anyone ever saying in the past that they missed MM. I think Cat would have chosen differently, but that is my opinion.
As for Donnie going... I don't see that. But, who knows. I like Donnie a lot, I could see a lot of outlets being interested. At the same time, if I am sitting back watching this nonsense with D&J and Cumulus, I am not sure I would have the energy unless I saved up and just waited things out. I would also think anyone going to TF right now would receive a little extra visibility from Cumulus.
I have been interested in learning more about labor law. I was not aware that asking folks not to talk salary was an issue. I am older, and it is just something we never thought of or considered, at least I never have. Good to know.
Two things boggle my mind, for the better part of 8 months or more, all D&J talked about was The Man and NC contracts. In my experience, even when employees make jokes about a working environment issue they have, and it goes on and on, I know something is up. And, if Cat or Dan paid attention, they should have escalated and asked for legal guidance.
Lastly, it amazes me that for Dan to do nothing the last 20 years but respond to current situations with, "It's called the way it is", to the point of fighting with Norm about football schedules, but to bow up against this.... Sorry dude, contracts are there to protect you as the employee also, and it is called, the way it is.
@Scott Prepare to be shit on in 5, 4, 3, 2.... and you're done. Injecting commonsense into this conversation is something frowned upon by a certain set. As both Rachel and Mr.Giggles have pointed out, there is a very loud and aggressive group out there. Since Jake and Dan's departure, this group has and continues to make their presence very much known here at MTC. Mind you, that does not mean just because one sides with Jake and Dan that they are aggressive zealots. Not in the least. It goes both ways. The trolling has been an egalitarian affair, with trolls purposely stirring things up and creating toxic and sometimes downright surreal exchanges. And I'd be remiss if I didn't also say that there are those who firmly side with Jake and Dan who express themselves passionately but reasonably.
Confusion over the various steps in lawsuits that ask for injunctive relief -- asking the court to order a party to stop doing something, or to do something -- is understandable. Here's a very brief primer (corrections from current practitioners welcome -- but let's keep it as nontechnical as possible).
I'll take the case of someone (defendant) alleged to threatening to occupy a home that they don't own sued by the owner (plaintiff) who wants them out. Let's say a closing has fallen through, but the purchaser defendant is still threatening to move into the home.
(1) Plaintiff, may, but is not required to, give warning to the defendant in the form of a cease-and-desist demand, threatening suit if the demand is not met. If the defendant complies, no need to sue. If not:
(2) Plaintiff files a lawsuit and in connection with that, files an motion for a temporary restraining order (TRO) that the court is asked to hear immediately (in most cases). Since it is alleged to be an emergency, the court may hear it before the defendant receives notice or is able to appear, but in such case, the plaintiff must show how it attempted to give notice.
[In this case, Cumulus filed a complaint but, as we have observed, was so unclear as to whether it was seeking an emergency TRO that both the judge and Your Plainsman thought that they were, but there was no showing of an attempt to give notice. Understandably, the judge denied emergency relief at that time. Cumulus then tried to claim that it wasn't seeking emergency relief, but it went ahead and filed its certificate of attempt to give notice.]
(3) The court may deny the TRO, finding no emergency or no likelihood of entitlement to relief after considering the record. In our hypothetical, she is going to grant the TRO. It will prohibit defendant from occupying the home for a period not to exceed 10 days, unless she extends it on motion of one of the parties for good cause shown, or the parties agree.
[This is where we are in this case. The only difference is that here, the parties themselves have agreed to a TRO, which happens with some frequency to give the parties time to sort things out.]
(4) The court will set the matter for a hearing on what is called a preliminary injunction, usually within or coincident with the expiration of the 10-day period.
[That is what the court has done in this case, setting the hearing for the 29th]
Now here we need to step back and look at the entire complaint. The complaint in our case has asked for many different kinds of relief in addition to the injunctive relief. Damages, fees, etc. That will require a full jury trial, but because that it a long ways down the road, the court needs to decide what it is going to do in the meantime about the 10-day injunctive relief it has already ordered in the TRO. The court could let it expire; order it to continue through the full trial down the road; or modify it some way pending that full trial. The preliminary injunction proceeding takes place to permit the court to make that decision on a more comprehensive record. The difference between the preliminary injunction and the temporary restraining order proceedings is that in the preliminary injunction proceeding -- unless the parties again agree on the terms of an injunction -- all parties will have had notice and time to prepare for a hearing on the merits, with evidence taken and arguments made on the record.
In our hypothetical, the judge has held the preliminary injunction hearing and granted the injunction, to remain in place (pending modifications for good cause shown in the meantime) through the full trial down the road.
(5) The full trial takes place on all issues, injunctive and damages, raised by the complaint, and all of the defenses. The court may dissolve the injunction if it finds for defendant (juries don't decide injunctions), or it may make it permanent, or modify it in some way. The jury, if defendant has asked for one, will decide any of the monetary issues.
[This is the trial that is scheduled for December of this year.]
(6) Of course, the case may settle at any point along this chronology, which may result in an agreed order relating to injunctive relief similar to the TRO entered in the present case, or not, depending on the terms of the settlement. When the case is settled, parties may voluntarily dismiss without further court action.
D&J patreon actually gained 4 followers today. I like those guys and miss them on TT but I ain’t giving them money to do nothing. For Christ’s sake, at the end of the day they were just talk show hosts….
There are many people on Reddit saying they were already subscribed but are now voluntarily increasing their monthly payment to “our boys” to show support for “the little guy” fighting the “man”. The cult of personality is real.
One clarification, Pman. I think the hearing set for two days ago was going to be a preliminary injunction hearing (i.e. evidentiary), not just a hearing on the request for a TRO. On last Friday's podcast, Dan made a funny comment about how they probably wouldn't be recording on the weekend "because apparently there is something called witness prep, and apparently it can happen on a Sunday."
What I still don't understand is what happened to derail the 8/21 hearing the morning of. Did the parties come in with an agreement ready to present to the Court? I also heard a version where Dan and Jake's counsel advised Judge Karen that they wanted to continue the hearing because of the Tuesday mediation, and she got annoyed because she was ready to go and the parties had prepared for an evidentiary hearing (a lot of work), but she eventually relented and agreed to move it to 8/29 if the parties to work out an agreement about what happens in the meantime.
If the lads spent all weekend preparing, I wonder what happened to make them suddenly want to call it off in favor of the mediation, assuming they are the ones who instigated the continuance talk.
You're correct about what happened in the Dan/Jake case. She had already decided what she assumed was Cumulus's motion for a TRO, denying it for the reasons noted several times on this site.
The confusion caused by Cumulus's initial filing (and follow-up filing which purported to "correct" the court's misimpression) continued, because, while in the normal course one would think of the 8-21 hearing as a preliminary injunction hearing as you have said, the TRO motion having already been decided adverse to Cumulus, here come the parties on 8-21 with an order already prepared for her review styled "Agreed Temporary Restraining Order."
As I also noted, Cumulus caused further confusion by styling its original application as one for a temporary restraining order AND a preliminary injunction. If you'll look at the stylings on the courts various orders, it is far from clear that the 8/21 hearing was one for a preliminary injunction and, of course, the agreed order as finally entered contained the TRO styling.
Which is why I used a hypothetical instead of the mess this particular case has become.
The Cumulus filings were all serviceable, but their inattention to detail and ambiguous styling (and delays) resulted in much more confusion that was necessary, and delayed their relief.
It's routine to set a trial date (already set in an earlier order). This one also set the dates for pretrial motions to be filed, and sets three pretrial conferences leading up to the trial date.
This does NOT mean that mediation failed, although it may have -- we just don't know. It's possible the mediator is still communicating with the parties trying to get a settlement.
And it does NOT mean that the case is not going to settle. For reasons I've set forth earlier in this thread, this case has lots of moving parts and different types of relief sought, so reaching agreement on all necessary elements could take some time.
It's not impossible to imagine that discussions have completely broken off forever, but if I were the parties I would be reluctant to show up for the next hearing and tell the court they got nothing done as the result of her reluctant postponement of (what we're now calling) the preliminary injunction hearing.
If they making progress on talks, I'd be getting a motion on file NOW asking her to extend the Agreed TRO for some additional period, before everyone shows up for the next hearing.
“The owners of KTCK “The Ticket” and former hosts Dan McDowell and Jake Kemp are close to settling a lawsuit over whether the duo’s new sports-talk podcast violates their noncompete agreement with the radio station, lawyers for both sides said Monday.
Informed that a settlement could be imminent, U.S. District Judge Karen Gren Scholer postponed until Aug. 29 an evidentiary hearing on a request by Susquehanna Radio, which owns The Ticket, for a temporary restraining order to silence the podcast called The Dumb Zone. Their afternoon show on The Ticket was The Hang Zone.”
I agree about the DMN coverage. You obviously get a FAR better understanding right here. But I don't fault the DMN. This isn't Rhyner leaving. Not Norm either. It is two midday guys who, were it not for the prominence of the station they used to be a part of, would be utter nobodies. Most people just don't care. This barely warrants a mention from the DMN.
Re the Texas Law Book quote from Charles at 755 and Legal EGL's skeptical reaction:
I don't know if TLB had a source or not.
But in my own analysis of what must have gone on, I have speculated that the parties told the judge something very close to what was reported by TLB.
Remember, this judge was peeved that the parties were not prepared to go forward and wanted to kick the hearing. The way to turn her around on this would have been to tell her -- both sides agreeing to tell her -- that they were engaging in productive settlement talks.
This report supports that supposition, and makes sense to me.
Men and women, can we put a cork on who's a troll and who isn't? Completely unproductive and a massive bore as a topic. Not deletion-worthy, but pointless.
Definitely agreed with ya p-man. Really won’t miss Dan. Would have considered it a great show if Jake stayed with the current 1-3 show in some form. Jake was one of the true cowboys fans and I liked that.
I've seen two online articles stating that the mediation was rescheduled to August 29. If so, I haven't seen an order to that effect yet.
The preliminary injunction hearing is scheduled for that date (August 29) at 9:30. I've seen no order rescheduling that, but I don't see all the PACER entries right away. Either these reporters misread her August 21 order, or there's been some intervening order.
I alluded to this on Reddit. It is amazing how wrong reporters are when it comes to covering trials.
Forever ago, I was a young associate tasked with watching a high-profile case for an interested party not named in the proceedings. I sat right behind the DMN & WFAA reporters every Day & took notes. They got the most basic things wrong constantly.
Believe the reporters are seeing the scheduling order issued yesterday, and confusing that with the original announcements of the same date. They either missed the originals or have a different understanding of the intent/purpose of yesterday's order.
This whole supposed "boot" that has still yet to drop has me very leery it will ever drop, and what is it like cumulus has some real dirt on Dan and Jake? I mean idk what could drop now that would be so bad at this point.
@CJK5H There's no boot. Steel-toed or otherwise. That was some ding dong. Evidently another ding dong has taken up the mantle. Actually it now looks like ding dongs are in on it. How that floats one's boat is beyond me, but uh yeah.
@Sew A. Moose I heard a nugget at my Cheers this past Sunday Funday. One of my fellow barstool athletes happens to be business adjacent to the local media scene. If what he said is true, you better believe we ought to hold onto our tuckuses. I didn't place too much into it at the time because frankly this person has said a lot of things Ticket related over the years. Most never panned out. Some did. Including Rhyner starting TF. He told us 3 months prior to Whitt that Rhyner had something huge cooking and that it basically was going to be The Ticket 2.0. So that one was true. Don't know why, but my gut's saying you aren't trolling. Wondering if the nugget I heard and your admonition are about the same thing. If so then it's shit meet fan all over again. I'd say in a way bigger way.
Gotta say, @Oktoberfest, I've seen coy phrasing like this many times on this site by people claiming to be, or know, an insider. It's usually bullshit.
OK, dude. I guess the newer, brasher breed of MTC commenters have rubbed off on you. Prickly f.
Let me lay it out for you. What did The Freak recently do? Switched up their lineup. Their strongest show is now am drive. You follow so far? Is it Musers good, nope. But it's already better in a few short weeks than The FAN and many other morning shows. It'll only get better and who knows maybe they'll add another piece to it making the thing even stronger. My barstool insider says there's very few secrets in this business. For example he said everyone knew something was up with Rhyner and Sirois. Didn't know exactly what but knew they were up to something. This included The Ticket bunch. The new pd at The Freak made those moves because he knows there's about to be a seismic shift in the am drive landscape. Care to guess as to what form that takes? You got it. The Musers. So there ya go, dude.
By the way. The Darren Hambrick name and the what do voluntary comment just blew past you, huh. He's a former Cowboy who said that during a presser. It's been a staple Ticket drop for a decade now.
I call BS. Maybe not. But, hey, there are “no secrets in this business.” And one of (or all) the Musers are leaving. And yet there is a parade of people walking out the door.
That doesn’t make sense. Does it?
It’s a game of musical chairs at the (checks notes) most popular radio station in a top 5 market. One that has a history of promoting from within.
And we are being told the music hasn’t stopped. Maybe. But if one is employed at said station and there are rumors the music hasn’t stopped, are you quitting the game? No. Only an idiot would not wait until the music stops and all the seats taken before bolting.
I dare say that even Dan & Jake wouldn’t leave KTCK if they thought a spot in AM Drive at KTCK was going to open up.
I’ll say one other thing. Better think twice before you retire. Rhyner found out in retirement that you just aren’t as cool when you aren’t on the radio. Concert tickets are a little harder to come by; people don’t rush to answer the phone or return the text; and nobody really needs your opinion on anything.
Can’t rule out musers leaving but if they planned on doing it, I thinj Dan and Jake would’ve stayed for that spot regardless if cumulus pays for aux cords or not.
Also, why does musers retiring mean the freak is now gonna try harder? I think if they thought they had a chance at better ratings, they’d do it regardless.
It's not a question of trying harder. It's seeing a possible opportunity to make inroads. It's also seeing what you had wasn't working like you thought it would and trying something new with the talent on hand before trying something new with new talent.
Look, this is what I heard from someone media adjacent. I'm not saying it's definitely happening.
Yeah I also call BS on the musers leaving rumor. The Freaks ratings were to channel Big Bib Wilonsky “terrriiibbllleee”. So if I’m new PD and I look to make a change, what pieces do I have to try and build for the future?
Dude already failing in AM drive who’s never been more than one dude in a multipart show? Girl that’s already failed in AM drive, who is clearly nothing more than a bit player? Other dude failing in AM drive, who’s nothing more than a glorified producer?
The midday show that has failed to draw good ratings at FIVE other radio stations? The retread retiree who has already quit radio once and who, by all accounts, mailed it in his last 3-5 years at his old job?
Or do I combine the 2 guys who at least have been on successful shows before? Combine 2 guys who at least have a shared background where a good slice of my audience will know who both of them are.
I don’t think putting Sirois and Balis in AMD was some brilliant move because they know the musers are quitting. It’s a desperate recombining of ingredients trying to create a dish that listeners will sample, like, and ask for more. Cavanaugh Julie and KT were regularly in the mid to low 20s in the ratings. You have to try and fix that. And it’s always easier to rearrange deck chairs then go out and buy new ones. C
I could have sworn I heard Wed that Doocy would be in Thursday, and Junior would be at Choctaw on Friday. I am not hearing Junior, but I am also not hearing where he might be. That is odd. Maybe they have to mention it for scatter shooting.
Given all the unrest, if it were something simple, they would have mentioned it, even with Fernando out, they mentioned he was ill.
Probably because they’ve gotten a better lawyer than Bruenig in to read the contract and are waving Jake off IJB for that lovely phrase “out of an abundance of caution”.
It’s possible that Jake wins in court arguing that Cumulus waved any right to complain about IJB by allowing him to do it while he was employed.
And it’s also possible a good lawyer sat him down, read his contract to him, explained the big words, and pointed out Jake, and only Jake, signed a non compete promising not to do competing podcasts for 6 months after the end of his contract.
