Saturday, August 5, 2023
BREAKING: CUMULUS (through Susquehanna subsidiaries) HAS FILED SUIT AGAINST KEMP AND MCDOWELL -- DETAILED SUMMARY OF COMPLAINT -- PLEADINGS MISSPELL "BENNETT," FAIL TO CITE TX NONCOMPETE STATUTE
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https://dockets.justia.com/docket/texas/txndce/3:2023cv01746/379893
ReplyDeleteAt present, this is all I have. I don't know if a motion for emergency injunctive relief (temporary restraining order or temporary injunction) has been sought or the contents of the complaint, if one has been filed.
ReplyDeleteWhere the lawdogs at with their Pacer subs? Break it down for us gang
ReplyDeleteI have learned that Cumulus (I'll use this instead of the Susquehanna entity names, a holdover from the 2005 acquisition) is represented in Texas by Baker & Hostetler. However, the Atlanta firm of Wargo, French & Singer will be seeking temporary admission to the Northern District. Baker is a national firm and very reputable; WARGO, FRENCH & SINGER LLP looks like a boutique corporate firm with offices also in Miami and Los Angeles.
ReplyDeleteOnly surprise I see from this very limited information is that it was filed in federal court. Breach of contract cases are typically filed in state court. The basis for jurisdiction is listed as 28 U.S.C. 1331, "federal question" jurisdiction. Perhaps the pervasive federal regulation of radio by the FCC is alleged to make this a "federal question" case, but won't know until we see the complaint.
ReplyDeleteI'll try to keep you up to date, but I have some duties today that will keep me away from the computer. I'm hopeful the complaint will be posted somewhere.
ReplyDeleteI should add that the docket entry only says "complaint," which may or may not include a request for a temporary restraining order or temporary injunction.
I am no longer with a law firm and do not have free access to PACER, the federal pleadings database. But we undoubtedly have some practicing lawyers out there who do. Doesn't look like any of this is under seal, so I expect we will have the complaint within hours.
This comment has been removed by a blog administrator.
DeletePacer won't actually charge you if you pull less than $15 a quarter, so you might try if you are at a computer, I'm in the sticks on my cell otherwise I'd pull it and post
Delete@See UNT: (1) I went to PACER but they still want registration, so I'll wait for someone else to fetch it. (2) I'd prefer you chose a different name. Not deleting you, but . . . . Thanks.
ReplyDeleteThis comment has been removed by a blog administrator.
DeleteOne mystery solved:
ReplyDeleteLaw.com is reporting that the causes of action are trademark infringement ("by creating a similar show, ‘The Dumb Zone,’ and rebranding ‘Hang Zone’ as 'Dumb Zone' with a similar logo online") and breach of employment contract. That description comes from the Law.com squib, and not the complaint itself, which I still have not seen.
It's the trademark count that gives the federal court jurisdiction, and the breach of contract count comes along for the ride under the doctrine of "supplemental jurisdiction" (28 USC 1367).
https://www.law.com/radar/card/susquehanna-radio-llc-v-kemp-et-al-49837990-0/
Don't know what time of day this was filed, but probably late, possibly after hours Friday. Interesting -- late Fridays are when "news dump" items get released, hoping for reduced media coverage.
ReplyDeleteSide note - going back to that long commenters story of what happened to at ticket over the years, I think “Jil” is an exception. I think he simply was tired of the job he had done for years and years (waking early), and also he planned to transition and didn’t want that happening while on air.
ReplyDeleteGetting spicy now.
ReplyDeleteCONFIDENTIAL TO POOR THE LEGEND:
ReplyDeleteI liked your theater of the mind entries on the last thread. Very well done, nicely written.
May I ask you to give the lawsuit news a few days to steep, and then cut-and-paste them in this thread? I want more Confessors to enjoy them, whether fantasy or reality.
No problem.
DeleteAfter reading that, I genuinely hope their council knows what they're doing. And first blush based on Dan and Jakes' actions of the last two weeks - it would appear either they don't or the clients ain't listening to them.
ReplyDeleteI know just enough about the law to be dangerous, and Cumulus is not f'ing around. The firm they hired, the seriousness of the charges and the requested action in that filing is hardcore lawyer stuff. It includes their individual employment agreements (salary/bonuses redacted) and they clearly state that podcasting (w/ basically any sort of production) is part of what is included in their NC's. This a wicked "peek behind the curtain" for everyone involved.
Pretty clear what Cumulus has a stake, and it's not just what THZ meant to the station, but IP, employment contracts, NC's and a load of stuff that this situation specifically now puts at risk - and anyone with a reasonable mind could see why none of it could be "just let to happen" because of the larger ramifications for any of the company's talent base.
They could have just sat out the six months and been done with it all. Clean. This is going to get really ugly, and just maybe - that's what they wanted all along. Either way, hope the boys have their savings lined up because no legal firm worth its salt does this level of work for free.
SUMMARY OF THE COMPLAINT
ReplyDeletePART 1
I now have the complaint filed yesterday by Cumulus against Dan and Jake. I will summarize and quote some of the nontechnical material in this and following comments.
The complaint contains six counts:
(1) Breach of the following contractual provisions: non-compete provision, non-solicitation provisions, confidentiality provision, and unauthorized recording provisions – against both Dan and Jake
(2) Breach of the non-disparagement provision – against Jake only.
(3) Conversion (this is more or less equivalent to “stealing”) – against both Dan and Jake.
(4) Breach of fiduciary duty based on their “receipt of Confidential Information in po positions of seniority” – against both Dan and Jake.
(5) Violation of Lanham Act (this is the trademark violation count) – against both Dan and Jake.
(6) Attorneys’ fees, based on a contract term requiring defendants to indemnify the company for all costs and expenses resulting from the enforcement by the company of any of the terms of the agreement, or any damages to the company resulting therefrom.
The complaint concludes by asking for the relief “requested in [Cumulus’s] Application for Injunctive Relief. At this writing I do not have that filing. The first paragraph of the complaint states that plaintiff seeks “emergency injunctive relief and damages to halt and prevent Defendants’ continuous, flagrant breaches of contract and misappropriation of Susquehanna’s intellectual property rights,” and elsewhere mentions the need for an emergency temporary restraining order and preliminary injunction.
We can make a pretty firm educated guess that Cumulus will seek to take The Dumb Zone off the internet and stop further podcasts, stop all contact with advertisers and listeners, stop using Cumulus’s intellectual property, and, in general, stop doing pretty much everything except sitting on their asses for six months. It may also seek an accounting (an audit of The Dumb Zone’s finances), but that’s a guess on my part.
KEGL, iHeart, and The Freak are not mentioned anywhere in the complaint.
SUMMARY OF THE COMPLAINT
ReplyDeletePART 2
The factual allegations of the complaint occupy 15 pages. While I remind everyone that allegations are not proof, this is what’s called a “verified complaint,” wherein the plaintiffs file a “verification.” Dan Bennett signed it on behalf of plaintiffs, stating that “I have read the foregoing complaint and know the factual contents contained therein are true and correct to the best of my knowledge.
While it does not change the legal effect of the document, Dan Bennett’s name is misspelled “Bennet” twice.
Here are the highlights.
• Description of The Hang Zone on The Ticket. “Aside from listening live on The Ticket’s radio station, listeners could access The Hang Zone segments on demand on theticket.com and thehangzone.com. Further, The Ticket also uploaded The Hang Zone content on multiple podcast platforms (including Spotify).”
• “[I]n direct violation of their non-solicitation and non-compete agreements and while still employed by Susquehanna, Defendants began recording an identical show (hosted on the internet as a podcast) called “The Dumb Zone,” which follows the same program format as The Hang Zone, focused on a male audience and on Dallas-area sports. Within mere days after leaving their employment at Susquehanna, Defendants broadcasted The Dumb Zone on patreon.com/thedumbzone for $6.90 per month to the same listeners who used to tune into The Ticket. In addition to following the same programming structure, Defendants talked at length on The Dumb Zone about their contract negotiations with The Ticket,1 mocked Susquehanna’s cease and-desist (offering instead to “cease-and-cist”), threatened to release conversations Defendants illicitly recorded with Susquehanna executives containing confidential information, criticized Susquehanna’s hiring and programming decisions, and actively disparaged Susquehanna employees.”
• In particular, with respect to the non-disparagement provisions, “Defendant Kemp has falsely claimed on The Dumb Zone that Susquehanna did not increase his pay from when he was a producer to when he became a host for The Hang Zone. Not only does the Kemp Agreement provide for yearly raises to base salary, but Defendant Kemp’s total compensation more than doubled between 2019 and 2022.”
• Defendants stole Cumulus’s intellectual property by “rebranding The Hang Zone’s social media accounts owned by Susquehanna. For instance, Defendants commandeered the Twitter account ‘@thehangzone’ – which has nearly 22,000 followers and operated as a Susquehanna account since 2011 – and changed it to ‘@dumbzone69’ which it now uses to promote The Dumb Zone. For the YouTube channel owned by The Ticket, in addition to changing the name, Defendants altered The Hang Zone’s logo, blacked out ‘Hang,’ and superimposed ‘Dumb,’” with an accompanying illustration. They also “redirected” The Hangzone’s website (thehangzone.com) to a webpage promoting their Patreon “and rebranded” social media accounts.