Is IJB really competition? I can see an argument being made that Cumulus was willing to allow it while he worked there, but clearly sees it as a violation of his non compete the moment he quit. Is that a winning argument? IDK. But how much money is Jake willing to risk to find that out? C
Musers aren’t going anywhere. The 2023 bunker: the three Musers, the three Hardline, and Donny.
George and Junior are pissed. Corby is pissed. Bob is heartbroken. Gordon? He laid the rhetorical trap: I’m paraphrasing but he said, twice on air, that Dan and Jake told the bunker boys that they would not compete on radio. Gordon couched his feeling about them leaving as “they promised they wouldn’t compete with us, so we wish them the best.”
This is because Gordo knows they are lying. How to justify turning your back on folks? You tell a liar as long as you don’t lie to me, knowing they are lying to you.
Poor, I agree. Plus, Musers and Hardline are definitely looking at this as their life's work. They're proud of it and aren't going to intentionally set a torch to it. Even if one or more were contemplating retirement in the near future before, I think the last 6 months have squashed that and they're in bunker mode.
Junior said on Tuesday that he would be off Thursday and Friday. Gordo was playing it up because Gordo wanted to stir the pot. Because that's what Gordo does.
I don't know what was allowed or maybe just ignored while Jake worked at Cumulus, but I do think that if Jake had just stuck to IJB during the noncompete period, he may not be in this mess. I could be wrong, Cumulus is a business, but the dumbzone was much more in your face than IJB as far as competing podcasts go.
D&J filed for and received an extension to file an answer to the complaint until 9/5. Seems relevant to me because maybe they don't want to have to admit or deny specific allegations right now, perhaps because settlement negotiations are ongoing. The motion also states that the parties "began" mediation on Tuesday, so perhaps it extended out longer than that.
I believe Poor and Friendly are on track. I'm not sure what Sew A. Moose is referring to, but something tells me it's not someone leaving The Ticket, but rather, something coming down at TF. I also believe Sew A. Moose is So Anonymous, aka Sirois.
Now, could part of an in principle agreed upon settlement between DnJ and Cumulus entail sitting out the nc but also being allowed to announce their future plans, those plans including pm drive at TF (reunited with Julie--even for a short time, Rhyner before he permanently signs off)?
I say this because suddenly, DnJ and the public faces of their legal team are behaving in a way that you'd think they would've all along. That is, as if this was a serious matter with potentially serious consequences. Up until a few days ago this wasn't the case. Again, that attitude seems to have, ahem, ceased and desisted overnight.
Pure speculation on my part, for sure. But taking into consideration all that's gone down (including the odd reshuffling at TF), it might have legs.
Re the Musers: They've been at it for almost three decades. The way will come when one or all of them will hang it up. I assume that is not Oktoberfest's friend's news.
That day, in my exalted opinion, is not within ass-clutching proximity. People have been predicting the departure of one or more of these guys for the last ten years.
Now: The Freak: I'll believe anything. Meet the new boss, not the same as no boss.
DnJ: This order extending the date to answer (NOTE: the formal "answer" is not the same as the response to the TRO/PI application that SD+J have already filed (twice)) is consistent with our prediction on this site that the in-chambers meeting last week featured representations by both sides that real progress was being made on settlement, contrary to the dragon's-breath saber-rattling (to mix a metaphor) of one of their lawyers.
Next motion may be one to extend (1) the agreed TRO and (2) the August 29 hearing date, which is coming up fast.
Yes, I can convert... I had not considered other outlets requiring a boot. That is interesting. Whether from TF, OR possibly other random unrelated sports media outlets.
In my awesome world view, Doocy would start doing Fridays, right after E-brake, for a few hours. See where it goes.
Whomever said that KTCK was life’s work for some of the lads is spot-on. For others? They thought it would be. They had it or were within arms’ reach. But pride is a helluva drug.
So no one, with the exception of Jake, with a successful radio career after working with Dan? And Jake’s one career success is a sum total of 3 years co-hosting experience WITH Dan? I wonder how much of the ticket success is lightning in a bottle? The sum being greater than the parts, etc. I’m not a Mcclaren fan, but I’ll give him credit for success outside the nurturing biosphere of the little ticket. How many of those listed above have had radio success post ticket?
i'd say jake had more influence on dan and that bob had far more on jake. julie had already been in the business years before being employed by the ticket. has, more aptly, can anyone instruct tc on anything? i'd say no. grubes cut his teeth with norm. so i guess there's blake?
Other than Gordo, it's pretty much all lightning in a bottle. Right place, right time. 'Know your worth' always seems to imply you're worth more. Maybe sometimes it should be "hey, this is a pretty sweet gig".
@WilliePep Agreed. It goes for us listeners, as well. Having The Ticket in our lives is pretty sweet. Anyone who's lived outside of this market for any period of time can tell you this. Those who only know this market have no idea just how awful most every sports/guy talk station in every single market is outside DFW. It's that way because we have The Ticket.
I wish nothing but the best for Dan and Jake. I also wish they didn't choose to leave. But I also believe they will come to regret their decision. As you say, WilliePep, "hey, this is a pretty sweet gig." I'll go a step further and say it's a singular, magical gig.
I’m going to slightly disagree about the sweetness of the gig. For us, as fans, it would be. Clearly though given the number of long time employees of the station that have chosen to leave in the last couple of years it is not as sweet a gig as we’d think. Something, be it professional or personal, poisoned the well enough that it as no longer sweet enough to keep them there and leaving with all the possible outcomes was worth it. I don’t believe that anyone that left didn’t take the time to consider what failure would mean to them. Yet they still all choose to risk it and leave the mothership. This isn’t an evil cloud post and don’t see good guys and ba guys in this, but there must be something that’s not right at our little ticket.
Rhyner retired, unretired, claimed he was 'marginalized' when it was clear to all but the most ride or die fan that he'd been mailing it in since before Greggo was fired (since around the summer of '06, let that sink in).
Jer (identified as Jer at the time of his departure) left for personal reasons and is no longer in the industry. Has Tweeted on many occasions that he loved The Ticket and everyone there.
Julie, Sirois, and Danny left to eventually take up hosting gigs. Gigs that they knew would not be afforded them at The Ticket. Perhaps either Danny or Sirois would've gotten one after Norm's retirement. We'll never know. Julie was and still is in no way qualified to be a host. This shows on a daily basis. The main takeaway here is that they had all hit their ceiling at The Ticket and decided to move on. None of them were weekday hosts. None. (Obviously this includes Jillian.)
This can be applied to any other JV who has left. If you've been a long time listener, you know that JV come and go. Some made a deep impression while at The Ticket and then moved on. Support staff leaving for jobs in other markets, other lines of work, etc., is normal. There are finite hosting positions, which is what most if not all support staff are seeking, and playing the waiting game IS the game of this particular industry--at least for most employees.
Thus far we only know Dan and Jake's side of the story. Let's see how this plays out and if more of the story from both sides emerges, giving us a clearer picture before we can say there seems to be something rotten at The Mothership.
Conversely, for The Musers, Corby, Donnie, and Bob alone to still be here after all these years (specially The Musers) is almost unheard of in this business. Add in the longevity and loyalty of Sean Bass and even to some extent Davey. As it stands, that says a lot about The Ticket and its environment. Can and do things change? Of course. And they might have changed or are changing. But turnover is normal. What's not normal is what we've witnessed with The Ticket. Right now it sort of has that every favorite celebrity is dying vibe you get from time to time.
I think the problem is the Ticket is/was special because of the entire lineup and how it worked together. Yes there are time slots and shows but because they are so intertwined they made each better which is unique. But like I said it is all about the money. Jake and Dan were more than their time slot but when it comes to getting paid it sounds like it was the station paid like an regular radio station thinks of a time slot. I think it would be hard to stay if you feel like you are contributing like other employees but getting paid differently. Just my take.
I should clarify my 'pretty sweet gig' comment is in regard to weekday hosting. Guys like Sirois and Danny have different circumstances. One is a new dad, the other at that age where you start wondering how many more new beginnings are available at that stage in life. I doubt they leave a host position, ala DnJ. Or at all without Rhyner recruitment to a new opportunity.
Agree with Marge on the JV, that's always been there. It's just magnified by this entire new 5 hour block due to Norm's retirement coinciding with this DnJ play. For various reasons Friedo, Bascik, Arnett, and Gribble all came and went during those time slots before Sirois and Blake.
And there was Followill, Kevin Scott (who at that time was an up and comer a la pre host Jake who everyone thought was the annointed one), TC, Rocco (Varsity who imploded on air at Gordon's prodding and whose attitude did himself no favors was also openly undermined by Rhyner), Psycho Dave, and don't forget Expo. Please, whatever you do, don't forget Expo. He was the OG Grubes. If not for Expo there is no Grubes and the board op position isn't what we've come to know and love (drops, etc.). Oh yes, then there's the actual star of the station, and it wasn't even close, from damn near day 1 until his firing in 2007, Gregg The Hammer Williams.
At the end of the day, it's the hosts. The handwringing and dire predictions after Sirois's (and inexplicably so regarding Julie's) departure were laughable and proved to be so. The Invasion numbers alone were never higher after he left. That's not a knock on Sirois, at all. It's about the shows. It's like Out of the Demo said, the way the ENTIRE show day works together is what makes The Ticket special. The Freak and The FAN also show mix, but for whatever intangible reason it's not the same. Neither have that seamless flow.
Like WilliePep said, lightening in a bottle. Has the magic spell been broken? I have to admit that all important bridge between am and pm drives is thus far swaying, and dangerously so. The Donnie and Matt pairing is off and there's no getting around it. I'm not sure if time fixes it. Matt was somewhat a medium size deal in the small-mid size city of Birmingham. He was because he basically took aspects from certain Ticket hosts (esp. Gordon) and added them to his own brand of oversharing and love of craft beer, pub trivia, and karaoke. He can't do the former here and that's an issue. Mino and Sean with Monty as the de facto 3rd while far better than DaM still has a way to go and I'm not yet convinced day/week/month/year after day/week/month/year of Sean and to some extent Mino is anything more than Ok filler. Right now there is no solid bridge and I'm not sure if there ever will be again, which isn't a good thing. Specifically for The Hardline, and on the whole for The Ticket and the concept of the P1. What ends up happening is piece meal listening in lieu of having the dial set on one frequency all day, every day.
Poor the Legend, I believe, is most likely correct in saying The Musers and Corby are pissed, and that Bob is heartbroken. All know that when Dan and Jake left, so too did that seamless flow, that ineffable vibe, that lightening in a bottle. And for reasons, rightly or wrongly, they neither agree with nor understand the genesis of the reasons.
"What ends up happening is piece meal listening in lieu of having the dial set on one frequency all day, every day."
This is what happened to me after Rhyner left... I was a 6a-10a; Noon to 7 guy... And then Rhyner left... And then 2020;and all that entails happened and I just couldn't bring myself to listen as much... Not to get too political, but 2016 and 2020 just broke/ altered so much entertainment for me, and huge chunks of The Ticket were implicated as well...
Bringing it back to sports - I'm basically like Bob after Favre left. Rooting for the team even when some of my favorite players have left in various levels of disgust (BaD radio with Jake was my favorite show by far since I started listening in 05/06; could not get on board with the Hang Zone try as I did). At some point though, probably when two of Gordo, Bob, or Jub leave, I'll be the annoying guy who used to wear a Heat LeBeon jersey and now has his Lakers one...
To file an answer in Federal Court you have to admit or deny each allegation in the original complaint. You can't just file a general denial that says you deny the lawsuit like you can in State Court.
First, this type of pleading costs a lot of money because it takes a while to complete. So there is a few hours of paying an attorney to avoid if they settle.
Second, the full answer denying or admitting each allegation could result in more of the disclosing the dirty laundry to the public that D+J were trying to prevent by trying to mediate the case before the TRO/PI hearing.
The extension for the answer was just trying to put it off to try and settle.
Interesting that SD+J did not list Bob or Corby, who were alleged by them to be present at the meetings upon which they're hanging their unfair labor practice charges and jurisdictional argument (NLRB).
They list the Eatzi's and Alamo guys as testifying about "Plaintiff's sales practices," which would not seem to be at issue here. I would have thought they would be testifying about the solicitation allegations.
Does this mean no settlement? Not necessarily, but it certainly means "no settlement ready for at least a handshake as of the time of this filing."
Yeah, the plaintiff sales practices don’t seem at all applicable to the issues before the court. It still seems to all pivot on Jake’s non compete. And no matter how bad, high-handed, ham-fisted, etc the tickets sales practices are, can someone explain to me how they relate to anything in Dan and Jake’s complsints or Cumulus’s original lawsuit?
In fact, it makes zero sense for Dan and Jake to call witnesses about the solicitation charge. All Romo and the other guy can testify to is that TDZ didn’t solicit them for advertising. That doesn’t prove they didn’t solicit others. And I just went back and reread the Cumulus complaint. They don’t name an advertiser. How dumb will TDZ look if they get Adam Romo on the stand to testify that he wasn’t solicited by D/J, only to have Cumulus intro different advertiser? C
I'd love to see how Dan and Jake handle cross-examination. They will not have gone through a deposition to get used to it.
If they're prepared well, they'll keep the snark to a minimum (like zero) and answer questions briefly and truthfully.
If they're in sports-comedian/worker-jihad/smartest-guy-in-room mode, and if Cumulus's trial lawyers are competent, they could appear evasive and convey a poor impression to the judge on their credibility.
I'd like to hear from our federal litigators, but I'm a little surprised they filed this list in the first place. Did I miss it in a prior court order? I don't believe it's a requirement that witness lists be filed in advance of a hearing like this -- such lists usually must be disclosed before a full trial, but again -- would like to hear from a pro.
If they weren't required to file it, then filing it does nothing except assist, at least a little, in Cumulus's own preparation for the hearing.
@Out of the Demo: Well, that depends, of course. I believe at least the Eatzi's guy was at the first hearing, so Cumulus already knew about him.
And I get the idea that Alamo -- not sure about Eatzi's -- no longer advertises on The Ticket.
And unless Cumulus has some reason to believe they're lying, it may not cross-examine them at all. Remember, there has been no discovery in this case, so no one has any phone records or other inculpatory or exculpatory evidence other than oral testimony, documents/computer records in their own possession, and affidavits. "Dan and Jake never called us, we called them, we swear." Cumulus isn't going to say "you're lying" without some reason to think they are.
Does Cumulus have other advertisers who will testify to the contrary (i.e., the lads did contact them)? We don't know.
Finally: If their testimony is the difference between winning and losing (doesn't seem like it here) -- you bet they'll cross-examine their own clients.
But what would they cross examine them about? TDZ are calling them to testify about Cumulus’s sales practices. So let’s say Adam Romo tried to cancel his contract once Dan left. And Cumulus wanted to hold him to his contract. (An aside- many regular advertisers are in what we call annuals- you agree to spend x per month, or X per year, x amount in x number of months, etc. and if you agree to spend X per year, station will cut you a deal, take Y % off as a discount, bonus you spots, bonus weeks, sponsorships, etc) Let’s say Romo wanted to cancel and Cumulus held him to terms of his contract, I’m not sure how that helps TDZ in their case. They’re not suing Cumulus for their sales practices. I agree, Cumulus probably doesn’t want to get cross ways with an advertiser, but I’m just having a hard time understanding the relevance of their sales practices to overturning a TRO that’s based on non compete agreements. C
Only thing I can think of re: Eatzis would be if D&J have discussed funding their new venture with them, and their approach is different than Cumulus, it could go to whether their new venture is competitive in terms of advertising sources. I.e. if Eatzis gets up there and say we decided not to advertise with the ticket before D&J left because we didn't want to do the required annuals anymore, but when we reached out to D&J and all they offered was a per play rate/a la carte pricing. D&J show that, setting aside listeners for a different format of presentation, they aren't even competing on the advertiser front.
Not at all a strong approach, in my view. But its perhaps something.
Annuals aren’t required. Call the station I currently work for tomorrow and I can sell you spots. You’re just going to pay a lot more. And if you read Cumulus’s reply, they focus not on radio vs podcast difference, but that both are competing for audio listeners. I don’t see how Eatzis saying they were considering sponsoring TDZ podcast just because it’s a different format helps TDZ. I’ve harped on Jake’s non compete, but there’s non solicitation clauses in the D/J contracts also. C
didn’t someone in one of these threads say that D&J no longer working at KTCK released them from their contract? It was a car dealership I believe. I know nothing about advertising contracts of course so have no idea if you can even do that.
Well, Eatzi's guy is D&J's witness, not Cumulus', so I don't find the contents of Cumulus' reply as particularly informative on the question of what testimony D&J are planning to draw out. D&J may gauge their competition argument - as to the listener- is weak (as do I). Perhaps D&J have offered a sole sponsor for the whole show, or some other unique advertising structure. If there's a difference in their respective approaches, then it might make sense to stress it tomorrow at the hearing.
And as I wrote, I don't view it as a strong approach. But I can't think of another angle for calling him as a witness from here in the cheap seats.
It's called: Throwing shit against the wall to see if any of it will stick. That's your Labor Dram Team--or whatever that person dubbed them--for ya. Where are all those people, btw? Maybe I should say, where's that person with the different handles and thinly veiled differing styles of expression.
Yeah, you hear that, C minus?!?!?!?!?!? Javier's not foolin', either. Now I'm sure you're awfully steamed at Javier for that pointed jab. But he has a point! How DARE you come at this situation from a common sense angle! You dirty rotten scoundrel you.
And accuse me of carrying water if you want, I predicted that Cumulud would get the TRO. Very close, both sides agreed to an order that was what Cumulus was asking for. This may be more carrying, but Cumulus is getting what they want right now, no new TDZ episodes. Dan and Jake don’t appear to be getting much out of this mediation right now. So if they had a winning argument, I would think they’d be itching to get to court to overturn the TRO. But instead, more mediation. I think TDZ have realized the problems Jake’s non compete causes them. And they’re trying to find some sort of compromise. C
The reason I default to ratings is that so much criticism is subjective. For all the faults with Neilsen ratings, it’s an objective measure we can all look at. For example, when people say things like “Ben and skin are a more interesting show than Norm and Donovan”, we can look at ratings and see while that may be an opinion, objectively, per Neilsen, a lot more people prefer Norm and D to B&S., C
Let's see here. Don't want any public airing of certain things because, you know, that could get uncomfortable. Narrative incrementally changing. Ever more moves made for more mediation. Yet. The goal is, what is that again? Oh yes. Labor Crusaders, fucc The Man. Sorry, was rather skeptical at the onset, now I'm flat out not buying any of it. The Fellas were misled and that old bastard hubris took the helm.
Well, Brideshead Revisted Man, the fellas might have been misled, but one of the fellas is on the downhill slope of middle age, slouching toward senior citizenship, while the other is about to embark upon middle age. Kids, they aren't. Neither are they nexperienced in how the world in general and their media world in particular. Whatever the outcome here, win or lose, they are the master of their domains.
Two thoughts about the latest order cancelling tomorrow's injunction hearing.
(1) Earlier in this thread I speculated, based on nothing but my ass, that the SD+J team might not all be on the same page. I'm still wondering. They file a witness list that looks like they're rarin' to go, and now, the mediator has requested more time. The mediator would not do this without the agreement of the parties, so we can assume that there's still talking going on.
(2) Nothing in that electronic order says anything about extending the Agreed Temporary Restraining Order. Without a further order, it will expire tomorrow (August 29). Perhaps the parties have a separate agreement, off the record, to maintain the current status quo until the reset hearing (or settlement).
I'm usually fairly understanding of references, but the Brideshead metaphor is whooshing right past me. Yes, I do know the book. Anyone care to advise?
You got this commenter who goes by both the name of Zulu and Charles Ryder who likes to bully a particular frequent commeneter, Rocky Road, who, while I don't necessarily agree with its somtimes douchey opinions, I have to admit comports itself in a how shall we say anondyne way. Now. This Zulu shit keeps small town I took 2 post grad courses from TWU and I KNOW PROSE GODAMMIT shaming this poor SOB Rocky Road for deigning to either post comments with not enough paragraphs or for even existing. It must be said that you, Pfart, only last week, intervened and yelled STOP. FULL. STOP. STOP. It did. Good on you for finally policing something other than the now anomalous anonymous comment. Brilliant on you. Anywho. So. This poor bastard, Rocky Road, has the TEMERITY to post another comment. Next thing you know, there's a not so veiled ad hominem, ya know, the thing you said NO NO NO NEVER about, by a certain Charles Ryder. Charles is the protagonist of Waugh's Brideshead Revisited. Put 2&2 together. Ryder is Zulu. From that point forward, all I can guess is that Rocky Road decided to "fight back" by countering with pithy comments "made" by characters from the Waugh novel. If you doubt Zulu's fuckface involvement, look no further than his sudden commment re: loving the Waugh refs but pondering aloud, "say gentlepersons, aren't there other works of his we can discuss?" Or some such. Yah, you bet there are, Zulo/Charles Ryder. Why don't we begin with the Sword of Honour Trilogy? Since you're the expert, bear out for us the impetus of Crouchback's final act. Was it suicide? Was it folly? Tell us? Tell us? You. Zulu/Charles Ryder/Cyber Bully, tell us. Won't you?
I did hear several EATZIs commercials Sunday during WIP. I haven't heard anything from Alamo. Although, I use the app and FF when I can through breaks.
Alamo is listed as a former advertiser in D&J's witness list. They've shifted their spend to the Freak. Eatzi's continues to advertise on the ticket.
Also is it so far-fetched to think that dropping that list was a tactic (perhaps just one of several) that caused cumulus to request more time to mediate? I doubt either side is foolish enough to piss off a federal judge by asking for yet another delay if they don't genuinely believe they'll come to agreement.
I agree, you don't cancel and emergency hearing and think you can get it back on the docket anytime soon or if you do get it reset, don't plan on winning your "emergency" hearing when you have passed on it twice after the Court already prepared for the hearing. The Judge will think your emergency isn't so emergent.
I once had a judge refuse to set an emergency hearing unless life or liberty was at stake. If it was neither of those, it wasn't an emergency.
I would imagine Cumulus knows this and the parties are close to settling and are just ironing out the last few issues
@Friendly Reporter: No rule that a settlement has to favor one side or the other. Usually, they don't, or there's no settlement. If this podcast IS the result of a settlement -- which I kind of doubt -- it may be one that, for example, allows podcasts but prohibits them from working for another station for some period of time.
The fact that there was a TRO favoring Cumulus doesn't have a ton of predictive value as to what a settlement might look like.
My guess: If there is a new podcast up today it would have more to do with the lads thinking the TRO has expired than that there is a settlement. The wording was that the TRO was to last "until" today, which arguably means that it's expired as of today, so the podcast would be OK.
Plainsman: I agree, and often settlements are mutually distasteful. But if a settlement by Cumulus permitted D&J to immediately continue podcasting and prohibited them from heading to terrestrial radio, it would make the entire exercise look a bit silly, since it was initiated when they were podcasting and not broadcasting on terrestrial radio.
I also doubt that there is a settlement at this point, but I am baffled by the behavior of both sides based on what we the public know. Dan says another podcast is coming. While the agreed order has expired according to its terms, immediately commencing the complained of activity during supposed settlement negotiations is at a minimum quite a bit of bad faith to the mediation process and would harden my heart against settlement if I were Cumulus.
But I am most surprised by Cumulus simply permitting the agreed order to expire and agreeing to punt the hearing again without seeking any further protection from the court. Now it's basically like the last week didn't happen.
Where are we seeing a podcast? What I saw was a post from Dan with dude from the Wire “tell them we back up”. Doesn’t mean we’re getting a podcast. Could just mean settlement has been reached and they’re out of the TRO enforced legal limbo. And I’ll just say this, for 2 guys who came out guns blazing to take this to court, TDZ must have blinked if a settlement has been reached. Going to be interesting to see who gave up what to settle. C
C minus, Dan captioned that photo with "Coming later today..." and Jake responded with "there's just too much ryder cup news. JT?!?!?!?". We're definitely getting a podcast today.
A new podcast is the only thing that would be relevant to his followers in context of 'we back up'. You're free to wait until it's posted, but it's obvious that's what he means
Maybe it was Cumulus shitting bricks about the possibility of an unfavorable NLRB hearing, nullifying the noncompetes of all of their on-air talent across the country.
This board seems to have a real failure of imagination surrounding any developments that don't look like a clear-cut advantage to Cumulus. Most recently in the idea that the advertiser witnesses couldn't possibly have something to add or that it's nonsensical that a podcast might go up today.
People with far, far more information than us know what's going on here. It could be that they're doing something extremely negligent, but it's far more like that there's a plan that you just aren't in on.
It could be that the advertisers wanted to sponsor a host's podcast as part of their agreement, and Cumulus said they couldn't for a reason that is beneficial to the defense. It could be that the podcast is starting back up, or it could be that the settlement lets them do a final show for 1-6 months to explain to their paid subscribers what's taken place.
I'm fine with all the speculation, but making firm value judgements on tea leaves seems exceedingly strange to me.
Serms like the same person keeps commenting unfer various names. Usually following their comments with an atta boy fof their own doing under a different name. Kind of a give away, FYI.
Whatever.
Charles and all your orher handles, your comment is one gassy non sequitur. Seen your handiwork over at reddit dumbzone, btw. NB to all. If you think reddit ticket is funny, go sample reddit dumbzone. Hilarious stuff. Oh, and they hate this place and most especially C minus. Don't you, Charles.
I’m a longtime lurker, first time commenter. From my perspective, this board is equally biased against Dan & Jake as Reddit is biased in their favor. From the “smiling Jake” nickname to the way every move is painted as a win for cumulus. There haven’t been any wins yet, it’s all speculation. And there’s nothing wrong with wanting the cumulus corp to win this in court, but just acknowledge your biases.
This blog is getting worse than reddit FFS. It looks like one person listing under multiple names going after people. I just want to come here for unbiased banter and it’s getting worse than what facilitated non anonymous posting.
My goodness, what thin skin. Speaking of weaknesses of this board, any time two people agree the other side accuses them of multiple accounts. I like the legal analysis I can find here, even though I don't especially agree with the slant of it - I find the lack of agreement useful.
But for the record, I don't need the attaboy, and I don't post on reddit. I've posted here twice, once to post the Texas law blog article about the case, and once just above.
I'd invite you to engage with the actual content as opposed to brushing it off though - it was hardly critical of this board or anyone here beyond pointing out a *potential* blindspot.
It's hilarious to me that whenever someone comes in here to call out what appears to be pretty obvious bias against D&J that the knives get whipped out immediately. D&J are alternately morons who've been led astray by bad lawyers or morons who are on some crusade destined for failure. Or Jake has been somehow misled by Dan because of course he couldn't make this decision on his own for himself as an adult. Or Cumulus has them dead to rights. DEAD TO RIGHTS I TELL YOU!
But Occam's Razor would seem to be pretty straightforward. D&J filed an NLRB complaint before being sued by cumulus. The boys agreed to not podcast for a week (during which Dan was basically unavailable anyway) and stay off social media for a week (social media being pretty distasteful to both of them anyway). Now those restrictions are expired and the only explanation is...they screwed up or are about to? Jesus, folks. So many of you decided so long ago that You Knew What Was Going To Happen. And now you're going through major mental gymnastics to fit current events into What You Knew Was Going To Happen.
Simplest explanation? There's a settlement. And if the guys are podcasting, Cumulus folded like a tent under the likelihood of current and former advertisers telling the public how badly they want to spend their money elsewhere AND WHY. They were going to hear current leadership either admit to breaking laws (telling them not to collectively bargain or discuss compensation) or lie to a federal judge. Both central tenets of cumulus's argument. Both without merit.
I ain't on Reddit. I come here because there's often early truth to talent changes and the like. But this event has exposed that, while MTC is lightyears better than Reddit, it's either biased in a massive way toward cumulus or driven by guys who need to be right the first time despite a ton of evidence to the contrary.
They lost those subs because the first month anniversary just passed 3 days ago on the 26th and I'm sure the people just signed up for a single month on the first day or two of the Patreon coming up. Once they drop another podcast or two, I'm sure they will re-sub.
Run, you simplest explanation is way off base. The simplest explanation is that D&J are podcasting because Cumulus' lawyers screwed up (again) by not putting in the TRO agreement that it stays in effect until the mediation is done. Otherwise it is all status quo.
And it was D&J who requested the delay, Cumulus' council stated they were ready to proceed. I don't think Cumulus is afraid of anything in this hearing, certainly not folding like a tent.
Short time lurker, first time commenter. And not on Reddit. It's very odd how people who receive nothing from Cumulus are so quick in this comments section to simp for the big corporation. I don't know that Dan and Jake are completely in the clear but there seems to be a lot of indicators that they are at least not doomed for all time, as some commenters here would have you think.
I understand that the emotional connection to a station for almost 30 years runs deep. And it's very weird that people assume D&J would go to the Freak when podcasting is the medium in which professional athletes prefer to appear. The next big NBA superstar isn't chomping at the bit to go talk to terrestrial radio hosts. They want to be on Drinks Champs or whatever. Being on terrestrial radio is like being told you have to go to grandma and grandpas to talk about how school is going.
I definitely think that Cumulus absolutely did not want big advertisers going under oath to talk about why they don't plan on advertising with Cumulus anymore. Hell, that has repercussions across all stations of their nationwide. I think a deal is being worked out and we likely will never know all the details. But it seems pretty clear that Cumulus isn't playing the unrelenting hardball that some in this comments space have previously believed that they were absolutely playing.
@Run I don't think you actually know what Occam's Razor/Law of Parsimony actually is and how it is employed.
@Charles It's a bit rich when someone harps on the biases of others while displaying their own.
@Nelly If you are a longtime lurker, then why would you comment on "Smiling Jake" when it's Smiling Dan. In fact, Plainsman explained why he dubbed Dan with the nickname. Smiling Jake has never once been said, other than by you. Sorry, your comment doesn't pass the smell test.
@Mark Bavaro I've been following this conversation closely for now well over a month. I don't recall a significant number (if any) of comments claiming Dan and Jake are "doomed for all time." That they might've harmed their careers, yes. But that's merely an opinion, and like your own, they are entitled to it. Nor is it weird to posit Dan and Jake ending up at The Freak. Why do you think that is a "weird" assertion? As well, please see my comment above to Charles regarding pointing out others' biases while displaying your own.
@Joey Jo-Jo Junior Shabadoo First off, great name. Second, I totally agree with you but with one quibble: I think it's 2 or 3 individuals. Hoping that once all this is resolved and the aftermath of the resolution dies down, MTC gets back to being what it was before this latest episode of Ticket drama.
I will agree with the sentiment that there are some regular contributors that appear to be on Cumulus's side, or at least, and probably more accurately put, not on Dan and Jake's side -- for a myriad of reasons. But I also think some of the more emotionally driven comments (mostly pro Dan and Jake) conflate legal/wannabe legal analysis with taking a side. On the whole, and when you place the volume shooting trolling aside, the comments are pretty evenly balanced. Having said that, it's OK to take a side, and to agree or disagree about it. Spirited but respectful and honest discussion is what this place is all about. Calling people simps, shills, fanboys, reddit idiots and the like only serves to engender an in kind response, which kills any fruitful dialogue.
NOTE: The last 4-5 comments on the previous thread had some good meaty stuff, especially as regards what happens in mediations. They echo my own experiences. Might want to check them out before proceeding.
ReplyDeleteHave we learned the exact language of what came out of today's mediation? I must have missed it.