• Dan and Jake “have begun soliciting Susquehanna’s sponsors and customers to advertise on The Dumb Zone in patent and willful violation of their Agreements.”
SUMMARY OF THE COMPLAINT
ReplyDeletePART 3
The complaint contains extensive excerpts from their employment agreements, including compensation provisions (the numbers are redacted). I’m not going to excerpt them at length here. I note that definitions of “Company Business” includes podcasting, as does the definition of “Competing Business.”
The complaint also notes their agreement to provide by all company policies, which includes a written “Prohibition of Unauthorized Recording,” which is excerpted in the complaint. Which they are alleged to have flagrantly violated: “After leaving Susquehanna, Defendants stated publicly that they intended to release these recordings. Indeed, Defendants bragged in a YouTube uploaded on July 20, 2023: ‘The first thing that we’re gonna put out there content-wise is the full content of every single phone call we’ve had with the company . . . we’re just gonna [sic] release all of that[.]”
With respect to the negotiations, the complaint says that Hang Zone compensation had been agreed during negotiations, but that they also wanted to start an “independent podcast.” It states: “Because Susquehanna already produced podcasts, including those hosted by The Ticket and including ones uploaded daily which used The Hang Zone branding and content, Susquehanna could not agree to Defendants’ requests because it would directly compete with Susquehanna’s podcasts and violate the non-competition provisions in the Agreements. Susquehanna offered Defendants a podcast which they could host independent of The Hang Zone branding on Susquehanna’s podcast network with possible revenue sharing options, but Defendants declined.”
And, as noted above, the complaint alleges that the lads had already begun recording podcast segments.
That’s the meat of it.
I remind everyone that this is Cumulus’s side of the story and that Dan and Jake have yet to respond, and deserve their day in court.
END OF SUMMARY OF THE COMPLAINT
As noted in the foregoing summary, there is apparently a separate motion filed titled "Application for Injunctive Relief." I am trying to get it. It's possible that it will be accompanied by affidavits by Ticket employees that will shed some additional light on matters.
ReplyDeleteIt will also detail the precise relief Cumulus is seeking in the short run.
Stay tuned.
The case has been assigned to Judge Karen Gren Scholer. She was initially appointed by Obama, but there was a backlog of nominations and it expired. Trump re-nominated her and she was approved 95-0.
ReplyDeleteShe has major big-firm background in business litigation.
She is the first Asian-American federal district judge in the state of Texas.
I don't know anything about her decisional history, but might take a look. In general, however, one might expect her to have a very good understanding of the types of contracts at issue here. On balance, without knowing more -- probably not a good development for SD&J.
Awaiting more updates from OU812. With baded breath I might add.
ReplyDeleteSo on a quick reading, some notes
ReplyDeletedans contract doesn’t specify podcasting as competition, but Jake’s does.
I called the IP issue, the Dumb zone is cumulus (but still Susquehanna somehow?) property. Using the name, the logo, the Twitter account, etc, all infringements.
Anybody else notice that the non compete tolls during the pendency of litigation? In other words, if this case takes a year to settle, the 6 month non compete kicks in only once the liitigation is settled.
Damages- awfully dumb of the dumb zone to go to war with a company with deep pockets when you’re liable for their attorneys fees if you lose.
Disparagement- again awfully dumb for Jake to disparage the company- saying you didn’t get a raise is disparaging of you actually did, and the complaint says his pay doubled from 2019 to 2023. And that’s a pretty cut and dried set of facts, if Cumulus (Susquehanna?) introduces compensation memos showing increases, there’s not a good way for Jake to fight that.
Tangent- they said his pay doubled. With what Sirois has said he made, I think it’s entirely possible that he went from 40-45-50 to 90-100, and that’s the issue- that Jake thinks he’s worth a lot more than that. And he may be, but are you going to pay dude with 3 years hosting experience the same as dude with 30 years experience?
All in all, with the podcast language that is in Jake’s contract, I don’t see how this goes well for TDZ.
C
Something to consider.
ReplyDeleteI don't know how Dan and Jake will fare in this lawsuit. Could even win it on technical grounds, or a court unsympathetic to restrictions on former employees.
And Dan and Jake may not be planning ever to have another job, or perhaps another media job, ever. Perhaps their plan is only to start their own media empire, a la Tucker Carlson, and never ever have another boss.
But:
If you were a media property considering hiring one of these guys, and you came upon this verified complaint signed by Dan Bennet(t) in the course of your due diligence, would you hire him?
Will iHeart?
I don't think that the Dan Bennet(t) thing is a huge negative. Especially with their industry; it's easy to explain why the issues happened in say 3-5 years.
ReplyDeleteIn addition to misspelling "Dan Bennett," there's another hole in this complaint, which suggests to me that this was drafted in Atlanta:
ReplyDeleteThe breach of contract count relating to covenants not to compete fails to allege that the contract complies with section 15.50 of the Texas Business and Commerce Code, which sets forth the requirements for validity.
Basically, "a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made [i.e., an employment agreement qualifies] to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee."
Now, as it happens, this contract almost certainly does meet those requirements. But it was amateurish to neglect to invoke the Texas statute to allege the validity of the noncompete.
Reddit is filled right now with people saying eff cumulus and eff the ticket. And I get that. But damn, think how that deposition will go
ReplyDeleteLawyer “ Mr kemp will you read paragraph x of your employment agreement
Jake- (short version) podcasting is a competitive business
Lawyer “Mr kemp read paragraph x
Jake - I took extra money and agreed not to go to a competitive business for 6 months.
I get the eff cumulus sentiment. But do TDZ take any blame for immediately starting a podcast the week they quit? And it’s possible Dan might have some wiggle room. His doesn’t specifically say podcasting. Jake is hosed in my opinion.
And how radioactive have those boys just made themselves in the DFW radio market? If you’re the Fan or the Freak, and more specifically their corporate bosses far away, do you want to hire people in the midst of litigation or that have been trouble for another radio company?
C
@C minus: I did notice those interesting features, and especially the tolling (i.e., extension) of the noncompete during the period of litigation -- if Cumulus prevails, we may not hear from our lads for quite some time on any modality, including iHeart.
ReplyDeleteAlso, @C minus: I hesitated to characterize Dan and especially Jake's conduct as "dumb," but man. I do wonder what advice they got, and whether they took any good advice they got. The complaint details an incredibly risky and arrogant (and ignorant) course of conduct.
Doesn't mean they're going to lose. Doesn't mean Cumulus is absolutely telling the truth, whole truth, and nothing but in the complaint. But again -- that is a verfied complaint about which Dan Bennett says he has personal knowledge that he swears, on penalty of perjury, that it's true. It's not impossible that the important parts of it are not true, but considering how much of is based on Dan and Jake's own conduct and statements, I'd say it's a fair bet that it's a fair characterization of what took place.
Which saddens me. I thought those two were among the brightest bulbs on The Ticket. What happened?
This was inevitable...D & J had to know that, right? You get a cease and desist...and joke about it for a week...this cannot be a shock at all.
ReplyDeleteI Just Dont Understand Why.
Take your 6 month sabbatical. Or is the desire to stay relevant w content the bigger play, knowing full well what entails.
This screams "Us v Big Corp" and gives them that out when they debut as a drivetime show on a competing radio channel.
If D&J have planned for the long game with this, kudos boys.
See this is what I don't get. They are smart. They know they are going up against Cumulus. I can't imagine they just started fucking around after they resigned w o talking to a lawyer at all?...Right guys?
ReplyDeletePlainsman, yest they're generally bright guys with the notable exception of anything involving business. Think back to any business adjacent conversation they've ever had...almost no grasp of how things work. Which of course does make the idea of "screw the man" quite seductive.
ReplyDeleteI got one am confused about Jake’s contract not being up until March of 2024
ReplyDeleteI’m not gonna cry over a corporation screwing their employees. As a great man once said, it’s called the way it is. I’m sure not going to aim my fire a The Ticket itself. I’m a P1 first and foremost. Couldn’t really care less about Cumulus. While on a much smaller scale this brings to mind the old billionaires arguing with millionaires thing. It does appear that D and J put the Dumb in Dumb Zone. They appear to be in deep doo-doo from my uneducated perspective. None of their actions from the jump have made any sense. Jake particularly acts like a kid who just does whatever he wants and thinks nobody can do anything about it. Kinda showing his privilege to use a term he might use. He may come out smelling like a rose, but it’s not looking good right now.