DeleteOn balance, it was a good day for Cumulus. Was it a “win”? Of course, we can quibble about what defines a “win,” and in a couple of respects, it is hard to see it any other way than as a Cumulus win, and, possibly, a predictor of more wins to come. Herewith, a few thoughts, with the repeated reminder that a lot is going on behind the scenes that might change the way we look at what we see going on in public. With that caveat, a few observations:
ReplyDeleteAs a Confessor pointed out in yesterday’s thread, the order that got entered looks a lot like the temporary restraining order (TRO) Cumulus sought; and indeed, it is labeled “Agreed Temporary Restraining Order.” No podcasts before the next hearing (August 29); and what amounts to a social-media gag order on SD+J until that time.
Note that the order does not prohibit solicitation of advertisers; I’m wondering if Cumulus is pulling in its horns on that particular charge, although it has said, without sworn support, that there was more than one that was solicited.
It also does not prohibit all public statements – just “social media posts and other public posts.” Presumably, the lads can still give interviews, although if I were then I wouldn’t. It doesn’t prohibit non-social-post disparagement, either.
So yes, these are good things for Cumulus. However, this order was NOT an order of the court after a hearing on the merits (by “on the merits,” I mean one where evidence and legal arguments are submitted and heard on the record). It was something that the lads and their lawyers agreed to, and perhaps (judging from the sans-serif font used, similar to the one used in their first filings) even drafted.
So I don’t call it a “win,” just a good day for Cumulus – or perhaps “a win, but.”
Why the lads would agree to this, we don’t know. Two possibilities:
The first is that they were not anxious to proceed to a hearing yesterday; for whatever reason, to bring new counsel up to speed, Dan being out of town, who knows what reason – persons on the scene reported that the lads were the most interested in a postponement. Agreeing to a week of dummying up may have seemed like a small price to pay to get the hearing kicked, and it does not mean that the court has ruled against them after hearing evidence.
The second requires us to speculate about what went on in the court’s chambers. The court may have indicated its inclination, based solely on the filings, to favor Cumulus’s position both on the merits of the restrictive covenant claims, and to disfavor SD+J’s labor-law preemption defense (the “you don’t have jurisdiction here, Your Honor, the National Labor Relations Board does”). Again, that week of silence may have seemed like cheap insurance against going forward with a hearing yesterday, and LOSING on the merits, resulting in an order BY THE JUDGE on the record, after hearing evidence and arguments on the record, not an order that the parties had agreed to – much, much worse for them.
CONTINUED IN NEXT COMMENT
CONTINUED FROM PREVIOUS COMMENT
ReplyDeleteSo where do matters stand?
Again speculating, it seems likely that the parties “sold” this agreed order to the court by (mutually) suggesting that some settlement would be possible. That doesn’t require the parties to settle, but it does amount to what the court considered a good faith representation by both sides that they would negotiate in connection with the mediation session taking place today.
However, at least according to one report, an attendee spoke to one of the lads’ lawyers after the hearing, who, if I’m recalling correctly, pooh-poohed the prospects of settlement and asserted that they believed they still had a very strong NLRA-based defense. If the parties come back and report that Cumulus made some offers that were summarily rejected by the lads’ lawyers because they are never, ever going to give up their federal defense, she’s going to feel like she got played in order to get the hearing on the merits kicked to the preliminary injunction hearing on August 29.
So I’m wondering – not predicting, not asserting, just wondering – if perhaps some cracks are appearing in SD&J’s united front. If the judge was indeed sufficiently skeptical that it prompted the lads to agree to a rather conciliatory agreed order, they might be wondering if it is wise to continue this case for the sake of a crusade on a very tenuous labor-law argument of primary interest to one or two of the lawyers involved.
(About that argument: If the court really had any doubts about her jurisdiction in this matter, surely she would have called for evidence on that point now, not some later time, because without jurisdiction, the court cannot proceed at all (other, as I say, than to investigate any factual basis for the claim of lack of jurisdiction, and, if the facts suggest that she doesn’t have jurisdiction, to dismiss the case). But she DID proceed without deciding the threshold jurisdictional issue, entering agreed substantive temporary emergency relief, tending to indicate she is not inclined to buy what the lads’ lawyers are selling. I hope Dan and Jake understand that; this argument, flashy and power-to-the-people though it may sound, simply isn’t worth committing radio-career suicide over.)
Will it settle today? This week? If so, will we learn the terms? Don’t know. Settlements can be confidential. If I were Cumulus, and the terms favored me, I wouldn’t agree to confidentiality terms after the self-righteous racket Dan and Jake made on departure; I’d want them on the record in the lawsuit, like the order just entered. But courts like settlements, and they’ll usually honor a request by the parties to keep the terms confidential, or, if it is filed as part of the case, to seal that particular record. But it’s possible we’ll never know, although if the podcast goes away for some period of time, and the lads don’t show up on the radio for some months, we can have a pretty good idea.
It's a complex situation: It’s not just the podcast – it’s solicitation, it’s disparagement, it’s trademark issues, it’s Cumulus’s fees and expenses, it’s Cumulus’s potential money damages. And again – lest you think the boys will hop to the Freak, I will remind you of the right-of-first-refusal clause in their contracts. Any comprehensive settlement absolutely must deal with these guys hopping to another radio station (either forbidding it for some period of time, or permitting it). It could take some time to hammer out give-and-take terms on all of these items that all parties can sign on to.
For now: Advantage Cumulus, but if it doesn’t settle, the game clock gets reset on August 29, and the parties can put their evidence on the record and the court can decide on whether the injunctive relief sought by Cumulus will continue, and perhaps be augmented, until the full trial in December.
The lads haven’t lost yet.
Any guesses as to how much input Cumulus is seeking or might take from Mr. Dan Bennett as to settlement terms and desires? We know that Mary Berner is quite fond of DB per the D Magazine article from April 2019
ReplyDelete0.0. Middle managers don’t get to dictate legal strategy
DeleteImpression I was given was the agreed order was something agreed to before the hearing started & the Judge was irritated that the parties brought it forth at the beginning of the hearing.
ReplyDeleteMaybe D&J are now getting actual legal advice rather than “storm the barricades! This blog post says we have an amazing case.”
Also, maybe Bob & Corby made it known they were not excited about being brought up in the pleadings.
My prediction is the settlement will be confidential & the only thing we will know is D&J will STFU until sometime in 2024. And then, the PM drive on the Freak. Shocking, I know.
I know many don't want to hear this, but I'm not sure if either Jake or Dan are going to emerge from these proceedings looking so great. I believe they've been ill-advised. I also contend the ill-advice has misled them into a false sense of security, and as a result they've done and said things that will only come back to bite them---perhaps some already have.
ReplyDeleteAgreed, and I’ll use the mom game as an example. Jake’s contract says he can’t disparage and can’t induce others to do the same. I don’t remember when mom game appearance was vs lawsuit filed, but If it was after the lawsuit, him making any comment that induced Emily and Julie to say bad things about TT/Cumulus is problematic. Them letting Akaash Singh flamethrower Cumulus, inducing disparagement. It’s why every lawyer says don’t comment, because it’s going to be used against you.
DeleteC
Dead bang on, in-house. All of it. Jake recently said something along the lines of "in the end we'll all be friends and we'll be thanked for it." I think he was referring to Bob and Corby.
ReplyDelete@In-House: Absolutely agree that this looks like something the parties hammered out in advance, simply because that order was done in the same crummy font defendants' initial filings were in. This was what they brought to court with them -- it wasn't done after the chambers meeting.
ReplyDelete@Daryl's Dragon LLC: Generally agree, as long as love will keep us together.
I still think the biggest & easiest concession to make is for Cumulus to give up the right of first refusal. The mediator will point out Cumulus doesn’t even want them back now so what is the point, really? It just makes it hard for D&J to negotiate with Freak/Fan.
ReplyDeleteDid anyone catch the tidbit that Ham has taken his full two weeks of vacay? Hmmmm. Take your paid leave, return and quit? Like the timing of Blake's leaving, it's interesting. We'll see if Ham returns. On another front, WiSP is getting better. Monty is the difference maker. Donnie and Matt just don't work. Look, I know I know Matt's going nowhere. It sucks because I love me some Donnie Doo. Yes Bob and Dan were awkward AF their first year or two. But the tension between Donnie and Matt is so thick it's palatable.
ReplyDeleteD&J can continue to podcast behind some form of paywall. Terrestrial non-compete extended to 12 months. Other typical and customary clauses (no discussion of settlement, don’t solicit existing Cumulus employees or sponsors). Let them strike out on their own and try to establish a digital presence safely behind Patreon and keep them away from 97.1 longer than their contracts stated. D&J get what they say they want, which is the ability to grow a brand outside of AM radio, and Cumulus keeps them away from competitors while establishing two new shows.
ReplyDeleteNow that the long anticipated KTCK game of musical chairs is all but over, it is reasonable for anyone and anyone without a prime seat to consider bolting. This case has revealed for all that Cumulus pays at the lower end of market for the privilege of working at KTCK. Some were sticking it out because the Norm & Rhyner retirement were forthcoming. That’s in the past now. So now the lineup is pretty much solidified, so there is no room for advancement for the foreseeable future. Might as well plan your next move elsewhere if you don’t like where you are.
ReplyDeleteHere’s my uninformed take. The advantage right now is with Cumulus. They got 2 of the things they wanted in the TRO, no more shoes and no more disparagement. And they got TDZ to make a strategic error in agreeing to the TRO. If they can’t mediate, Cumulus’s lawyers will be on there next week arguing for an extension of the Status quo, and TDZ will be the ones arguing for a change. Always harder to change minds then continue with what was going on. And I don’t think there’s any way Cumulus agreed to let TDZ continue to post podcasts, paywalled of not.
ReplyDeleteLook at it this way, if no settlement and TRO stays in place, they go to trial in December and if Cumulus loses, they’ve had them off air for 5 months.
If no settlement, TRO, and Cumulus wins in December, they get all of TDZs patreon money, TDZ pays their legal fees, and TDZ is off till June of 2024.
I suppose there’s the possibility of no mediation settlement, TRO gets vacated and TDZ wins in December, but the TRO is in place. And this ultimately boils down to Jake’s non compete. Strip away the NLRB Hail Mary and TDZ doesn’t have a legal response to the non compete charge. I think this is the least likely scenario.
C
I've been listening to The Down Beat pods the past week and change.
ReplyDelete1. I really wish Cumulus/The Ticket would make their shows available like iHeart/The Freak does. Perhaps they will after The Situation has been resolved.
2. In no possible world does The Down Beat present itself as genuine competition for Dunham and Miller.
3. Having said 2., it's also not that bad. There are moments where I found myself cracking a smile or thinking, "nice point" or "agreed."
4. Sirois is exactly where he should be and in the role he should be in. That is, cohost/master of ceremonies/formatics fuhrer. His energy level is noticeably better than it was during p.m. drive. Nor is he coming off as manic as he often would while at The Ticket. He seems to be finding his groove. While not the voice of a generation whose departure would bring on the downfall of The Ticket, he definitely has the talent to do this for a living and do it well. Good on him. Caveat: If iHeart morphs the format to sports, he's going to be swimming upstream.
5. Pre saying that I am a Danny fan. He does a real nice job. Has some interesting, even wise things to say at times. The show is full of his handcrafted theme songs. Some are OK, some are rather forgettable. I think that well might've run dry. Helluva run, though. Danny, like Sirois, is not an on-air talent alpha. Like Sirois, he has the talent to do this and do it well. Unlike Sirois, if the format morphs into sports, it will be to his benefit and probably extend his run.
6. KT needs to produce, choose his spots, but mostly let the ball come to him. I'm not picking on the man, but he does not do this well. KT continually gives off the airs of someone who subs in for weekend shows from time to time and is desperate to be seen, make a name for himself. I don't say this mean spiritedly. It's just the truth.
7. The show needs, no, demands a genuine alpha host. Per the above, neither Danny nor Sirois are that, and KT shouldn't be there to begin with, he should be producing. I can see why they were paired with Rhyner. It made all the sense in the world and should've gone off like gangbusters. Unfortunately for them, Rhyner either wasn't/isn't interested in doing his job or has lost the ability to do so (many of you claim one or both have been the case for years now). I don't know who that personality would, could, or should be, but if the show is to have any staying power, one must be found. I can't imagine there's anyone left at The Ticket who could be persuaded to defect. (There are no JV members strong enough anymore to count, and that goes for Monty, who, while strong, is not carry an a.m. drive show strong.)
The upshot is, The Down Beat has something, but it's needs more to make it a viable option. You have two able first mates and that's a good start. It needs an alpha. It needs a captain.
@The Driver
ReplyDeleteI haven't tuned in but friends who have are saying similar things. The only one at TT that might defect would be Donnie. He and McClearin are like oil and water. I could see him bolting for the shot at hosting am drive show. He'd be reuniting with Mikey and they were an awesome duo. Add in Danny and all the potential music and sports talk and damn, I'd be all over it. I love The Musers but having another option would be super cool. That's what me and my friends were thinking would happen with TF. It hasn't yet but a Donnie, Mikey, Danny am show and a Dumb Zone pm show would change all that in an instant.
Interesting scenario, Lloyd. Anyone out there know anything about Donnie's contract? When is it up? Last renewal?
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteAllow me to pre say:
ReplyDelete* This is the most interested I've ever been in a contract case..
*I'm assuming D&J's stance is half about them, and half about the principle/fighting city hall/taking on the man
Although I find D&J's strategy too cute by half, it seems like a limited downside action, assuming they saved their pesos for a rainy day. Their worst case scenario is that they extended their non-compete by 6 months, and have to pay attorneys fees - which they could probably stretch out over time.
The Cloud's downside is probably worse in the short term, although given SCOTUS'S antipathy for the administrative state, if D&J somehow pull an NLRB rabbit out of the hat, I have the feeling it would be a hollow victory. The Cloud just wants people to sit their 180 days.
I don't see why Cumulus would agree to allow them to continue podcasting in a mediation agreement. It seems like if they gave that concession up, they would have written the playbook for getting out of a non-compete for a podcast to any host with minimal repercussion.
ReplyDeleteI notice a lot of people mentioning the attorneys' fee provision of SD+J's contracts. (I.e., if you lose, you pay our expenses in enforcing the agreement.)
ReplyDeleteThese provisions are legal and enforceable.
My guess: If (1) there is a settlement, and it includes (2) Cumulus getting what it wants with respect to the restrictive covenants, and maybe the trademark stuff, it will waive the attorneys' fees, and probably all of the monetary damage claims as well.
From Cumulus's standpoint, they had to go after the lads with a cease-and-desist demand, and when that was ignored, they had to sue as an in terrorem tactic to keep other departees from ignoring their contracts. If Cumulus gets what it wants with respect to competition/solicitation/disparagement as well as some assurances regarding staying out of radio, for a reasonable period of time, they're not going to dance on the lads' graves. To get the settlement, they'll have to give something back, and that something is likely to be the claim for fees and damages.
Unless the now FOUR lawyers now on Dan and Jake's side of the table are all working for nothing, they're already suffering financially for undertaking their imaginative jihad against Texas contract law. That, combined with the restrictions on competition in the settlement, will be regarded by Cumulus as sufficient to get the lesson across. And, as I say, to get the settlement Cumulus will have to give on something.
Why do you think that? By my estimation TDZ blinked, there’s absolutely nothing in these recaps about the NLRB angle. And most if not all of their response was “NLTB preempts federal judge, you can’t do shit Sholer”. Now it looks like TDZ is playing from a weak position. Jake’s non compete is clear that they’re in violation, they clearly converted Cumulus assets (like the Twitter account, etc) to their use, and I know I’ve heard them use the dumb zone when they were the hang zone, so that’s definitely cumulus IP.