ReplyDeleteI *for* one
ReplyDelete^^^^^apply this, exactly, to EVERYTHING except (for the most part) sports and for being the "genius" sitting on the barstool next to you. Yes, Jake has an MA in one of the so called soft sciences. It in no way equates either wisdom or creativity or even denotes far above average intelligence. Not saying this to razz on Jake. It's aimed at the cognitive disconnect, blindspot so many have with respect to the parties involved and who and what they actually are. It explains everything. I know, it's too simplistic. Please abide, the Law of Parsimony is most always your sure guide. Once this all shakes out, what was obvious from years, decades ago, will in fact be shown as the case. That will be a bitter pill to swallow for some of you--I won't nane names.
ReplyDeleteJake is the Norma Rae of guys that get paid six figures with PTO/health/vacation to Oxnard/Super Bowl. Courage.
ReplyDeleteDan got his nut already, whatever.
Seems these boys believed the headlines from the loud minority over at Reddit enough to think they had something really unique. Or maybe it was Akash, of course him and Schulz have done Rogam. Just a tad bit of exposure.
The Dumb Zone are press box smart.
ReplyDeleteIf the lawsuit extends their non-compete, then they wouldn't be on the Freak until spring/summer 24 or even longer. That is, if the Freak is around.
The only host with a real world perspective and experience is Davey. Everyone else lives in radio fantasy land and have been in that bubble for a long time.
I have to agree with Willie. They are great background radio and have given me many laughs and hours of enjoyment. But, if you actually listen closely the show isn't that good outside the context of the ticket. The cult following got a little out of hand and they bought into it.
ReplyDeleteI know there’s people that will go to bat for Dan and Jake basically regardless of what they do, but soo many people think he never got a raise. I never got that. It was pretty open that he got the number he asked for last summer with his hold out. I’ll crap on cumulus like the next guy but come on
ReplyDeleteHe better have gotten that raise and saved it. I present to you (waves hand) paragraph 76.
ReplyDelete"Defendant Kemp agreed ' to pay all costs, expenses and/or charges, including reasonable attorneys fees, incurred by the company in enforcing any of the provisions hereof'.
Or to put it another way, if this goes to trial, and TDZ loses, they're liable for Cumulus' attorney's fees. Dan's contract isn't as specific. Both have standard indemnification clauses. But paragraph 76? That puts Jake personally on the hook for not only his attorneys fees, but Cumulus's as well.
Not to play Monday morning QB, but they should have spent the next 6 months recording the podcast and banking them and then when the non-compete was expired offer them up as bonuses on patreon.
ReplyDeleteStart doing public podcast and create a name that has no connection to the little ticket and their previous shows.
Woof.
ReplyDeleteAs others have said, they might be able to win...but at what cost? That "they only have to get to x number of subscribers to break even with their Ticket salary" just went up exponentially. And if they have to go off the air for months/a year...good luck with all that.
They got some terrible advice from a stand-up comic.
I got something to day. It's better to burn out, than fade away. And this is where the peurile Jake/TC mindset that a perpetually immature Dan bought into gets you. Welcome to the Boom Town. Welcome to the jungle, baby, you're gonna die. Dumb Zone. All the way.
ReplyDeleteThis comment has been removed by a blog administrator.
DeleteMy bad. This time with a username. Puerile: one seed out of the Midwes
DeleteThis comment has been removed by a blog administrator.
ReplyDeleteAnd here's one thing that I've noticed in the reaction to this.
ReplyDeleteThere's a lot of Eff Cumulus on reddit.
There's a lot of "I'm done listening to the ticket"
There's a lot of "I'll subscribe to support my boys even if they can't do podcasts'.
But there's not a lot of actual, factual rebuttal of the Cumulus/Susquehanna lawsuit. I'm sure we'll see it in TDZ's response, and Dan's contract has more wiggle room than Jake's.
But can anyone look at this and see them succeeding on the lanham act (Trademark) stuff? If it was created for Cumulus, Cumulus owns it. So the youtube channel they changed from THZ to TDZ, Cumulus's. The Twitter account they changed to TDZ69, Cumulus's. The logo? Created for use by Cumulus, guess what? It's Cumulus's IP.
Then as I said above, Jake is hosed. Jake's contract specifies podcasting and internet streaming as competitive businesses.
(waves Hand) I present paragraph 1.3 (highlights of):
Competing business means any person (including employee) carrying on a business that is the same or essentially the same as company business (skip to) including... podcasters, internet/streamed radio and internet/streamed programs/programming.
I'm not sure how Jake's lawyer looks at that and says 'yeah, sure, you're good to do a podcast, go ahead'. Dan maybe, his contract doesn't specify podcasts as competing. But Jake? Jake is hosed.
C
Looks like he is. Very sad for what he’s about to go through but sometimes arrogance begs these kinds of lessons. I’ve certainly been through my own.
DeleteAnd lawyers aside, why the hell did Dan let him do this? So disappointed in him.
DeleteAs several have been saying for a while, there is a wide berth between “having lawyers and receiving advice from them” and “actually following legal advice.”
ReplyDeleteI’m going to miss not having TDZ pods anytime soon. I still miss my regular 12-3 THZ. I am a bit surprised at the negative reaction from some parts of KTCK adjacent social media. What other radio station goes out of its way to tell the listeners they’re on the inside. P1 family and whatnot. A part of that family leaves and gets sued, revealing the obvious, that there is no family, only business. Yeah, some fans are going to be pissed. We can all say how naive do you have to be to think otherwise, because Cumulus exists for the benefit of its shareholders. But I’m still bummed out by it all and I’ve worked in F500 all my corporate drone life. Bummed that D&J and cumulus couldn’t get to an agreement. Bummed at the choices cumulus made for 10-3. Bummed at the hubris of D&J the last month. I’m not done listening to anyone or any show or any whatever. I’m just bummed with all of it.
ReplyDeleteI have no idea if this is correct, but I'm wondering if Dan and Jake are being advised by lawyer Philip Kingston. He lists "employment law" as a specialty, but it's not among the things he's known for. I know almost nothing about him reputationally, only what I find online.
ReplyDeletehttps://www.sheilswinnubst.com/philip-t-kingston/
I believe he and TC Fleming used to have a podcast called "Welcome to Loserville."
I believe Kingston ran for Dallas City Counsel. He got 17.9 percent in the Democratic primary last year.
Again, I don't know if Mr. Kingston has been advising our lads, just noting a potential connection.
Speaking of lawyers, several of our sharp-eyed confessors have observed that Jake's and Dan's situations are not entirely congruent, owing to (1) different contract terms (but not that different) and (2) Jake's inability to keep his mouth shut. Which suggests the possibility of a conflict of interest between them and the need for them to have separate counsel.
You are correct.
DeleteIt was always surprising to me when I was practicing in this area the number of non-lawyers who believe that noncompetes are not enforceable as a matter of law. In fact, as noted above, Texas law specifically approves noncompetes if they meet certain (pretty minimal) requirements.
ReplyDeleteI'm wondering if Jake and Dan were listening to this myth when they conducted themselves the way they did.
Obviously we’re speculating wildly, but is he is in fact their legal council, I have grave concern. He was on IJB not too long ago and basically said people who vote for more mainstream candidates (the people who didn’t vote for him) are idiots. I know IJB is a podcast and all l, but flippant remarks like that paint the imagine of a petty, immature person, in my mind.
ReplyDeleteTDZ appears screwed on the IP stuff and I expect them to start new youtube/twitter platforms with a new name as a settlement offer.
ReplyDeleteAs to the noncompete, I would ask the crowd what line of work Jake is supposed to ply his trade in to feed his family during his noncompete. That's going to be an important consideration for the enforceability of the provision. I have a hard time seeing a judge preventing Jake from this type of podcasting, even with his noncompete provision.
He has a couple of options. He can go work for his brothers production company, or focus on running the bar he owns in deep Ellum.
DeleteWhat? Neither of those apply to him? Well, that’s an issue then, isn’t it?
The problem is (waves hand) the second paragraph of section 3 and paragraph 7. He agreed that 5% of his total compensation was consideration to get him to agree to paragraphs 3.1 thru 3.3 and 6-7-8. And for that 5%, Jake agreed to not compete for 6 months in a competing business. See earlier post, podcasting and internet streaming are both specifically spelled out as competition.
I invite you to read up on what constitutes a valid contract, basically offer/acceptance/consideration. Cumulus said “here’s 5% (consideration ) to not compete for 6 months after you quit or get fired (offer).
And someplace in the deposition where Jake will be paying his lawyer a few hundred an hour, and may end up paying Cumulus’s lawyers and assiciates(call it 1,000 an hour total for them) he’ll get asked if that’s his signature at the bottom of page 15 of his employment agreement. If he says yes that’s “acceptance” and that is a valid contract.
And I talked to a lawyer I know. Doesn’t do employment law do not his speciality. But his HSO is that the non compete is written that way because it doesn’t stop you from working, just from competing. “Earn a livelihood” and “do sports talk for money” aren’t necessarily the same thing. We’re back to work for his brother Cash, run his Deep Ellum bar, or maybe write full time for D Magazine or the Athletic. If none of those are viable options, maybe Jake shouldn’t have agreed to a non compete, or he could listen to fellow radio star Dave Ramsay and had 6 months living expenses saved up in cash.