ReplyDeleteI’m not sure why Cumulus would, or would need to give up much to reach a settlement. And I’d want the financial pain for TDZ to send a warning to others thinking about breaking a non compete. Basically “we’ll come after you, cost you plenty and extend your non compete if you think about crossing the cloud”. I think Cumulus’s lawyers play hard ball here,
C
Anony moose: The new ratings book won’t be out for a couple more weeks
ReplyDelete@C minus:
ReplyDeleteYou may be right. But if Cumulus is hard-nosed about every single element of their claim, there will be no reason to settle.
Please note that my speculation had as an assumption that there is a settlement. For a settlement to happen, unless the lads just throw up their hands and cave on every single thing, they have to get something in the deal. Like any other kind of deal -- but unlike most judgments entered after a hearing.
In your scenario, Cumulus thinks it's already won everything so why take less than everything?
But that's not correct. Cumulus doesn't think it's won everything because there has been no hearing on the merits. It's only won what the lads agreed to give it for a week or so. My opening comment suggests that yesterday's result was real good for Cumulus, but it was not a "win." If it was, there would be no reason to have a hearing on August 29.
And hearings carry with them -- risk. The risk of losing. The risk the court will hear testimony and not come out your way. Yes, that could absolutely happen here. I'm not expecting it, but maybe, for example, the court likes the "waiver" argument (IJB and the rest).
So to avoid that risk, parties settle. And when they settle, each side has to get something. I am only suggesting that a frequent bargaining chip is attorneys' fees. If Cumulus gets what it wants on the injunction side, what it has to give up is the monetary stuff, most prominently, attorneys' fees, since they are liquidated and known and Cumulus didn't start this lawsuit to get attorneys' fees in the first place.
If there's a settlement that gives Cumulus what it wants on the competition/solicitation/disparagement side, Dan and Jake will have pain, believe me -- the pain of utter humiliation for handling things the way they did, and for thinking they could ignore their contract because they'd been Svengali'd by some lawyers, and, quite possibly, the chance that no one, not even iHeart, will want ideologues like that on the payroll. Cumulus doesn't need to collect fees on top of that to give their employees pause before ignoring their promises.
Hey, I could be wrong -- the settlement, if there is one (and I'm not convinced there will be, depending on who's calling the tunes on defendants' end of things), could be a thorough thrashing of the lads. But most of the time, anyone seeking to impose a 100% no-win ends up with 100% no settlement, with the accompanying trial risk that they could have avoided by giving up the stuff they don't care about so much.
Hi C,
ReplyDeleteOut of an abundance of curiosity, do you have a financial stake in the outcome of Cumulus legal proceedings? You seem particularly sensitive to perceived disparagement of Cumulus by any entity even tangentially associated with Smiling Dan and Jake. I apologize if you mentioned before that you are an employee. SD & J played a clip of former Cumulus employee and national sports talk host Steve Czaban bad talking Cumulus and how notoriously poor they are with their on air employees. Czaban now has a full time podcast gig and is no longer on terrestrial radio. He called out the Dumb Zone legal issues on his pod. Seems as though Cumulus is in the process of self inflicting major damage to their reputation without then need of much help from the lads.
As someone who has worked for iterations of all the current "big three" radio companies, I can personally report they all suck and are terribly run operations. Each is a slightly different flavored shit-shake.
DeleteHi David and Goliath. It would seem you are projecting.
ReplyDeleteJust listened to Matt Bruenig on the Dumb Zone from last week. He lays out the fact that simply the existence of nondisparagement clauses in a contract is illegal.
ReplyDelete"any (nondisparagement clause) that does not include explicit language about how you can talk about (terms and conditions of employment) is presumptively illegal under the NLRA"
Says rules have gone back and forth over the years (Lutheran Heritage to Boeing to the old rule on Aug 2)
So, simply having a nondisparagement clause at all that says anything like "don't say anything prejudicial about the employer", is illegal.
Gave an example saying "management treated us like crap" is allowed. Saying "the current product sucks" is not allowed. D&J have not done that at all.
Same Bruenig whose fingerprints are all over the filing that told a federal judge to eff off, that she had no jurisdiction over anything because of the NLRB complaint? How’d listening to Bruenig on that turn out for TDZ?
DeleteAnd D Not G- no financial stake. I sell for one of the smaller operators in this town, although I do have old business cards with Maple, Fitzhugh, and Dallas Parkway addresses on them.
C
https://news.bloomberglaw.com/daily-labor-report/companies-must-rethink-handbooks-in-wake-of-labor-board-shift
ReplyDeleteNo settlement yesterday. Trial ordered for December. Still have the TRO/PI hearing next week.
ReplyDeleteRun, do you have inside knowledge that there was no settlement?
ReplyDeletea scheduling order was issued this morning by the judge. trial 12/12.
DeleteHoly shitskis. Haven't hit the old reddit site in a bit. Made that mistake this morning. The whole lot of them are done with TT. Now that they know Cumulus practices slavery, merely listening to it now makes many uncomfortable. There's never been anyone worse in the history of employment than Cat. That and he and Dan Bennett are evil. Dan and Jake are the new and improved Rosa Parks cum MLK cum Ghandi cum Greta Thunberg cum David Hogg. They have assembled a legal team with the collective IQ of a gagillion with an airtight case that has not just The Cloud but all of corporate 'Merica quaking in its boots. And anyone who deigns to even imply otherwise is nothing but a slobbering MAGA cum QAnon cum dog whistling POS who's a moron at best, evil at worst, but probably both.
ReplyDeleteIt's a scene, man.
The entry of a scheduling order means nothing. She gave those dates at the initial hearing.
ReplyDeleteSo barring a settlement between now and 12/12, does this mean the nc wait out wouldn't begin until after the outcome 12/12 hearing (if DnJ lose)? If so, wow.
ReplyDeletesampling the two new mid day pairings and remembered that the "cat knows talent" commenter is missing and now i know why
ReplyDeletehaw, I was JUST thinking that today while listening to the first segment of DaM. In fairness, let's see what the next couple of books look like. But yeah, at first blush it seems like his run of nailing it might be over. The other thing I'll say in fairness is that I'm in the camp that feels the McClearin hire was an Atlanta thing and not his decision.
ReplyDelete@Rachel
ReplyDeleteI too have been watching the almost group psychotic break on the reddit page. However, I'm not so sure it's more of a few people commenting over and again using different handles and saying the same thing in different ways. I'm also not so sure that some of these same people might be employed at The Freak. Finally, I'm not so sure that a few of the how shall we say more social media active Freak hosts might not be involved to some extent, stirring things up.
Curious to see when TDZ subscriber numbers start to dwindle - or I guess keep paying the monthly $7 as a Charitable Contribution...
ReplyDeleteRemember, TRO hearing on Monday with the Judge.
ReplyDeleteCumulus wins, silence till trial in December.
DumbZone wins and can keep recording - that’s what would be interesting. Does Cumulus push to settle? Do Dan and Jake read this as a good sign and take this all the way to court?
Next few days are the only time I see a potential settlement happening. If we get to Monday with a ruling from the Judge, one side will be dug in after and want to take this all the way.
Mr.Giggles: I agree with you there. But it does make you wonder why the Freak Reddit page is so slow, maybe two new posts a week if they are spamming the Ticket page. Many of those posts have the tone of just about everything you see in R/Dallas though.
ReplyDeleteFew observations:
ReplyDeleteIt was stated above that maybe Cat doesn't know talent due to the DaM show. I also seem to recall from previous posts that the MM decision may not have been Cat's. And, honestly, I can't recall anyone ever saying in the past that they missed MM. I think Cat would have chosen differently, but that is my opinion.
As for Donnie going... I don't see that. But, who knows. I like Donnie a lot, I could see a lot of outlets being interested. At the same time, if I am sitting back watching this nonsense with D&J and Cumulus, I am not sure I would have the energy unless I saved up and just waited things out. I would also think anyone going to TF right now would receive a little extra visibility from Cumulus.
I have been interested in learning more about labor law. I was not aware that asking folks not to talk salary was an issue. I am older, and it is just something we never thought of or considered, at least I never have. Good to know.
Two things boggle my mind, for the better part of 8 months or more, all D&J talked about was The Man and NC contracts. In my experience, even when employees make jokes about a working environment issue they have, and it goes on and on, I know something is up. And, if Cat or Dan paid attention, they should have escalated and asked for legal guidance.
Lastly, it amazes me that for Dan to do nothing the last 20 years but respond to current situations with, "It's called the way it is", to the point of fighting with Norm about football schedules, but to bow up against this.... Sorry dude, contracts are there to protect you as the employee also, and it is called, the way it is.
@Scott
ReplyDeletePrepare to be shit on in 5, 4, 3, 2.... and you're done. Injecting commonsense into this conversation is something frowned upon by a certain set. As both Rachel and Mr.Giggles have pointed out, there is a very loud and aggressive group out there. Since Jake and Dan's departure, this group has and continues to make their presence very much known here at MTC. Mind you, that does not mean just because one sides with Jake and Dan that they are aggressive zealots. Not in the least. It goes both ways. The trolling has been an egalitarian affair, with trolls purposely stirring things up and creating toxic and sometimes downright surreal exchanges. And I'd be remiss if I didn't also say that there are those who firmly side with Jake and Dan who express themselves passionately but reasonably.
Gopher, look at their numbers from day 1. There's your answer.
ReplyDeleteConfusion over the various steps in lawsuits that ask for injunctive relief -- asking the court to order a party to stop doing something, or to do something -- is understandable. Here's a very brief primer (corrections from current practitioners welcome -- but let's keep it as nontechnical as possible).
ReplyDeleteI'll take the case of someone (defendant) alleged to threatening to occupy a home that they don't own sued by the owner (plaintiff) who wants them out. Let's say a closing has fallen through, but the purchaser defendant is still threatening to move into the home.
(1) Plaintiff, may, but is not required to, give warning to the defendant in the form of a cease-and-desist demand, threatening suit if the demand is not met. If the defendant complies, no need to sue. If not:
(2) Plaintiff files a lawsuit and in connection with that, files an motion for a temporary restraining order (TRO) that the court is asked to hear immediately (in most cases). Since it is alleged to be an emergency, the court may hear it before the defendant receives notice or is able to appear, but in such case, the plaintiff must show how it attempted to give notice.
[In this case, Cumulus filed a complaint but, as we have observed, was so unclear as to whether it was seeking an emergency TRO that both the judge and Your Plainsman thought that they were, but there was no showing of an attempt to give notice. Understandably, the judge denied emergency relief at that time. Cumulus then tried to claim that it wasn't seeking emergency relief, but it went ahead and filed its certificate of attempt to give notice.]
(3) The court may deny the TRO, finding no emergency or no likelihood of entitlement to relief after considering the record. In our hypothetical, she is going to grant the TRO. It will prohibit defendant from occupying the home for a period not to exceed 10 days, unless she extends it on motion of one of the parties for good cause shown, or the parties agree.
[This is where we are in this case. The only difference is that here, the parties themselves have agreed to a TRO, which happens with some frequency to give the parties time to sort things out.]
(4) The court will set the matter for a hearing on what is called a preliminary injunction, usually within or coincident with the expiration of the 10-day period.
[That is what the court has done in this case, setting the hearing for the 29th]
CONTINUED IN NEXT COMMENT
CONTINUED FROM PRIOR COMMENT
ReplyDeleteNow here we need to step back and look at the entire complaint. The complaint in our case has asked for many different kinds of relief in addition to the injunctive relief. Damages, fees, etc. That will require a full jury trial, but because that it a long ways down the road, the court needs to decide what it is going to do in the meantime about the 10-day injunctive relief it has already ordered in the TRO. The court could let it expire; order it to continue through the full trial down the road; or modify it some way pending that full trial. The preliminary injunction proceeding takes place to permit the court to make that decision on a more comprehensive record. The difference between the preliminary injunction and the temporary restraining order proceedings is that in the preliminary injunction proceeding -- unless the parties again agree on the terms of an injunction -- all parties will have had notice and time to prepare for a hearing on the merits, with evidence taken and arguments made on the record.
In our hypothetical, the judge has held the preliminary injunction hearing and granted the injunction, to remain in place (pending modifications for good cause shown in the meantime) through the full trial down the road.
(5) The full trial takes place on all issues, injunctive and damages, raised by the complaint, and all of the defenses. The court may dissolve the injunction if it finds for defendant (juries don't decide injunctions), or it may make it permanent, or modify it in some way. The jury, if defendant has asked for one, will decide any of the monetary issues.
[This is the trial that is scheduled for December of this year.]
(6) Of course, the case may settle at any point along this chronology, which may result in an agreed order relating to injunctive relief similar to the TRO entered in the present case, or not, depending on the terms of the settlement. When the case is settled, parties may voluntarily dismiss without further court action.
Hope this has been helpful.
D&J patreon actually gained 4 followers today. I like those guys and miss them on TT but I ain’t giving them money to do nothing. For Christ’s sake, at the end of the day they were just talk show hosts….
ReplyDeleteThere are many people on Reddit saying they were already subscribed but are now voluntarily increasing their monthly payment to “our boys” to show support for “the little guy” fighting the “man”. The cult of personality is real.
DeleteOne clarification, Pman. I think the hearing set for two days ago was going to be a preliminary injunction hearing (i.e. evidentiary), not just a hearing on the request for a TRO. On last Friday's podcast, Dan made a funny comment about how they probably wouldn't be recording on the weekend "because apparently there is something called witness prep, and apparently it can happen on a Sunday."
ReplyDeleteWhat I still don't understand is what happened to derail the 8/21 hearing the morning of. Did the parties come in with an agreement ready to present to the Court? I also heard a version where Dan and Jake's counsel advised Judge Karen that they wanted to continue the hearing because of the Tuesday mediation, and she got annoyed because she was ready to go and the parties had prepared for an evidentiary hearing (a lot of work), but she eventually relented and agreed to move it to 8/29 if the parties to work out an agreement about what happens in the meantime.
If the lads spent all weekend preparing, I wonder what happened to make them suddenly want to call it off in favor of the mediation, assuming they are the ones who instigated the continuance talk.
@Colorado P1:
ReplyDeleteYou're correct about what happened in the Dan/Jake case. She had already decided what she assumed was Cumulus's motion for a TRO, denying it for the reasons noted several times on this site.
The confusion caused by Cumulus's initial filing (and follow-up filing which purported to "correct" the court's misimpression) continued, because, while in the normal course one would think of the 8-21 hearing as a preliminary injunction hearing as you have said, the TRO motion having already been decided adverse to Cumulus, here come the parties on 8-21 with an order already prepared for her review styled "Agreed Temporary Restraining Order."
As I also noted, Cumulus caused further confusion by styling its original application as one for a temporary restraining order AND a preliminary injunction. If you'll look at the stylings on the courts various orders, it is far from clear that the 8/21 hearing was one for a preliminary injunction and, of course, the agreed order as finally entered contained the TRO styling.
Which is why I used a hypothetical instead of the mess this particular case has become.
The Cumulus filings were all serviceable, but their inattention to detail and ambiguous styling (and delays) resulted in much more confusion that was necessary, and delayed their relief.
A quick note on today's (8/23) scheduling order:
ReplyDeleteIt's routine to set a trial date (already set in an earlier order). This one also set the dates for pretrial motions to be filed, and sets three pretrial conferences leading up to the trial date.
This does NOT mean that mediation failed, although it may have -- we just don't know. It's possible the mediator is still communicating with the parties trying to get a settlement.
And it does NOT mean that the case is not going to settle. For reasons I've set forth earlier in this thread, this case has lots of moving parts and different types of relief sought, so reaching agreement on all necessary elements could take some time.
It's not impossible to imagine that discussions have completely broken off forever, but if I were the parties I would be reluctant to show up for the next hearing and tell the court they got nothing done as the result of her reluctant postponement of (what we're now calling) the preliminary injunction hearing.
If they making progress on talks, I'd be getting a motion on file NOW asking her to extend the Agreed TRO for some additional period, before everyone shows up for the next hearing.
“The owners of KTCK “The Ticket” and former hosts Dan McDowell and Jake Kemp are close to settling a lawsuit over whether the duo’s new sports-talk podcast violates their noncompete agreement with the radio station, lawyers for both sides said Monday.
ReplyDeleteInformed that a settlement could be imminent, U.S. District Judge Karen Gren Scholer postponed until Aug. 29 an evidentiary hearing on a request by Susquehanna Radio, which owns The Ticket, for a temporary restraining order to silence the podcast called The Dumb Zone. Their afternoon show on The Ticket was The Hang Zone.”
https://texaslawbook.net/dan-mcdowell-jake-kemp-in-settlement-talks-with-the-ticket/
Wonder what his MTC name is.
ReplyDeleteWonder what his MTC name is.
ReplyDeleteAt what point with this schmuck^^^^?
ReplyDeleteWhat up, BK? Trolling here again are we. Stay in your lane. Besides the light is red(it).
ReplyDeleteWho is BK and who is trolling? Man, this is still as confusing when Anon was allowed.
ReplyDeleteAnywho, the Dallas Morning News coverage of it has been laughable. Why behind and just badly uninformed.
The trolling has been an egalitarian affair
ReplyDelete-> relating to or believing in the principle that all people are equal and deserve equal rights and opportunities
Fair enough!
I agree about the DMN coverage. You obviously get a FAR better understanding right here. But I don't fault the DMN. This isn't Rhyner leaving. Not Norm either. It is two midday guys who, were it not for the prominence of the station they used to be a part of, would be utter nobodies. Most people just don't care. This barely warrants a mention from the DMN.
ReplyDeleteRe the Texas Law Book quote from Charles at 755 and Legal EGL's skeptical reaction:
ReplyDeleteI don't know if TLB had a source or not.
But in my own analysis of what must have gone on, I have speculated that the parties told the judge something very close to what was reported by TLB.
Remember, this judge was peeved that the parties were not prepared to go forward and wanted to kick the hearing. The way to turn her around on this would have been to tell her -- both sides agreeing to tell her -- that they were engaging in productive settlement talks.
This report supports that supposition, and makes sense to me.
Men and women, can we put a cork on who's a troll and who isn't? Completely unproductive and a massive bore as a topic. Not deletion-worthy, but pointless.
ReplyDeleteThis comes from Reddit, so take it with a grain of salt:
ReplyDeleteSomeone is reporting Ham is the new Hardline producer.
Boot. Creeping. Ever so closely. To the necks of your heroes.
ReplyDeleteMaybe so, @time has come. (I think those may be the first Night Ranger lyrics featured on this site.)
ReplyDeleteI must say: Whatever one may think of his judgment and his politics, I'm going to miss Jake during Cowboys season.
Dan, less. But some.
Definitely agreed with ya p-man. Really won’t miss Dan. Would have considered it a great show if Jake stayed with the current 1-3 show in some form. Jake was one of the true cowboys fans and I liked that.
ReplyDeleteWhat do voluntary mean?
ReplyDeleteNot even close. The OG steel toed boot douche basically laid out half of NR's When You Close Your Eyes. This person is an imposter.
ReplyDelete@Darren: Can you clarify that question about the meaning of "voluntary"?
ReplyDeleteDream it all up, turbo
ReplyDeleteLovn' it, sport.
ReplyDeleteI've seen two online articles stating that the mediation was rescheduled to August 29. If so, I haven't seen an order to that effect yet.
ReplyDeleteThe preliminary injunction hearing is scheduled for that date (August 29) at 9:30. I've seen no order rescheduling that, but I don't see all the PACER entries right away. Either these reporters misread her August 21 order, or there's been some intervening order.
I alluded to this on Reddit. It is amazing how wrong reporters are when it comes to covering trials.
DeleteForever ago, I was a young associate tasked with watching a high-profile case for an interested party not named in the proceedings. I sat right behind the DMN & WFAA reporters every Day & took notes. They got the most basic things wrong constantly.
Believe the reporters are seeing the scheduling order issued yesterday, and confusing that with the original announcements of the same date. They either missed the originals or have a different understanding of the intent/purpose of yesterday's order.
ReplyDeleteWord on the street is the boyz have invested in platinum codpieces to negate any boots of the steel-toed variety.
ReplyDeleteStill looking for skaters?
ReplyDeletebut what protects one from being stepped on in the face with a hob nailed boot and breaking ones nose
ReplyDeleteThis whole supposed "boot" that has still yet to drop has me very leery it will ever drop, and what is it like cumulus has some real dirt on Dan and Jake? I mean idk what could drop now that would be so bad at this point.
ReplyDeleteA hockey helmet with a cage, of course. Who's up for some breakout drills?
ReplyDelete@CJK5H
ReplyDeleteThere's no boot. Steel-toed or otherwise. That was some ding dong. Evidently another ding dong has taken up the mantle. Actually it now looks like ding dongs are in on it. How that floats one's boat is beyond me, but uh yeah.
Recommence holding of butts
ReplyDelete@Sew A. Moose
ReplyDeleteI heard a nugget at my Cheers this past Sunday Funday. One of my fellow barstool athletes happens to be business adjacent to the local media scene. If what he said is true, you better believe we ought to hold onto our tuckuses. I didn't place too much into it at the time because frankly this person has said a lot of things Ticket related over the years. Most never panned out. Some did. Including Rhyner starting TF. He told us 3 months prior to Whitt that Rhyner had something huge cooking and that it basically was going to be The Ticket 2.0. So that one was true. Don't know why, but my gut's saying you aren't trolling. Wondering if the nugget I heard and your admonition are about the same thing. If so then it's shit meet fan all over again. I'd say in a way bigger way.
Sew A. Moose = So Anonymous
ReplyDeleteHi, Sirois.
Gotta say, @Oktoberfest, I've seen coy phrasing like this many times on this site by people claiming to be, or know, an insider. It's usually bullshit.
ReplyDeleteIf you got something, spill.
Otherwise, you're wasting our time.
Funny little moment on THL pre-Rant Revival just now:
ReplyDeleteCorby: If we just sent Gordon in there to be the mediator between the studios and the actors and the writers, would anything get accomplished?
Gordon: No, the last time I tried to mediate something it didn't help!
Bob: Hi-yooo! It seemed easy at first...
Corbily: ...It was so easy; "Let me just walk in there, pat 'em on the back, no problem..."
OK, dude. I guess the newer, brasher breed of MTC commenters have rubbed off on you. Prickly f.
ReplyDeleteLet me lay it out for you. What did The Freak recently do? Switched up their lineup. Their strongest show is now am drive. You follow so far? Is it Musers good, nope. But it's already better in a few short weeks than The FAN and many other morning shows. It'll only get better and who knows maybe they'll add another piece to it making the thing even stronger. My barstool insider says there's very few secrets in this business. For example he said everyone knew something was up with Rhyner and Sirois. Didn't know exactly what but knew they were up to something. This included The Ticket bunch. The new pd at The Freak made those moves because he knows there's about to be a seismic shift in the am drive landscape. Care to guess as to what form that takes? You got it. The Musers. So there ya go, dude.
By the way. The Darren Hambrick name and the what do voluntary comment just blew past you, huh. He's a former Cowboy who said that during a presser. It's been a staple Ticket drop for a decade now.
I call BS. Maybe not. But, hey, there are “no secrets in this business.” And one of (or all) the Musers are leaving. And yet there is a parade of people walking out the door.
ReplyDeleteThat doesn’t make sense. Does it?
It’s a game of musical chairs at the (checks notes) most popular radio station in a top 5 market. One that has a history of promoting from within.
And we are being told the music hasn’t stopped. Maybe. But if one is employed at said station and there are rumors the music hasn’t stopped, are you quitting the game? No. Only an idiot would not wait until the music stops and all the seats taken before bolting.
I dare say that even Dan & Jake wouldn’t leave KTCK if they thought a spot in AM Drive at KTCK was going to open up.
But I could be wrong
I’ll say one other thing. Better think twice before you retire. Rhyner found out in retirement that you just aren’t as cool when you aren’t on the radio. Concert tickets are a little harder to come by; people don’t rush to answer the phone or return the text; and nobody really needs your opinion on anything.
ReplyDeleteCan’t rule out musers leaving but if they planned on doing it, I thinj Dan and Jake would’ve stayed for that spot regardless if cumulus pays for aux cords or not.
ReplyDeleteAlso, why does musers retiring mean the freak is now gonna try harder? I think if they thought they had a chance at better ratings, they’d do it regardless.
Didn't say all were leaving. Even one is enough to make them vulnerable.
ReplyDelete@Oktoberfest: Thank you.
ReplyDeleteIf your buddy thinks he knows that much, then he knows which Muser is leaving. And so do you.
Deliver.
It's not a question of trying harder. It's seeing a possible opportunity to make inroads. It's also seeing what you had wasn't working like you thought it would and trying something new with the talent on hand before trying something new with new talent.
ReplyDeleteLook, this is what I heard from someone media adjacent. I'm not saying it's definitely happening.
Heard it from a friend who...heard from a friend who...heard it from another you been messing around.
ReplyDelete!lurk
ReplyDeleteYeah I also call BS on the musers leaving rumor. The Freaks ratings were to channel Big Bib Wilonsky “terrriiibbllleee”. So if I’m new PD and I look to make a change, what pieces do I have to try and build for the future?
ReplyDeleteDude already failing in AM drive who’s never been more than one dude in a multipart show?
Girl that’s already failed in AM drive, who is clearly nothing more than a bit player?
Other dude failing in AM drive, who’s nothing more than a glorified producer?
The midday show that has failed to draw good ratings at FIVE other radio stations?
The retread retiree who has already quit radio once and who, by all accounts, mailed it in his last 3-5 years at his old job?
Or do I combine the 2 guys who at least have been on successful shows before? Combine 2 guys who at least have a shared background where a good slice of my audience will know who both of them are.
I don’t think putting Sirois and Balis in AMD was some brilliant move because they know the musers are quitting. It’s a desperate recombining of ingredients trying to create a dish that listeners will sample, like, and ask for more. Cavanaugh Julie and KT were regularly in the mid to low 20s in the ratings. You have to try and fix that. And it’s always easier to rearrange deck chairs then go out and buy new ones.
C
I could have sworn I heard Wed that Doocy would be in Thursday, and Junior would be at Choctaw on Friday. I am not hearing Junior, but I am also not hearing where he might be. That is odd. Maybe they have to mention it for scatter shooting.
ReplyDeleteGiven all the unrest, if it were something simple, they would have mentioned it, even with Fernando out, they mentioned he was ill.
"This was a planned day off for him." - Gordo
DeleteJunior is on “vacation” in New Mexico
DeleteNVM, fire quenched
ReplyDelete"junior" "is" "on" ""vacation"" "in" "new" "mexico" could not be anymore ominous
ReplyDeleteA fun little tidbit from most recent IJB, they had Mike Machine Marshall on and TC introduced him as a guy who can be on podcasts right now.
ReplyDeleteJake is also not on their second episode this week. No mention of why. He’s missed before but it’s normally addressed.
Probably because they’ve gotten a better lawyer than Bruenig in to read the contract and are waving Jake off IJB for that lovely phrase “out of an abundance of caution”.
DeleteIt’s possible that Jake wins in court arguing that Cumulus waved any right to complain about IJB by allowing him to do it while he was employed.
And it’s also possible a good lawyer sat him down, read his contract to him, explained the big words, and pointed out Jake, and only Jake, signed a non compete promising not to do competing podcasts for 6 months after the end of his contract.
Is IJB really competition? I can see an argument being made that Cumulus was willing to allow it while he worked there, but clearly sees it as a violation of his non compete the moment he quit. Is that a winning argument? IDK. But how much money is Jake willing to risk to find that out?
C
Musers aren’t going anywhere. The 2023 bunker: the three Musers, the three Hardline, and Donny.
ReplyDeleteGeorge and Junior are pissed. Corby is pissed. Bob is heartbroken. Gordon? He laid the rhetorical trap: I’m paraphrasing but he said, twice on air, that Dan and Jake told the bunker boys that they would not compete on radio. Gordon couched his feeling about them leaving as “they promised they wouldn’t compete with us, so we wish them the best.”
This is because Gordo knows they are lying. How to justify turning your back on folks? You tell a liar as long as you don’t lie to me, knowing they are lying to you.
Poor, I agree. Plus, Musers and Hardline are definitely looking at this as their life's work. They're proud of it and aren't going to intentionally set a torch to it. Even if one or more were contemplating retirement in the near future before, I think the last 6 months have squashed that and they're in bunker mode.
ReplyDeleteJunior said on Tuesday that he would be off Thursday and Friday. Gordo was playing it up because Gordo wanted to stir the pot. Because that's what Gordo does.
ReplyDeleteAnd THZ was merely on dry dock.
ReplyDeleteI don't know what was allowed or maybe just ignored while Jake worked at Cumulus, but I do think that if Jake had just stuck to IJB during the noncompete period, he may not be in this mess. I could be wrong, Cumulus is a business, but the dumbzone was much more in your face than IJB as far as competing podcasts go.
ReplyDeleteD&J filed for and received an extension to file an answer to the complaint until 9/5. Seems relevant to me because maybe they don't want to have to admit or deny specific allegations right now, perhaps because settlement negotiations are ongoing. The motion also states that the parties "began" mediation on Tuesday, so perhaps it extended out longer than that.
ReplyDeleteI believe Poor and Friendly are on track. I'm not sure what Sew A. Moose is referring to, but something tells me it's not someone leaving The Ticket, but rather, something coming down at TF. I also believe Sew A. Moose is So Anonymous, aka Sirois.
ReplyDeleteNow, could part of an in principle agreed upon settlement between DnJ and Cumulus entail sitting out the nc but also being allowed to announce their future plans, those plans including pm drive at TF (reunited with Julie--even for a short time, Rhyner before he permanently signs off)?
I say this because suddenly, DnJ and the public faces of their legal team are behaving in a way that you'd think they would've all along. That is, as if this was a serious matter with potentially serious consequences. Up until a few days ago this wasn't the case. Again, that attitude seems to have, ahem, ceased and desisted overnight.
Pure speculation on my part, for sure. But taking into consideration all that's gone down (including the odd reshuffling at TF), it might have legs.
@haw
ReplyDeleteSo too is the fact that the travel team needs a new goalie. Let us know if you're interested?
Re the Musers: They've been at it for almost three decades. The way will come when one or all of them will hang it up. I assume that is not Oktoberfest's friend's news.
ReplyDeleteThat day, in my exalted opinion, is not within ass-clutching proximity. People have been predicting the departure of one or more of these guys for the last ten years.
Now: The Freak: I'll believe anything. Meet the new boss, not the same as no boss.
DnJ: This order extending the date to answer (NOTE: the formal "answer" is not the same as the response to the TRO/PI application that SD+J have already filed (twice)) is consistent with our prediction on this site that the in-chambers meeting last week featured representations by both sides that real progress was being made on settlement, contrary to the dragon's-breath saber-rattling (to mix a metaphor) of one of their lawyers.
Next motion may be one to extend (1) the agreed TRO and (2) the August 29 hearing date, which is coming up fast.
RE: 33
ReplyDeleteYes, I can convert... I had not considered other outlets requiring a boot. That is interesting. Whether from TF, OR possibly other random unrelated sports media outlets.
In my awesome world view, Doocy would start doing Fridays, right after E-brake, for a few hours. See where it goes.
Whomever said that KTCK was life’s work for some of the lads is spot-on. For others? They thought it would be. They had it or were within arms’ reach. But pride is a helluva drug.
ReplyDeleteNot pride, as always it comes down to $$$$
DeleteThe Oak Cliff Con Man's pull is strong.
ReplyDeleteIt doesn't always come down to money
ReplyDeleteNot always, but in this case, yes.
ReplyDeleteDan's Coaching Tree:
ReplyDeleteGrubes
Donnie (though unfair; Donnie was a professional broadcaster long before he got to KTCK)
TC
Jake
Julie
Blake
So no one, with the exception of Jake, with a successful radio career after working with Dan? And Jake’s one career success is a sum total of 3 years co-hosting experience WITH Dan?