C
@Andy
ReplyDeleteHe's publicly stated that his wife earns more than enough money to afford their current lifestyle, in addition to the fact that he comes from a rather high income bracket family that has also and will continue to supplement his and his family's lifestyle. A nice parachute to have for someone who goes out of their way to champion The Other. But then again, Jake's actual history and modus vivendi and his passionate professions of progressives talking points rarely if ever align vis-a-vis his actual personal histor and lifestyle. That's not singular. Rather, it's the norm for the publicly vocal types. Don't know about Dan, but I think he engages in a lot of wishful thinking. I'll give Dan this, and far and above over the country club progressive Jake, Dan genuinely is placing his balls on the chopping block. He in no wise nor ways has the golden parachute the "brave" Jake has. If all this is either a matter of misguided principle but a ride or die principle nonetheless foe Dan, Man, I think you're a moron dog, but I respedt the fuck out of you in a weird way. We'll find out if that is true, soon enough.
Plainsman- re your 1208 and 1210 comments. Jake has said in either one of their pods, or in the mom game pod, that this was about working with Dan. That he wouldn’t be doing this if it wasn’t for Dan, etc.
ReplyDeletenow the rubber meets the road. Dan has led you down the primrose path right into the middle of a minefield. Jake’s contract specifically bans him from competing via podcasting or internet streaming. And Jake’s contract specifically puts Jake on the hook for Cumulus’s reasonable attorneys fees. Dan’s contract interestingly enough omits the attorneys fee obligation. Yeah, they need seperate attorneys, their situations are not the same.
C
Wanna know how this most likely plays out?
ReplyDeleteJake is out of the game. He and TC and Kingston mildly monetize IJB, and live out a self created, Gnostic, echo chamber in perpetuity. All to the delight of the Surlys and OU812s of the world, who happily pay the yearly $69.13 (edgy!) sub fee. Everyone's the smartest person in the room, anyone not in the room is an idiot at best, evil at worst, but probably an admixture of both. And Vladdy will be happy with that.
Dour Dan (the smile having long since left his face) finally did get that drive time slot, in Youngstown, OH. And with a hero's welcome, at that. The prodigal son returns home.
It's called, The Way It Is.
But it didn't have to be. It should never have been. The Scylla of ideology. The Charybdis of hubris
It also occurred to me Dan will end up back in Youngstown or Cleveland or wherever, but he won’t be making $275k or even half that. Jake won’t be on the air anywhere again. It’s a wild story and a real shame.
DeleteIf the salaries of Jake and Dan that are being mentioned on Reddit are correct (I know, but 300k for Dan and around 100k for Jake..the terrible salaries Jake and Dan were being offered the surlys mentioned look quite wrong at this point
ReplyDeleteJust home from church. Talked to a lawyer acquaintance there who’s a casual listener (lots during cowboys season, not at all Jan thru sept)
ReplyDeleteHe says there’s almost no defense for the IP issues. Paraphrasing him” any competent lawyer would tell them to start new, that mistake will cost them”. Added that willful copyright infringement will taint the rest of the case. I.e., if they’re willing to infringe IP, it implies willful violations of the non compete aspects.
Also said leaving Jake’s name off the patreon tag (where it’s Dan Mcd and friends) also goes to show willful (something?-word I didn’t know and have now forgotten) shows mindset that they knew Dan and Jake’s contracts are different, and while Dans may allow podcasting, Jake’s clearly didn’t. Referenced Trumps case where statements made can be used to set state of mind. And leaving Jake’s name off shows they knew they were wrong and were in his words “trying to be too cute”.
I’ll wait to see TDZ response, but damn, the more I hear the worse it looks for Dan and Jake.
C
Don't want to beat a dead horse here or give this more attention than it deserves, but I'm wondering about the quality of Cumulus's representation, too.
ReplyDeleteA couple of the things I've already mentioned, which may seem, and are, small, but which would have gotten me severely reprimanded if I'd let them slip through when I was a young lawyer:
(1) Spelling the client's representative's name wrong twice in the verification.
(2) Failing to cite Section 15.50 of the Texas Business & Commerce Code that governs noncompetition provisions in contracts, and alleging that the noncompetes in this case comply with it.
(3) It does not contain a civil conspiracy count, which the alleged facts would support.
None of these is fatal to the complaint. If they happened because the complaint was drafted by the smallish Atlanta firm, then Baker & Hostetler should have caught them. (And if I were Dan Bennett, I've have made a pretty stern phone call to a senior attorney demanding a corrected verification.)
There's one more thing I've mentioned that comes to mind this morning as I'm thinking about next steps.
And that next step is, or should be, a hearing on an application for a temporary restraining order. That "application," which is like a motion, is a written document; these hearings don't happen automatically, you have to ask for that relief by motion and get a hearing scheduled with the court ASAP, since you're claiming it's such an emergency. In cases I'm familiar with, it is filed simultaneously with the complaint (because you are alleging you need this relief yesterday) or very shortly thereafter. I would have expected that hearing to happen tomorrow (Monday), but without a filed application, it won't.
There is no sign of it to date on any of the sites that keep track of filings other than the official PACER federal court filing database. Maybe this is because the complaint was filed on Friday, and they didn't want to give Jake and Dan's lawyer the weekend to deal with it. Or maybe it HAS been filed, and I just don't know about it because I can't get on PACER without registering, which I'm not going to do when we have actual practicing lawyers who check in here.
Or maybe it has been filed "under seal" -- kept confidential from the public -- because it contains affidavits or other information that is competitively sensitive to Cumulus or otherwise business confidential (or claimed to be).
Another thing: If you really, really need that relief -- as Cumulus is claiming -- the application for a TRO may be made "ex parte," i.e., without notice to the other party. Otherwise, notice must be given. So by its strategy here, filing a complaint without a simultaneous request for a TRO (if that is in fact what has happened), Cumulus seems to be saying that its need for a TRO really isn't that urgent.
So -- not sure whether the application was filed. I note, however, that the complaint filed Friday requests "that Susquehanna be granted the relief requested in its Application for Injunctive Relief," suggesting that such Application was in existence and before the court. If it wasn't, then:
(3) Another instance of sloppiness in preparation of the complaint.
The foregoing analysis was pulled directly from my alimentary system. But I must say that this complaint -- which has to have been in the works since the cease-and-desist was served ten days earlier -- is not the most professional I've ever seen.
May I ask a said Actual Practicing Lawyer to check PACER to see if an application has been filed?
I don't know if Philip Kingston is representing Smilin' Dan + Jake either in their departure from Cumulus or in the lawsuit. I guess he had been on the City Council before he lost, but I never heard of him and don't know anything about his lawyering. He may be the next Johnnie Cochran. However, I did see the following in a Dallas Morning News article from 2019:
ReplyDelete"In his final run for the Dallas City Council District 14 seat before hitting consecutive-term limits, Philip Kingston once again is facing an election that is — in essence — a referendum on his demeanor.
"Critics say three-term council member abrasive and domineering, using his position on the Dallas City Council to bully and berate opponents, and blithely step over rules when he sees fit.
"But voters have routinely backed Kingston, whose supporters see him as a skilled and effective bulldog who fights for worthwhile causes and doesn't back down against Dallas' so-called old political establishment.
"In three of his past four campaigns — he ran unopposed in 2015 — Kingston has faced challengers who have questioned whether his temperament was right for City Hall.
"This time, David Blewett — a former Southern Methodist Universty football player and real estate financier — and Warren Johnson — who served in the U.S. Marines and owns a real estate brokerage company — have again targeted Kingston's personality.
"In a March introductory email to supporters, Blewett, 53, wrote that he had become 'increasingly bothered' to have friends and neighbors insulted by Kingston, 'called liars or stupid or even racists when holding different opinions of him.'
"'This is unacceptable behavior from any elected representative,' he wrote."
Patreon subscriptions have slowed over the weekend, and may even have stalled a bit at something a little shy of 3900.
ReplyDeleteThat line about Kingston reminds me of a certain ex-Ticket host who likes to imply in sotto voce snark that everyone older than him is racist. Peas in a pod.
ReplyDeleteAnyone think it odd that this lawsuit has gotten no media coverage? Maybe that late Friday filing worked (although what litigation advantage lack of publicity would accrue to Cumulus, I don't know). DFW media is full of media-news and sports gadflies, Ticket lovers, and Freak partisans.
ReplyDeleteBut other than MTC (H/T to me, who, I believe, was the first with this story and complaint other than the lawsuit reporting services), I don't see any news items or commentary on it.
When the lads left The Ticket, the event received extensive coverage.
Maybe need to sharpen my Google skills.
The dumb zone
ReplyDeletehttps://twitter.com/notjackkemp/status/1688045359426064384?s=46&t=LP_n1bznyAkLU_0ArtRigQ
Permit me to post-apologize for a lot of the technical mumbo-jumbo in the foregoing reporting. But this controversy has entered a stage where technical niceties not only matter, but can be determinative.
ReplyDeleteAlso: I actually know something about this subject, a rarity at MTC.
Plainsman - Actual Practicing Attorney here. Just confirmed on Pacer, no publicly available injunction app available. If it were filed under seal, there would be a notation of that fact.
ReplyDeleteI believe you are correct that the Atlanta firm did the drafting for the reasons you've identified. To clarify a point C- made earlier re: attorney's fees: under Texas law Dan can be liable for them if Susquehanna prevails, even though not called out specifically by his contract. See Civil Practice and Remedies Code 38.001.
@APA: Thanks for confirmation. Again, I have to wonder why Cumulus isn't roaring into court.
ReplyDeleteI'll guess: It wanted the complaint on file to get a head start on telling its story (again, Friday late PM not the best time to do that). It will file an ex parte application tomorrow morning. Further guess: The judge will say -- get the other side's lawyer in here, I won't hear this ex parte, you haven't acted like you can't wait for this relief. Final guess: she'll grant the 14-day TRO with respect to both the podcast and the trademarks, set it for a preliminary injunction hearing, and tell the parties to settle this whole megillah.
If you see an application filed tomorrow, will you let MTC know? (If possible, email to me at ThePlainsman1310@gmail.com.)
Ah, you're taking me back to those heady days before I left law practice. I used Section 38.001(b)(8) (fees for breach of an oral or written contract) many a time in contract cases.
Phillip Kingston, huh. The immature, cavalier, even arrogant behavior that's been thus far displayed now begins to make sense. So, I've been dealing with Mr. Kingston's antics for many years now. We live in the same neighborhood, and he is quite the presence in any and all neighborhood related issues. He has caused and continues to cause all sorts of headaches, and very much enjoys being a divisive figure in the community. In short, the man craves, demands, attention.
ReplyDeleteGood luck to Jake and Dan. If Phillip is heading up/is their representation, they are going to need it.
Dan's turn to go on a pod and talk about things he probably shouldn't be and in a manner that might only cause him more issues. I'm really beginning to wonder about DnJ's emotional intelligence.
ReplyDeletehttps://podcasts.apple.com/us/podcast/human-dads/id1482227340?i=1000623539731
for Christ's sake: Yet another "three millennials on a zoom call from their extra bedrooms, who think they're funny" podcast. Good choices, Dan. Good. Choices..
DeletePlainsman: I guess this just isn't newsworthy in Dallas with training camp starting up and the Rangers being hot at this time. It may get a little more attention now the C&D is out there and possible legal action. we may see something in the business section. Why no mention in the entertainment section. The Dallas Observer should be all over it before long.
ReplyDeleteWhat is odd is there is very little chatter on the local radio boards about this. On on of the bigger boards talk radio of any type doesn't get much attention from them, they are more worried about the music stations.
Dallas Observer knows where D&J stand politically. They take care of their own. If they report on it, it will adhere to The Narrative.
ReplyDeleteIS IT POSSIBLE THAT LOCAL MEDIA WRITERS ARE NOT SHOPPING AT MY TICKET CONFESSION?
ReplyDeleteI listened to Dan on the Human Dads podcast. Mostly everything Dan said was already stated on the Mom Game podcast or their own YouTube shows. But there were a few nugs:
ReplyDelete- Back in 2013, when the Fan was trying to poach Bob and Dan, the Fan offered approximately 100K more than what Cumulus was offering. Some of this compensation was based on spots, ads and similar incentives. The Fan was offering a 10 year contract and The Ticket was offering 5 years. They chose to stay for a lower salary with The Ticket because they were not sure if The Fan would even be around in 10 years - at least The Ticket would still be around and viable when their 5 year contract was up.
- They also felt that they owed it to The Ticket hosts. The love they felt from them in convincing them to stay back in 2013 meant a lot as that was the first time anyone from the station had shown them any kind of real appreciation for what they meant to them.
- As has been said ad nauseum, Dan and Jake wanted to own and monetize their own digital content. However, when negotiating this point with Cumulus, Dan and Jake were speaking to them in hypotheticals and had no concrete plan. They were speaking in terms of, "what if we did this, what if we did that". So basically they were flying by the seat of their pants a bit.
I think what they were doing was playing coy and playing at negotiating. Meaning, they never had any intention of signing new contracts and were attempting to shape a narrative and-or perception in order to justify-rationalize their true aim -- to both themselves and public perception. Unfortunately for them, they are keenly aware of, and highly influenced by, the louder voices on social media. Their goal being to win "the hearts and minds" of that crowd in hopes to turn them into subscribers, advocates, and a "street team" or "brand ambassadors" of sorts. To some extent it has worked. But with each passing day, the question must be asked: at what price? We shall see.
ReplyDeleteThere are a number of clues to support the notion that the negotiations were never held in good faith.
ReplyDeleteWell, well, well, Johnny Pants said it first and best: "Getting spicy now." Indeed it is. From the way it appears they conducted themselves at the bargaining table to the name, The Dumb Zone, to Jake's appearance on, of all places, The Mom Game pod, to Dan's guest spot on another pod to everything in between and now this news, either this was intentional or they actually are dumb, and I mean d.u.m.b dumb. For charity's sake I'll go with the former. Their behavior has been an absolute master class on trolling. It's as if it was designed for this specific outcome. Why would they do that you might ask? As someone else wrote in the previous thread, when you go down this particular legal route, the locale of every grave is not only revealed, but the bodies are exhumed and are gone over with a fine tuned forensics comb for all to see. I contend that's exactly what DnJ and their lawyers want. They've basically been goading Cumulus into filing suit. Why would they want to do that? They're hoping Cumulus will not want to air their dirty laundry for public consumption and as a result will strike a deal allowing DnJ to do what they want with a few concessions (including voiding the NC).
ReplyDeleteWhile I do believe DnJ are being poorly advised*** and are behaving in a manner that might very well bite them in the ass, and bite hard, I also contend that this has become for them a mission. That they see it as a calling. I think they absolutely believe they are taking a principled stand and will die on this hill. They've come to hold/have come around to convince themselves that this is their cause, and in essence, their life's work. Whether it's fool's errand or not, we'll see. They might end up as holy fools (read your Dostoevsky), they might end up as martyrs, and yes, there's the very real possibility that they come out of this the "winner" (per above and see *** below).
@Poor the Legend
That was a bullseye analysis and a dead on spelling out of the actual Freak narrative. PtL, either you're one helluva analyst, a psychologist, or close to someone(s) involved (you could be all three). Whatever the case, what you offered up was far too inside baseball to be merely one dude throwing hot pasta against the wall to see if it sticks. As one who's known much of what you said for a long while now, it has to at the very least be door #3. I myself run in a circle that includes a few individuals with intimate ties to both Ticket and Freak personnel. Your understanding closely parallels what I've been led to believe.
***Even if they "win" they will most likely lose in the long run, as no major media entity will touch them with a gagillian foot pole, and the odds of building a pod/media empire--one that will pay consistently and commensurately to their previous salaries/benefits--are very small, even microscopic.
I'm not sure I get the flying by the seat of their pants thing. If they knew what they wanted, could a deal have been made?
ReplyDeleteBut now i've got to wonder about end-game. How many scenarios are there?
Cumulus asks for and gets a TRO, TDZ can't record, this goes to trial in a year or so, and TDZ is enjoined from recording AND the non compete is tolled until it's settled.
Cumulus doesn't ask for a TRO, TDZ continues to record until this goes to trial in a year or so. Problems I see there- Cumulus has asked for all proceeds from the TDZ patereon. If it goes to trial and TDZ loses (and as I said before Jake is hosed IMO) they're out a years worth of legal fees, all of their patreon proceeds, AND are responsible for Cumulus's legal fees.
3rd scenario- The TDZ continues to record and release shows, and somehow wins. They're out their legal fees, but now own their show. For me, this is the least likely scenario. Jake's contract clearly stops him from podcasting to internet streaming for 6 months after he quits.
Is there a middle ground? Could they both settle? The only problem I see there is that Cumulus has Jake pretty dead to rights IMO. There seems little incentive for them to settle when they probably think they can win.
C
Kendall Viator, the associate assigned to the case at B&H interned for Judge Karen Gren Scholer during the summer of 2020 before she was hired by B&H the following summer. Judge Karen Gren Scholer is the District Judge assigned to this case.
ReplyDeleteSome great comments here. Thanks. (Cunning, respectfully request you audition a different name. Not deleting you for the time being.)
ReplyDeleteMy only demurral is that I don't think they had a grand strategy wanting to get sued so that Cumulus would have to air dirty laundry. No one thinks that Cumulus operates in any mode other than profit maximization. What scandal do they think would be revealed? That Sirois/Dobbs/etc. didn't get promoted? That Cumulus pays less than iHeart/CBS?