DeleteI wonder how much of the ticket success is lightning in a bottle? The sum being greater than the parts, etc.
I’m not a Mcclaren fan, but I’ll give him credit for success outside the nurturing biosphere of the little ticket.
How many of those listed above have had radio success post ticket?
What about Bob?
ReplyDeletei'd say jake had more influence on dan and that bob had far more on jake. julie had already been in the business years before being employed by the ticket. has, more aptly, can anyone instruct tc on anything? i'd say no. grubes cut his teeth with norm. so i guess there's blake?
ReplyDeleteOther than Gordo, it's pretty much all lightning in a bottle. Right place, right time.
ReplyDelete'Know your worth' always seems to imply you're worth more. Maybe sometimes it should be "hey, this is a pretty sweet gig".
@WilliePep
ReplyDeleteAgreed. It goes for us listeners, as well. Having The Ticket in our lives is pretty sweet. Anyone who's lived outside of this market for any period of time can tell you this. Those who only know this market have no idea just how awful most every sports/guy talk station in every single market is outside DFW. It's that way because we have The Ticket.
I wish nothing but the best for Dan and Jake. I also wish they didn't choose to leave. But I also believe they will come to regret their decision. As you say, WilliePep, "hey, this is a pretty sweet gig." I'll go a step further and say it's a singular, magical gig.
I’m going to slightly disagree about the sweetness of the gig. For us, as fans, it would be. Clearly though given the number of long time employees of the station that have chosen to leave in the last couple of years it is not as sweet a gig as we’d think. Something, be it professional or personal, poisoned the well enough that it as no longer sweet enough to keep them there and leaving with all the possible outcomes was worth it. I don’t believe that anyone that left didn’t take the time to consider what failure would mean to them. Yet they still all choose to risk it and leave the mothership. This isn’t an evil cloud post and don’t see good guys and ba guys in this, but there must be something that’s not right at our little ticket.
ReplyDeleteWell, let's review:
ReplyDeleteNorm retired.
Rhyner retired, unretired, claimed he was 'marginalized' when it was clear to all but the most ride or die fan that he'd been mailing it in since before Greggo was fired (since around the summer of '06, let that sink in).
Jer (identified as Jer at the time of his departure) left for personal reasons and is no longer in the industry. Has Tweeted on many occasions that he loved The Ticket and everyone there.
Julie, Sirois, and Danny left to eventually take up hosting gigs. Gigs that they knew would not be afforded them at The Ticket. Perhaps either Danny or Sirois would've gotten one after Norm's retirement. We'll never know. Julie was and still is in no way qualified to be a host. This shows on a daily basis. The main takeaway here is that they had all hit their ceiling at The Ticket and decided to move on. None of them were weekday hosts. None. (Obviously this includes Jillian.)
This can be applied to any other JV who has left. If you've been a long time listener, you know that JV come and go. Some made a deep impression while at The Ticket and then moved on. Support staff leaving for jobs in other markets, other lines of work, etc., is normal. There are finite hosting positions, which is what most if not all support staff are seeking, and playing the waiting game IS the game of this particular industry--at least for most employees.
Thus far we only know Dan and Jake's side of the story. Let's see how this plays out and if more of the story from both sides emerges, giving us a clearer picture before we can say there seems to be something rotten at The Mothership.
Conversely, for The Musers, Corby, Donnie, and Bob alone to still be here after all these years (specially The Musers) is almost unheard of in this business. Add in the longevity and loyalty of Sean Bass and even to some extent Davey. As it stands, that says a lot about The Ticket and its environment. Can and do things change? Of course. And they might have changed or are changing. But turnover is normal. What's not normal is what we've witnessed with The Ticket. Right now it sort of has that every favorite celebrity is dying vibe you get from time to time.
We shall see.
I forgot to include Gordon.
ReplyDeleteAnd Ty and Fernando.
ReplyDeleteI think the problem is the Ticket is/was special because of the entire lineup and how it worked together. Yes there are time slots and shows but because they are so intertwined they made each better which is unique. But like I said it is all about the money. Jake and Dan were more than their time slot but when it comes to getting paid it sounds like it was the station paid like an regular radio station thinks of a time slot. I think it would be hard to stay if you feel like you are contributing like other employees but getting paid differently. Just my take.
ReplyDeleteI should clarify my 'pretty sweet gig' comment is in regard to weekday hosting. Guys like Sirois and Danny have different circumstances. One is a new dad, the other at that age where you start wondering how many more new beginnings are available at that stage in life. I doubt they leave a host position, ala DnJ. Or at all without Rhyner recruitment to a new opportunity.
ReplyDeleteAgree with Marge on the JV, that's always been there. It's just magnified by this entire new 5 hour block due to Norm's retirement coinciding with this DnJ play. For various reasons Friedo, Bascik, Arnett, and Gribble all came and went during those time slots before Sirois and Blake.
I think Dan for sure, and probably Jake too a less extent, got paid the tip top of market value for the time slot they had.
ReplyDeleteAnd there was Followill, Kevin Scott (who at that time was an up and comer a la pre host Jake who everyone thought was the annointed one), TC, Rocco (Varsity who imploded on air at Gordon's prodding and whose attitude did himself no favors was also openly undermined by Rhyner), Psycho Dave, and don't forget Expo. Please, whatever you do, don't forget Expo. He was the OG Grubes. If not for Expo there is no Grubes and the board op position isn't what we've come to know and love (drops, etc.). Oh yes, then there's the actual star of the station, and it wasn't even close, from damn near day 1 until his firing in 2007, Gregg The Hammer Williams.
ReplyDeleteAt the end of the day, it's the hosts. The handwringing and dire predictions after Sirois's (and inexplicably so regarding Julie's) departure were laughable and proved to be so. The Invasion numbers alone were never higher after he left. That's not a knock on Sirois, at all. It's about the shows. It's like Out of the Demo said, the way the ENTIRE show day works together is what makes The Ticket special. The Freak and The FAN also show mix, but for whatever intangible reason it's not the same. Neither have that seamless flow.
Like WilliePep said, lightening in a bottle. Has the magic spell been broken? I have to admit that all important bridge between am and pm drives is thus far swaying, and dangerously so. The Donnie and Matt pairing is off and there's no getting around it. I'm not sure if time fixes it. Matt was somewhat a medium size deal in the small-mid size city of Birmingham. He was because he basically took aspects from certain Ticket hosts (esp. Gordon) and added them to his own brand of oversharing and love of craft beer, pub trivia, and karaoke. He can't do the former here and that's an issue. Mino and Sean with Monty as the de facto 3rd while far better than DaM still has a way to go and I'm not yet convinced day/week/month/year after day/week/month/year of Sean and to some extent Mino is anything more than Ok filler. Right now there is no solid bridge and I'm not sure if there ever will be again, which isn't a good thing. Specifically for The Hardline, and on the whole for The Ticket and the concept of the P1. What ends up happening is piece meal listening in lieu of having the dial set on one frequency all day, every day.
Poor the Legend, I believe, is most likely correct in saying The Musers and Corby are pissed, and that Bob is heartbroken. All know that when Dan and Jake left, so too did that seamless flow, that ineffable vibe, that lightening in a bottle. And for reasons, rightly or wrongly, they neither agree with nor understand the genesis of the reasons.
Rocky Road said:
ReplyDelete"What ends up happening is piece meal listening in lieu of having the dial set on one frequency all day, every day."
This is what happened to me after Rhyner left... I was a 6a-10a; Noon to 7 guy... And then Rhyner left... And then 2020;and all that entails happened and I just couldn't bring myself to listen as much... Not to get too political, but 2016 and 2020 just broke/ altered so much entertainment for me, and huge chunks of The Ticket were implicated as well...
Bringing it back to sports - I'm basically like Bob after Favre left. Rooting for the team even when some of my favorite players have left in various levels of disgust (BaD radio with Jake was my favorite show by far since I started listening in 05/06; could not get on board with the Hang Zone try as I did). At some point though, probably when two of Gordo, Bob, or Jub leave, I'll be the annoying guy who used to wear a Heat LeBeon jersey and now has his Lakers one...
Less is more. Especially when the road is rocky.
ReplyDeleteCouldn't help ourself, could we," Zulu."
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleterpg
ReplyDeleteRPG??
ReplyDeleteRocket Propelled Grenade? What does that mean in the context of Ticket talk Alec Mason?
So I’m not sure I understand. The TRO hearing is set for tomorrow, but Dan and Jake got an extension for replying to the complaint until September 5?
ReplyDeleteTo file an answer in Federal Court you have to admit or deny each allegation in the original complaint. You can't just file a general denial that says you deny the lawsuit like you can in State Court.
ReplyDeleteFirst, this type of pleading costs a lot of money because it takes a while to complete. So there is a few hours of paying an attorney to avoid if they settle.
Second, the full answer denying or admitting each allegation could result in more of the disclosing the dirty laundry to the public that D+J were trying to prevent by trying to mediate the case before the TRO/PI hearing.
The extension for the answer was just trying to put it off to try and settle.
D&J filed a witness list for tomorrow's hearing. Dan, Jake, Cat, Bennett, Adam Romo of Eatzi's, and Jordan Michael of Alamo Drafthouse.
ReplyDeleteInteresting that SD+J did not list Bob or Corby, who were alleged by them to be present at the meetings upon which they're hanging their unfair labor practice charges and jurisdictional argument (NLRB).
ReplyDeleteThey list the Eatzi's and Alamo guys as testifying about "Plaintiff's sales practices," which would not seem to be at issue here. I would have thought they would be testifying about the solicitation allegations.
Does this mean no settlement? Not necessarily, but it certainly means "no settlement ready for at least a handshake as of the time of this filing."
Hearing tomorrow is at 9:30.
Yeah, the plaintiff sales practices don’t seem at all applicable to the issues before the court. It still seems to all pivot on Jake’s non compete. And no matter how bad, high-handed, ham-fisted, etc the tickets sales practices are, can someone explain to me how they relate to anything in Dan and Jake’s complsints or Cumulus’s original lawsuit?
DeleteIn fact, it makes zero sense for Dan and Jake to call witnesses about the solicitation charge. All Romo and the other guy can testify to is that TDZ didn’t solicit them for advertising. That doesn’t prove they didn’t solicit others. And I just went back and reread the Cumulus complaint. They don’t name an advertiser.
How dumb will TDZ look if they get Adam Romo on the stand to testify that he wasn’t solicited by D/J, only to have Cumulus intro different advertiser?
C
I'd love to see how Dan and Jake handle cross-examination. They will not have gone through a deposition to get used to it.
ReplyDeleteIf they're prepared well, they'll keep the snark to a minimum (like zero) and answer questions briefly and truthfully.
If they're in sports-comedian/worker-jihad/smartest-guy-in-room mode, and if Cumulus's trial lawyers are competent, they could appear evasive and convey a poor impression to the judge on their credibility.
I expect the former, not the latter.
I'd like to hear from our federal litigators, but I'm a little surprised they filed this list in the first place. Did I miss it in a prior court order? I don't believe it's a requirement that witness lists be filed in advance of a hearing like this -- such lists usually must be disclosed before a full trial, but again -- would like to hear from a pro.
ReplyDeleteIf they weren't required to file it, then filing it does nothing except assist, at least a little, in Cumulus's own preparation for the hearing.
Not a lawyer but does adding clients to the list help with settlement. Does Cumulus really want to cross examine clients. Could be a bad look.
ReplyDelete@Out of the Demo: Well, that depends, of course. I believe at least the Eatzi's guy was at the first hearing, so Cumulus already knew about him.
ReplyDeleteAnd I get the idea that Alamo -- not sure about Eatzi's -- no longer advertises on The Ticket.
And unless Cumulus has some reason to believe they're lying, it may not cross-examine them at all. Remember, there has been no discovery in this case, so no one has any phone records or other inculpatory or exculpatory evidence other than oral testimony, documents/computer records in their own possession, and affidavits. "Dan and Jake never called us, we called them, we swear." Cumulus isn't going to say "you're lying" without some reason to think they are.
Does Cumulus have other advertisers who will testify to the contrary (i.e., the lads did contact them)? We don't know.
Finally: If their testimony is the difference between winning and losing (doesn't seem like it here) -- you bet they'll cross-examine their own clients.
But what would they cross examine them about? TDZ are calling them to testify about Cumulus’s sales practices. So let’s say Adam Romo tried to cancel his contract once Dan left. And Cumulus wanted to hold him to his contract. (An aside- many regular advertisers are in what we call annuals- you agree to spend x per month, or X per year, x amount in x number of months, etc. and if you agree to spend X per year, station will cut you a deal, take Y % off as a discount, bonus you spots, bonus weeks, sponsorships, etc)
ReplyDeleteLet’s say Romo wanted to cancel and Cumulus held him to terms of his contract, I’m not sure how that helps TDZ in their case. They’re not suing Cumulus for their sales practices.
I agree, Cumulus probably doesn’t want to get cross ways with an advertiser, but I’m just having a hard time understanding the relevance of their sales practices to overturning a TRO that’s based on non compete agreements.
C
Only thing I can think of re: Eatzis would be if D&J have discussed funding their new venture with them, and their approach is different than Cumulus, it could go to whether their new venture is competitive in terms of advertising sources. I.e. if Eatzis gets up there and say we decided not to advertise with the ticket before D&J left because we didn't want to do the required annuals anymore, but when we reached out to D&J and all they offered was a per play rate/a la carte pricing. D&J show that, setting aside listeners for a different format of presentation, they aren't even competing on the advertiser front.
ReplyDeleteNot at all a strong approach, in my view. But its perhaps something.
Annuals aren’t required. Call the station I currently work for tomorrow and I can sell you spots. You’re just going to pay a lot more. And if you read Cumulus’s reply, they focus not on radio vs podcast difference, but that both are competing for audio listeners. I don’t see how Eatzis saying they were considering sponsoring TDZ podcast just because it’s a different format helps TDZ. I’ve harped on Jake’s non compete, but there’s non solicitation clauses in the D/J contracts also.
ReplyDeleteC
didn’t someone in one of these threads say that D&J no longer working at KTCK released them from
ReplyDeletetheir contract? It was a car dealership I believe. I know nothing about advertising contracts of course so have no idea if you can even do that.
Well, Eatzi's guy is D&J's witness, not Cumulus', so I don't find the contents of Cumulus' reply as particularly informative on the question of what testimony D&J are planning to draw out. D&J may gauge their competition argument - as to the listener- is weak (as do I). Perhaps D&J have offered a sole sponsor for the whole show, or some other unique advertising structure. If there's a difference in their respective approaches, then it might make sense to stress it tomorrow at the hearing.
ReplyDeleteAnd as I wrote, I don't view it as a strong approach. But I can't think of another angle for calling him as a witness from here in the cheap seats.
It's called: Throwing shit against the wall to see if any of it will stick. That's your Labor Dram Team--or whatever that person dubbed them--for ya. Where are all those people, btw? Maybe I should say, where's that person with the different handles and thinly veiled differing styles of expression.
ReplyDeleteC minus,
ReplyDeleteDon’t forget to cash your Cumulus paycheck by the end of this week. You’ve earned that money for all the water you’ve been carrying.
Yeah, you hear that, C minus?!?!?!?!?!? Javier's not foolin', either. Now I'm sure you're awfully steamed at Javier for that pointed jab. But he has a point! How DARE you come at this situation from a common sense angle! You dirty rotten scoundrel you.
ReplyDeletePunching F5 finally pays off. TRO hearing for tomorrow cancelled to allow more mediation.
ReplyDeleteC
And accuse me of carrying water if you want, I predicted that Cumulud would get the TRO. Very close, both sides agreed to an order that was what Cumulus was asking for.
ReplyDeleteThis may be more carrying, but Cumulus is getting what they want right now, no new TDZ episodes.