Nope, this whole thing smells like ad hoc strategizing by our lads with a healthy dose of inadvertence. I don't think they knew quite what they were doing, they were just having fun goofing around with those Cumulus suits, without quite understanding why those suits were wearing those suits.
Anyone know if Mr. Kingston is guiding their legal strategy? He and TC and Jake and Dan seem to be cut from the same cloth, resentful of authority, cosplaying as rebels, and the like. The world needs rebels, but rebels who haven't gotten ahead of what they're rebelling against are going to inherit the wind.
Have you noticed? Not so much talk of ending up at iHeart at the end of the noncompete.
Whoa, @ghostie -- that is a damned interesting observation.
ReplyDeleteI wonder whether that kind of relationship needs to be disclosed at the outset of the case to permit the judge to determine whether she should recuse herself. Actually . . . the judge will see the name on the pleadings and know the relationship, but defense counsel may not. Although it's on her page on the Baker & Hostetler website:
https://www.bakerlaw.com/professionals/kendall-m-viator/
She's only 3 years from her clerkship, and only been practicing at a firm for a couple of years. In the grand scheme of things at a big firm, that makes her fairly inexperienced. As noted, Baker & Hostetler needs to be riding much rougher herd on the work product coming out of Atlanta, if that's where this complaint was drafted. If B&H drafted it -- whoo, hope not. If it was her job to check the pleadings (hint: it was), then . . . L. David Anderson, B&H partner on the pleadings, may wish to have a come-to-L.-David meeting with her.
Mr. Anderson seems to be extremely experienced:
https://www.bakerlaw.com/professionals/l-david-anderson/
In general, appearance of a former law clerk before a judge has not been held to require disqualification. From a 2014 statement by the advisory committee on Judicial Conduct of the District Columbia Courts:
"Judges are not automatically required to disqualify themselves whenever a
former law clerk appears before them. However, an appearance within a short period of time
after the end of the clerkship could, in some circumstances, cause a reasonable person to
question a judge’s impartiality, and a waiting period may alleviate this concern. How long that
period of repose should be is a matter of judgment. The Advisory Committee on Judicial
Conduct advises as a general rule of thumb that law clerks should not appear before the judges
for whom they clerked within a year after the end of the clerkship."
In this case, Ms. Kendall clerked for the judge in 2020, so neither disclosure nor disqualification would seem to be required.
You gotta come to MTC to get all the angles.
You kinda made my case, Plainsman. Go back and read what I wrote and your response. Especially the cosplay rebel stuff and how the lot of them are cut from the same cloth. They've convinced themselves of flyng the flag for a righteous cause (how many times us the we were trying to get everyone on the show taises/little guy vs. evil company?), of being a part of the vanguard, a new, better, more egalitarian employer/employee dichotomy. They are econo-warriors. This is what I contend they've convinced themselves of/ perceive themselves as.
ReplyDeleteThis is the way in which they are attempting to square the circle they've created in their heads and for the public eye and their loved ones.
ReplyDeleteYes, our conclusions are similar. I think it's less a conscious crusade and more kinda having their bluff called and stumbling forward without thinking matters through as a committed revolutionary might.
ReplyDeleteWhy am I beginning to think that TC is to this fiasco as Sirois is to TF founding?
ReplyDeleteClerking for the Judge is not disqualifying and BakerHostetler will at worst have knowledge of the Judges feeling toward IP/trade secrets litigation at each step and at best will receive a quick slam dunk ruling to help the career of a bright young female graduate.
ReplyDeleteYou would think that the weed paranoia would have led them to tread more carefully
I agree that a recent clerkship by a baby associate is hardly cause for recusal. It would take a lot more than that, I think. And while this is far from my area of law, I still feel qualified to say that D&J have not behaved intelligently. Not in the slightest.
ReplyDeleteBut unlike others have opined, I'm not surprised. Neither have ever struck me as intelligent. Entertaining? Sure. Smart? Goodness no.
Man alive. Lawyers crawling out of the woodwork now.
ReplyDeleteI'm going to have to agree with the assessment it might not have been as well thought out as it could have been on the part of D&J.
Yeah, Jake this stuff is available for public consumption just like a Jones family divorce
I guess nobody listened to their new episode, posted last bight
ReplyDeletebight, night… whatever it takes
ReplyDeleteAs the name says... Although not a federal one. Random thoughts:
ReplyDeleteSure hope D&Js lawyers, whether Mr. Kingston and Co. or A.N. Other and Associates, are not rebel cosplayers - federal judges aren't really known for their patience with that. And if we assume that the Big Cloud is repped in part by the Judge's former clerk, who will know the dos and don'ts of practice before the Court... Well... It's one thing to be behind the legal 8-ball (I will defer to those who know about trademark law and contracts and assume it's not looking great for our heroes), but to stroll into federal court with a devil may care attitude while being represented by someone who radiates, shall we say, contempt for authority... Meanwhile, Cumulus will know how the Judge is likely to receive certain arguments, and will be on its best behavior...
Think of how the first hearing starts. The party filing the motion goes first, so here comes Cumulus:
"Your honor, my client owns a radio station, and its business is multi-platform media - radio, streaming, etc. My client and D&J had a contract in which there was a six month non-compete clause that covered all competition, both live radio and podcasting. The contract also prohibited unauthorized use of trademarks, the use of corporate secrets, and surreptitious recordings of corporate personnel. During the first half of 2023, my client and D&J were in negotiations to extend the contract, which would have given them a substantial raise in pay. Those negotiations were unsuccessful, in part, because my client did not agree to D&J's desire to engage in the sort of competition that the original contract, which D&J agreed to for additional consideration, did not allow. Now, D&J are engaging in the very competition they agreed not to pursue; furthermore, they have disparaged my client, threatened to release recordings of the negotiations, recordings made in violation of yet another provision of the contract, and they are unlawfully using my client's trademarks... Therefore, we are asking for a TRO, and other relief while we wait for final disposition of this case"
D&J's lawyer: "Uh... Hot dog... Seriously, Judge... These guys are just wacky radio guys... Non-competes aren't fair... We're not competing, but pay no attention to the fact that we were trying to convince Cumulus to allow us to do something in the new contract that the old contract didn't really allow... Sorry about the recordings and disparagement..."
Oof... This, on the outside, seems very poorly thought out. To quote Col. Jessup, "please tell me you have more... Lives are at stake..." The idea that radio is a failing business, and Cumulus is a failing company, in my mind, makes it less likely they'll settle for favorable terms... Why should they if they have nothing to lose anyway, and especially are pivoting to some sort of world where there are no boundaries between live radio, streaming, and podcasting...? Struggling to think what D&J's endgame is beyond "Let's do it and be legends...and we'll somehow make enough money down the road to pay off the Cumulus judgement..."
Surly, I just did. Of note to me, Dan said "we didn't file the lawsuit" and Jake immediately responded "well, we have our own separate deal" and moved on to talking about how he didn't realize the lawsuit would be publicly accessible. Sounded to me like "our own separate deal" means a counterclaim might be in the works.
ReplyDeleteFill us in surly
ReplyDeleteGo listen
ReplyDeleteNot showing me that they have a new show up. Last one is 8-4.
DeleteP1 Judge, I'm sure you've seen it so many times you don't need any reminding, but I made the mistake very early in my career of underestimating opposing counsel based on "off the field" issues, and let's just say I don't ever do that anymore. Let's assume that whoever D&J hires will present cogent arguments.
ReplyDeleteThis is a good reminder. This is the rare situation where the client shaped the view of the lawyer... I hope whoever they have to represent them does a good job, because it appears they are a dome team, on the road, in the cold, and playing their backup QB... #bringingitbacktosports
DeleteDoes this guy know how to party or what! P1 Judge on fire.
DeleteOh gosh they zoomed it, I’m out
ReplyDeleteCJK5H, I found that very telling. If they upload a video conference to YT, it is arguably not a podcast. Of course, that only shines a bright contrasting light on what they did in the past.
ReplyDeletemy faith in them is falling by the second.
ReplyDelete...they did a zoom call? skype call? posted it to Youtube, but didn't use YT streaming?
and it still hasn't been posted to their RSS ~12 hours later? come on guys.
Am I just not savvy enough with all this legal stuff, but shouldn’t they just pump the brakes on all of this?
ReplyDelete@c minus
ReplyDeletehere is the video on youtube: https://www.youtube.com/watch?v=ghxREFv5RDg
they didn't post to patreon yet.
Wait, Jake didn’t know this would be publicly accessible?
ReplyDeleteOne outlet is now reporting on the lawsuit.
ReplyDeletehttps://barrettsportsmedia.com/2023/08/07/cumulus-files-lawsuit-against-former-ticket-hosts-dan-mcdowell-jake-kemp/
Does barrett sports media report on anything other than Ticket-related stories?
ReplyDelete@Johnny Pants - think this is more evidence that they are much closer to "flying by the seat of their pants" than they are to "well thought out strategy."
ReplyDeleteThe top comment showing on that YouTube video is someone basically confirming the the Dumb Zone is competitively drawing listeners from KTCK. I’m no lawyer but could things like that be used in court by Cumulus? The D + J fan club might be inadvertently hurting the boys’ defense here.
ReplyDelete@Hot Rod Dunham:
ReplyDeleteYes, even though it's not sworn testimony, if it has indicia of reliability things like that can be used to show competitive damage or consumer confusion. I had a trademark case where I represented Pac Sun against a clothing manufacturer using a name similar to one of its product lines, and I used online comments demonstrating that some consumers were, in fact, confused about the source of the competing product.
The BSM article says The company has asked for a temporary injunction against the pair and The Dumb Zone. It believes that “without a temporary restraining order and a preliminary injunction, we will continue to suffer substantial irreparable harm to its business as a result of (McDowell and Kemp’s) actions”.
ReplyDeleteI assume this means they filed it this morning since no one found it over the weekend?
Any of our attorney Confessors check PACER this morning to see if an application has been filed? (The "Application" that the complaint appeared to claim was already before the court, but apparently was not.)
ReplyDelete@It's Just Me: No. That language was already in the complaint, the last sentence of its first section. Cum/Susq needs to file an application (motion) in addition to get a hearing.
ReplyDeleteThe beginning of that "Dads" podcast Dan was on yesterday was weird -- shots at Jake by the hosts with which Dan appeared to be in agreement.
ReplyDeleteI didn't hear anything that was going to have much impact on their defense, except that Dan came very close to saying that Cum/Susq might have a case. But it was pretty wishy-washy.
I agree with whoever above said that the podcasters themselves were pretty unentertaining.
I've checked twice this morning and nothing new is showing on the docket.
ReplyDeletethey just pushed the video call to the Patreon RSS
ReplyDeleteIf they think that going video is going to help them -- they're just not thinking straight. Even Dan, yesterday, said that it was "audio" that was the hangup. Um . . . video presentations have an audio aspect. If I were the court and inclined to grant a TRO -- not saying that's a certainty -- and they made that argument, I would say to them: Fine, post your video, but eliminate all the audio.
ReplyDeleteSomeone above used the word "cute" to describe their moves in this. That's a good word for what we're seeing.
I hope Dan and especially Jake come out of this at the end without career ruination, I really do. I like Jake as a broadcaster a lot. I don't require my entertainment to be provided by nice/smart/perspicacious broadcasters with excellent judgment. I can look at their strategies here and say -- whoo, some highly questionable moves there. And still hope to hear him on the air again before too much time passes.
This comment has been removed by a blog administrator.
ReplyDeleteI don’t feel this is untoward as it is 100% public on a social media platform:
ReplyDeleteThe wife of a Tier One wife said that the Tier One and all other talent were told by Dan and Jake that the negotiation breakdown wasn’t over money—the two were offered very fine contracts. It was solely the podcasting rights.
(Same thread: as for those who hopped ship: one retired, so fair game. Two others are dead to her [and presumably to the Tier One host {it isn’t Julie}].)
It doesn’t seem logical to ditch your dream station and a pay raise over podcasting rights.
Unless, of course, you wanted to sabotage the negotiation.
Wife of a Tier One broadcaster. Not wife of a wife.
ReplyDeleteI will defer to attorneys currently practicing in Texas, but: It is not entirely correct, as has been suggested, that nothing can happen until the summonses that were issued when the complaint was filed are served on the defendants.
ReplyDeleteDepending on the circumstances, a temporary restraining order may be granted without any notice at all. And even if notice is required under the circumstances, "notice" is not the same thing as "service of summons." Cum/Susq lawyers could call up SD+J's lawyers, whose identities they already know, and say "we've got a hearing scheduled at 2 PM -- be there," and that would be sufficient notice even without formal service of summons by a marshal or process server.
So far, I've heard nothing about C/S filing an application/motion that would result in a hearing on their request for emergency injunctive relief. Really strange -- I'm sure someone is paying attention at one of the two law firms, but the lack of action is puzzling, if they're serious about hammering the lads.
I haven't gotten the sense from any of the interim statements by SD+J that there are any settlement discussions ongoing, which would be one reason Cum/Susq hasn't filed.
@Poor the Legend: Sorry, your comment confused me. Tier 1 on the Ticket? Or The Freak?
ReplyDelete"Two others are dead to her [and presumably to the Tier One host [it isn't Julie]."
Julie is a Freak host, not a Ticket Tier 1. So:
(1) Two WHAT others?
(2) Dead to whom? The wife?
Thanks.
Poetic that D&J will be facing smart, powerful women who will look at their program in a certain misogynistic light, whether fair or unfair. I have found modern women to be incredibly sensitive and resistant to the Tate's of the world influencing the modern generation of young boys. The cultural milieu surrounding "guy talk" radio, the fact the Judge will have a personal relationship with the prosecution, and the air of "we are just winging it" that D&J keep pushing out all mean certain doom.
ReplyDeletePlainsman, I presume that the Julie referenced by PTL is Julie Davidson rather than Dobbs. He is saying that Sirois and Danny are dead to a Ticket host's (not Corby's) wife. If it's being aired in public, though, I'm not sure I understand the reluctance to name names. My first guess would have been Corby's wife. My next would be George's.
ReplyDeleteMy apologies. A lot of pronoun confusion. Of the two who left who are dead to the wife, Julie Dobbs is not one. The wife is the spouse of a Tier One Ticket host.
ReplyDeleteOk here’s my hit sports opinion. The lawsuit says they were offered a podcast with revenue sharing thru cumulus. Either Jake w moms or Dan w dads saud the sticking point was they wanted to own it. But they also said they didn’t really know what they wanted to do. Somewhere either Patreon or one of the pods, they mentioned the company asking them what they wanted to do so they could put it in the contract, and then really not knowing the what, just that they wanted to be bourgeoise owners and not proletariat anymore.
ReplyDeleteFine. But here’s where I think the sticking point is: what if the Hang zone started a 3 hour live morning stream called “get gently amused with Dan and Jake mornings 7-10am. It “hard takes online with Dan and Jake from 4-6pm”.
Ridiculous? Maybe. But with a free hall pass from Cumulus there’s nothing to stop them from doing that. How insane/irresponsible would it be for Cumulus to allow their employees to directly compete with other employees doing the same style show?
And that’s where I think the arguments about Gordon’s or Sirois twitch fall flat. First off, both were done at night, where the competition is most likely TV, not radio. 2nd, neither of those 2 shows were sports talk based. Gordon’s not breaking down the strengths and weaknesses of the cowboys secondary. Although it would be pretty damn funny if he did.
If Dan and Jake said they wanted to do a podcast about cooking on weekends, Cumulus probably lets them own that. An unknown podcast of unknown subjects at unknown time, I can see where red flags would be raised.
C
I'm thinking it's Joons's wife and the two in question are Sirois and Julie Dobbs, who were both publicly vocal about the "Tier System" in the immediate days after their departures.Never forget Julie has a pod. She and Emily enjoy imbibing grape derived Bev and even s gummies every now and again whilst recording. Sometimes things are said.
ReplyDeleteThe Dumb Zone continues to add subscribers who apparently think the Cum/Susq lawsuit will fail. They're up to 3,948 at this writing.
ReplyDeleteSo almost 4,000 people are signing up to get audio from what we’ll call “not ticket” but the Hang Zone wants to claim they’re not competing with what we’ll call “ticket”. Cumulus lawyer:
ReplyDelete“Bailiff, we will mark this poster of the increased subscriber numbers as Exhibit #1 and introduce it into evidence. Now Mr kemp will you look at exhibit one and explain to us how having 4K people subscribed to your audio podcast was not competitive with the audio broadcast by my client, when the non compete agreement you signed prohibits you from podcasting or streaming internet audio for 6 months after your resignation”
C
Let me PRE say not a lawyer. Seems to be me that Cumulus can't just say look at these 4000 people that signed up for the Dumbzone without also saying they somehow lost those 4000 people. They didn't lose them as subscribers as obviously the ticket is free. Maybe the next rating book decreases and they have a point but I doubt it does and again obviously Cumulus is not going to wait till then. Just seems to me that the dumbzone getting subscribers is independent of having a good or ill affect on Cumulus.
ReplyDeleteIf p man is right about using online comments, there are endless Reddit comments if “I’m done with the ticket entirely” or “I’m done with the ticket after 10” or even comments of specifically “I’m done with ticket middays”
ReplyDeleteIt’s really weird how there weren’t a ton of those comments when Danny or Sirois left before showing up 6 months later at the Freak. Maybe because they actually honored their non-compete? It’s like TDZ is affecting the goodwill between the Ticket and its listeners by competing in violation of their contracts. Good thing “goodwill” isn’t an asset, sure would suck if you lost a lawsuit to be Responsible for economic damages to goodwill. Sure almost impossible to quantify with a dollar amount, but if Cumulus claims a million dollar loss in goodwill, who’s responsible for that if TDZ loses the lawsuit?