Dan and Jake don’t appear to be getting much out of this mediation right now. So if they had a winning argument, I would think they’d be itching to get to court to overturn the TRO.
But instead, more mediation. I think TDZ have realized the problems Jake’s non compete causes them. And they’re trying to find some sort of compromise.
C
I’ve come around on C- In spite of his use of hypothetical writing and reliance on ratings he is making good points.
ReplyDeleteThe reason I default to ratings is that so much criticism is subjective. For all the faults with Neilsen ratings, it’s an objective measure we can all look at.
DeleteFor example, when people say things like “Ben and skin are a more interesting show than Norm and Donovan”, we can look at ratings and see while that may be an opinion, objectively, per Neilsen, a lot more people prefer Norm and D to B&S.,
C
C- I understand. You provide a good angle based on your knowledge. Sorry for calling you out on it.
DeleteYes, a car dealer said their ad agreement provided an out when Jake left
ReplyDeleteLet's see here. Don't want any public airing of certain things because, you know, that could get uncomfortable. Narrative incrementally changing. Ever more moves made for more mediation. Yet. The goal is, what is that again? Oh yes. Labor Crusaders, fucc The Man. Sorry, was rather skeptical at the onset, now I'm flat out not buying any of it. The Fellas were misled and that old bastard hubris took the helm.
ReplyDeleteWell, Brideshead Revisted Man, the fellas might have been misled, but one of the fellas is on the downhill slope of middle age, slouching toward senior citizenship, while the other is about to embark upon middle age. Kids, they aren't. Neither are they nexperienced in how the world in general and their media world in particular. Whatever the outcome here, win or lose, they are the master of their domains.
ReplyDeleteI think the Evelyn Waugh renaissance here is very cool. But he wrote many other great books.
ReplyDeleteTwo thoughts about the latest order cancelling tomorrow's injunction hearing.
ReplyDelete(1) Earlier in this thread I speculated, based on nothing but my ass, that the SD+J team might not all be on the same page. I'm still wondering. They file a witness list that looks like they're rarin' to go, and now, the mediator has requested more time. The mediator would not do this without the agreement of the parties, so we can assume that there's still talking going on.
(2) Nothing in that electronic order says anything about extending the Agreed Temporary Restraining Order. Without a further order, it will expire tomorrow (August 29). Perhaps the parties have a separate agreement, off the record, to maintain the current status quo until the reset hearing (or settlement).
I'm usually fairly understanding of references, but the Brideshead metaphor is whooshing right past me. Yes, I do know the book. Anyone care to advise?
ReplyDeleteWell, Pshit, lemme splain 2 u.
ReplyDeleteYou got this commenter who goes by both the name of Zulu and Charles Ryder who likes to bully a particular frequent commeneter, Rocky Road, who, while I don't necessarily agree with its somtimes douchey opinions, I have to admit comports itself in a how shall we say anondyne way. Now. This Zulu shit keeps small town I took 2 post grad courses from TWU and I KNOW PROSE GODAMMIT shaming this poor SOB Rocky Road for deigning to either post comments with not enough paragraphs or for even existing. It must be said that you, Pfart, only last week, intervened and yelled STOP. FULL. STOP. STOP. It did. Good on you for finally policing something other than the now anomalous anonymous comment. Brilliant on you. Anywho. So. This poor bastard, Rocky Road, has the TEMERITY to post another comment. Next thing you know, there's a not so veiled ad hominem, ya know, the thing you said NO NO NO NEVER about, by a certain Charles Ryder. Charles is the protagonist of Waugh's Brideshead Revisited. Put 2&2 together. Ryder is Zulu. From that point forward, all I can guess is that Rocky Road decided to "fight back" by countering with pithy comments "made" by characters from the Waugh novel. If you doubt Zulu's fuckface involvement, look no further than his sudden commment re: loving the Waugh refs but pondering aloud, "say gentlepersons, aren't there other works of his we can discuss?" Or some such. Yah, you bet there are, Zulo/Charles Ryder. Why don't we begin with the Sword of Honour Trilogy? Since you're the expert, bear out for us the impetus of Crouchback's final act. Was it suicide? Was it folly? Tell us? Tell us? You. Zulu/Charles Ryder/Cyber Bully, tell us. Won't you?
This is where we find ourselves. Referencing Waugh.
ReplyDeleteWhy don’t we go ahead and Waugh
ReplyDeleteI did hear several EATZIs commercials Sunday during WIP. I haven't heard anything from Alamo. Although, I use the app and FF when I can through breaks.
ReplyDeleteAlamo is listed as a former advertiser in D&J's witness list. They've shifted their spend to the Freak. Eatzi's continues to advertise on the ticket.
ReplyDeleteAlso is it so far-fetched to think that dropping that list was a tactic (perhaps just one of several) that caused cumulus to request more time to mediate? I doubt either side is foolish enough to piss off a federal judge by asking for yet another delay if they don't genuinely believe they'll come to agreement.
I agree, you don't cancel and emergency hearing and think you can get it back on the docket anytime soon or if you do get it reset, don't plan on winning your "emergency" hearing when you have passed on it twice after the Court already prepared for the hearing. The Judge will think your emergency isn't so emergent.
ReplyDeleteI once had a judge refuse to set an emergency hearing unless life or liberty was at stake. If it was neither of those, it wasn't an emergency.
I would imagine Cumulus knows this and the parties are close to settling and are just ironing out the last few issues
Looks like Dumb Zone will be back up today (according to Dan)
ReplyDeleteOdd that you would punt a hearing for continued settlement discussions & not maintain the status quo.
ReplyDeleteNot just odd, it's nonsensical. What on earth are they doing?
ReplyDeleteDon’t look at it in a vacuum.
ReplyDeleteThey will be podcasting later today.
Hearing yesterday canceled to continue constructive mediation.
We might be looking at a settlement.
Lol wtf is Dan trying to catch a contempt charge? I hope for his sake the settlement is done, signed and the ink has dried.
ReplyDeleteWell if there's a settlement that allows D&J to be immediately dropping podcasts, what kind of settlement is that?
ReplyDeleteWas speaking more to the social media blackout her honor imposed
ReplyDelete...that expired earlier today
Delete@Friendly Reporter: No rule that a settlement has to favor one side or the other. Usually, they don't, or there's no settlement. If this podcast IS the result of a settlement -- which I kind of doubt -- it may be one that, for example, allows podcasts but prohibits them from working for another station for some period of time.
ReplyDeleteThe fact that there was a TRO favoring Cumulus doesn't have a ton of predictive value as to what a settlement might look like.
My guess: If there is a new podcast up today it would have more to do with the lads thinking the TRO has expired than that there is a settlement. The wording was that the TRO was to last "until" today, which arguably means that it's expired as of today, so the podcast would be OK.
Plainsman: I agree, and often settlements are mutually distasteful. But if a settlement by Cumulus permitted D&J to immediately continue podcasting and prohibited them from heading to terrestrial radio, it would make the entire exercise look a bit silly, since it was initiated when they were podcasting and not broadcasting on terrestrial radio.
ReplyDeleteI also doubt that there is a settlement at this point, but I am baffled by the behavior of both sides based on what we the public know. Dan says another podcast is coming. While the agreed order has expired according to its terms, immediately commencing the complained of activity during supposed settlement negotiations is at a minimum quite a bit of bad faith to the mediation process and would harden my heart against settlement if I were Cumulus.
But I am most surprised by Cumulus simply permitting the agreed order to expire and agreeing to punt the hearing again without seeking any further protection from the court. Now it's basically like the last week didn't happen.
Where are we seeing a podcast? What I saw was a post from Dan with dude from the Wire “tell them we back up”. Doesn’t mean we’re getting a podcast. Could just mean settlement has been reached and they’re out of the TRO enforced legal limbo.
ReplyDeleteAnd I’ll just say this, for 2 guys who came out guns blazing to take this to court, TDZ must have blinked if a settlement has been reached. Going to be interesting to see who gave up what to settle.
C
C minus, Dan captioned that photo with "Coming later today..." and Jake responded with "there's just too much ryder cup news. JT?!?!?!?". We're definitely getting a podcast today.
ReplyDeleteA new podcast is the only thing that would be relevant to his followers in context of 'we back up'. You're free to wait until it's posted, but it's obvious that's what he means
ReplyDeleteMaybe it was Cumulus shitting bricks about the possibility of an unfavorable NLRB hearing, nullifying the noncompetes of all of their on-air talent across the country.
ReplyDeleteLooks like DZ has lost over 110 subs in the last week
ReplyDeleteThis board seems to have a real failure of imagination surrounding any developments that don't look like a clear-cut advantage to Cumulus. Most recently in the idea that the advertiser witnesses couldn't possibly have something to add or that it's nonsensical that a podcast might go up today.
ReplyDeletePeople with far, far more information than us know what's going on here. It could be that they're doing something extremely negligent, but it's far more like that there's a plan that you just aren't in on.
It could be that the advertisers wanted to sponsor a host's podcast as part of their agreement, and Cumulus said they couldn't for a reason that is beneficial to the defense. It could be that the podcast is starting back up, or it could be that the settlement lets them do a final show for 1-6 months to explain to their paid subscribers what's taken place.
I'm fine with all the speculation, but making firm value judgements on tea leaves seems exceedingly strange to me.
Serms like the same person keeps commenting unfer various names. Usually following their comments with an atta boy fof their own doing under a different name. Kind of a give away, FYI.
ReplyDeleteWhatever.
Charles and all your orher handles, your comment is one gassy non sequitur. Seen your handiwork over at reddit dumbzone, btw. NB to all. If you think reddit ticket is funny, go sample reddit dumbzone. Hilarious stuff. Oh, and they hate this place and most especially C minus. Don't you, Charles.
I’m a longtime lurker, first time commenter. From my perspective, this board is equally biased against Dan & Jake as Reddit is biased in their favor. From the “smiling Jake” nickname to the way every move is painted as a win for cumulus. There haven’t been any wins yet, it’s all speculation. And there’s nothing wrong with wanting the cumulus corp to win this in court, but just acknowledge your biases.
ReplyDeleteThis blog is getting worse than reddit FFS. It looks like one person listing under multiple names going after people.
ReplyDeleteI just want to come here for unbiased banter and it’s getting worse than what facilitated non anonymous posting.
My goodness, what thin skin. Speaking of weaknesses of this board, any time two people agree the other side accuses them of multiple accounts. I like the legal analysis I can find here, even though I don't especially agree with the slant of it - I find the lack of agreement useful.
ReplyDeleteBut for the record, I don't need the attaboy, and I don't post on reddit. I've posted here twice, once to post the Texas law blog article about the case, and once just above.
I'd invite you to engage with the actual content as opposed to brushing it off though - it was hardly critical of this board or anyone here beyond pointing out a *potential* blindspot.
It's hilarious to me that whenever someone comes in here to call out what appears to be pretty obvious bias against D&J that the knives get whipped out immediately. D&J are alternately morons who've been led astray by bad lawyers or morons who are on some crusade destined for failure. Or Jake has been somehow misled by Dan because of course he couldn't make this decision on his own for himself as an adult. Or Cumulus has them dead to rights. DEAD TO RIGHTS I TELL YOU!
ReplyDeleteBut Occam's Razor would seem to be pretty straightforward. D&J filed an NLRB complaint before being sued by cumulus. The boys agreed to not podcast for a week (during which Dan was basically unavailable anyway) and stay off social media for a week (social media being pretty distasteful to both of them anyway). Now those restrictions are expired and the only explanation is...they screwed up or are about to? Jesus, folks. So many of you decided so long ago that You Knew What Was Going To Happen. And now you're going through major mental gymnastics to fit current events into What You Knew Was Going To Happen.
Simplest explanation? There's a settlement. And if the guys are podcasting, Cumulus folded like a tent under the likelihood of current and former advertisers telling the public how badly they want to spend their money elsewhere AND WHY. They were going to hear current leadership either admit to breaking laws (telling them not to collectively bargain or discuss compensation) or lie to a federal judge. Both central tenets of cumulus's argument. Both without merit.
I ain't on Reddit. I come here because there's often early truth to talent changes and the like. But this event has exposed that, while MTC is lightyears better than Reddit, it's either biased in a massive way toward cumulus or driven by guys who need to be right the first time despite a ton of evidence to the contrary.
Cheers.
@ KTDK Sanger
ReplyDeleteThey lost those subs because the first month anniversary just passed 3 days ago on the 26th and I'm sure the people just signed up for a single month on the first day or two of the Patreon coming up. Once they drop another podcast or two, I'm sure they will re-sub.
Run, you simplest explanation is way off base. The simplest explanation is that D&J are podcasting because Cumulus' lawyers screwed up (again) by not putting in the TRO agreement that it stays in effect until the mediation is done. Otherwise it is all status quo.
ReplyDeleteAnd it was D&J who requested the delay, Cumulus' council stated they were ready to proceed. I don't think Cumulus is afraid of anything in this hearing, certainly not folding like a tent.
Lol
DeleteI'm convinced that 90% of the posts in here are from a single person that suffers from multiple personality disorder ...
ReplyDeleteShort time lurker, first time commenter. And not on Reddit. It's very odd how people who receive nothing from Cumulus are so quick in this comments section to simp for the big corporation. I don't know that Dan and Jake are completely in the clear but there seems to be a lot of indicators that they are at least not doomed for all time, as some commenters here would have you think.
ReplyDeleteI understand that the emotional connection to a station for almost 30 years runs deep. And it's very weird that people assume D&J would go to the Freak when podcasting is the medium in which professional athletes prefer to appear. The next big NBA superstar isn't chomping at the bit to go talk to terrestrial radio hosts. They want to be on Drinks Champs or whatever. Being on terrestrial radio is like being told you have to go to grandma and grandpas to talk about how school is going.
I definitely think that Cumulus absolutely did not want big advertisers going under oath to talk about why they don't plan on advertising with Cumulus anymore. Hell, that has repercussions across all stations of their nationwide. I think a deal is being worked out and we likely will never know all the details. But it seems pretty clear that Cumulus isn't playing the unrelenting hardball that some in this comments space have previously believed that they were absolutely playing.
@Run
ReplyDeleteI don't think you actually know what Occam's Razor/Law of Parsimony actually is and how it is employed.
@Charles
It's a bit rich when someone harps on the biases of others while displaying their own.
@Nelly
If you are a longtime lurker, then why would you comment on "Smiling Jake" when it's Smiling Dan. In fact, Plainsman explained why he dubbed Dan with the nickname. Smiling Jake has never once been said, other than by you. Sorry, your comment doesn't pass the smell test.
@Mark Bavaro
I've been following this conversation closely for now well over a month. I don't recall a significant number (if any) of comments claiming Dan and Jake are "doomed for all time." That they might've harmed their careers, yes. But that's merely an opinion, and like your own, they are entitled to it. Nor is it weird to posit Dan and Jake ending up at The Freak. Why do you think that is a "weird" assertion? As well, please see my comment above to Charles regarding pointing out others' biases while displaying your own.
@Joey Jo-Jo Junior Shabadoo
First off, great name. Second, I totally agree with you but with one quibble: I think it's 2 or 3 individuals. Hoping that once all this is resolved and the aftermath of the resolution dies down, MTC gets back to being what it was before this latest episode of Ticket drama.
I will agree with the sentiment that there are some regular contributors that appear to be on Cumulus's side, or at least, and probably more accurately put, not on Dan and Jake's side -- for a myriad of reasons. But I also think some of the more emotionally driven comments (mostly pro Dan and Jake) conflate legal/wannabe legal analysis with taking a side. On the whole, and when you place the volume shooting trolling aside, the comments are pretty evenly balanced. Having said that, it's OK to take a side, and to agree or disagree about it. Spirited but respectful and honest discussion is what this place is all about. Calling people simps, shills, fanboys, reddit idiots and the like only serves to engender an in kind response, which kills any fruitful dialogue.