DeleteC
But those 4K subscribers show how TDZ is Now in competition with TT for listeners. In violation of their non-compete.
ReplyDeleteAgain good luck to Dan and Jake as they sit in a very expensive deposition and explain how listening to audio over the internet thru their patreon page is TOTALLY DIFFERENT than listening to audio over the internet thru the SportsDay app, etc.
It’s an argument you can make, but Jake better get ready to make it. His contract specifically forbids him from podcasting or streaming for 6 months. He’s going to be paying his lawyer, and potentially Cumulus’s lawyer as he is forced to explain why TDZ isn’t violating his non compete. Because of a paywall? “So Mr Kemp with your ‘one free then 3’ marketing slogan, are we to understand that you don’t consider it competitive if only 25% of your content is available freely? “
C
I listened to some of that Human Dads podcast...first off, completely agree, it would pain me to listen to them regularly. What I can't get past is similar to what @C minus says.
ReplyDeleteIt just doesn't add up to me that the money was good, but they left because they couldn't do "outside" media that they could own. What makes no sense is they have continued to say they had no plan on what they wanted to do. I can't imagine leaving a job where the money was good because you want to do something on the outside but you are not sure what. Why not instead negotiate a shorter term contract and during that time figure out what you want to do? Then come back to the negotiating table for the next contract with that. Something just doesn't add up. Again, this may all be part of a calculated ploy on their part.
@stapleman01 that makes a lot of sense. Most of those 4K are probably still listening to the Little Ticket, but I’m not sure the court will see it that way. Seems pretty open and shut to me. Time will tell. Were D&J just simply hypnotized by Akash and did not think about it one step past that? Sure seems that way.
ReplyDeleteMy only response to the competition of a patreon podcast is IJB. I am sure D/J will assert the affirmative defense that S/C waived their position that patreon podcasting is not competition, because they let Jake have one for over a decade now without enforcing the terms of the contract regarding the IJB patreon.
ReplyDeleteI've had clients prevail on waiver before, it's something they have to plead and prove that S/C committed an intentional relinquishment of a known right or intentional conduct inconsistent with claiming it. It's at least something to argue to Jake's portion of the Contract detailing podcasting. That is probably why IJB isn't mentioned in lawsuit as it directly relates more to a direct waiver to that patreon.
I swear, with every new action taken and word uttered, I'm becoming convinced that TC is running the show. It's as if the whole thing is one big semantics game, which is TC's m.o.
ReplyDeleteI also wonder if by releasing these videos during off hours helps them as they're not technically directly competing with their old timeslot. Kinda along the lines C mentions how Gordo's twitch is done at night.
ReplyDeleteCouple of major differences. TC and Dan are TOTALLY DIFFERENT people. Mostly because Dan has talent and is interesting. And look at some of IJBs recent shows- small children in summer, Jonathon Depp, Mormon momtok, options trading, Kendrick Lamar’s new album and so on. Now compare and contrast that to TDZ run sheets. Cowboys, luka, baker, Micah, etc. as I said upthread, they want to do a cooking channel, there’s probably a lot less heartburn. So to speak. Cumulus clearly thinks they’re competing because they’re doing the same show just in a slightly different way. And Jake needs to start spending time with his lawyers to figure out his answers as to why he’s competing w internet streaming when his contracts specifically forbids it. He’d better come up with a good answer, his contract is what will eff TDZ.
ReplyDeleteC
Cumulus - because they really have no other choice - is 100% playing into their hands and the long game plan.
ReplyDeleteThe question (and was always the risk for them here) remains: "What takes longer?" An injunction causing a pause of the clock ("tolling") on their 6 month NC for however long this legal battle takes place or iHeart's willingness to continue to support the exorbitant costs of TF.
Dan and Jake are personally responsible for the retroactive legal fees, and BakerHostetler and the Atlanta firm's rates are going to be astronomical. Can anyone speak to the figures involved? Opposing counsel is going to spend dozens of hours just listening to all the new content TDZ is putting out in real time...
ReplyDeleteKnob, what exactly is this long game that Cumulus is playing into, a game they have no choice but to play into? If you can discern and suss this game don't you think it's highly probable that so too has Cumulus?
ReplyDeleteWould you mind explaining why you think the lawsuit plays into TDZs plan? I’m not sure I get how.
ReplyDeleteThe dumb zone is Cumulus IP. Jake’s non compete clearly doesn’t allow him to podcast or stream during the 6 months. They’re now forced to spend money to defend those actions, and the revenue they’re making is subject to forfeiture to Cumulus if TDZ loses. And on those 2 counts above, Cumulus has them dead to rights. If this plays into their long term plan, I’d love to know what people think the long term plan is.
C
@ Radio Knob, I'm not sure you understand how slowly litigation moves. If it actually went to trial you'd measure how long the dispute lasts in years, not months. And it's very hard to imagine iHeart signing them up at the Freak while they are in an active dispute regarding their restrictive covenants.
ReplyDeleteSo in this scenario, The Freak is their life boat? Oh dear!
ReplyDeleteThe more any of this plays out, the more it makes it seem like Dan and Jake really had no idea what they are doing or what they really wanted to do. Almost seems like they just wanted to give cumulus a demand they knew they’d prob not accept just to try and push them to to own corporate and here we are.
ReplyDeleteOn a related note, anyone catch Monty's first day producing (basically playing 3rd host) Mino and Seanz? For Day One it was good. Damn good. Sean was much more laid back, letting others get in entire sentences in lieu of merely (usually but not always) waiting for them to stop speaking for a nanosecond in order to continue his thoughts. It was more like WiP with Sean as the 3rd. This thing has legs. This thing is also coming onboard at the perfect time. Rangers are actually very good and the Cowboys are just kicking things off. In short order the Mavs and Stars will also be starting up. All that coupled with the very real possibility that DnJ might be forced to go silent for an extended (maybe very extended) period of time, the fact that B&S and K&C/GBaG are what they are... well I think it all adds up to a golden opportunity for these boys. I have a hunch they are going to take it and run with it, making nice inroads and gaining a lot of listeners in the process.
ReplyDeleteDid anyone listen to Donnie and MM today? If so, was there obvious tension between Donnie and MM and/or Blake and MM and/or Donnie-Blake and MM? I'm not going to be surprised if Donnie has either a new partner (MM gone) or a 3rd is added. Something doesn't smell right here. But maybe it's just me. Probably is.
Finally, if you have the stomach, head over to the reddit page. There's beginning to be some questioning about DnJ's strategy, how they've gone about things, and even some wondering aloud, "OK, they've gotten nearlhy 4k subs in 2 weeks. But that's basically us. What's the incentive for anyone outside the market?" and other questions along those lines. Some have even admitted that TT inside stuff has already become a bit stale and that they hope discussions of more of substance (other than being able to curse, talk of flogging one's Molly, microdosing, etc.). Granted, it's not the majority of comments, not in the least, but the fact they've begun to pop up is perhaps telling. Perhaps.
Here's the deal (h/t Corbles). The deal is ya'll gonna find out the same thing about Dan and Jake as ya'll did with Sirois and Julie. It's all about that context. You take a line from many a great song away from the music more times than no it sounds like a moron dog wrote it. Put it with the music though and you got fire.
ReplyDeleteHonestly, @magilla might end up being more on point than off. Like many of you, Dan and Jake are behaving in a seemingly reckless manner, and to such a degree that, I'm starting to wonder about their competency on every level. I managed to listen to most of each of the free DZ episodes. Truth be told, it was rough going and I had to fast forward through the many boggy sections. These are the early days. We, including Dan and Jake and Cumulus, have no idea where things are ultimately headed. Matters could be settled out of court in a few weeks or months time. Whatever transpires, when and if Dan and Jake are able to put out consistent content, I hope for their sakes they get their act together. From what I heard, there's no "there" there. This is inexcusable for individuals with Dan's and Jake's experience in the industry and with each other.
ReplyDeleteI never said it was a good game plan - but I can completely see how, to justify and disguise their betrayal (and what would qualify as sabotage) them pushing this to the brink of a lawsuit and injunction - then throwing their hands in the air, canceling their Patreon - and quickly surrendering and settling for a 6 month out period only to eventually announce their addition at TF all based on the claim - "they had no other choice as Cumulus refused to allow them to do the thing they "really" wanted to do".
ReplyDelete@Radio Knob has nailed it.
ReplyDeleteIt's just 2 guys talking about, for lack of a better word, stuff. What's the hook?
ReplyDeleteI suspect they're near their subscriber ceiling from the 'f cumulus' crowd. How they keep them AND add from the rest of the hoi polloi is beyond me. Even if it were free. As others have rightfully stated, being part of a team with producers and boards ops and a history of Ticket lingo and backstories makes it all gel. And maybe most important, live reactions to breaking news. Are people really gonna continue paying $69(novel hilariousness) to hear about broadcaster mistakes from the Cowboys' game?
I too think Knob is 100% correct on this. They thought they were going to out clever both the Sirois/Julie/Danny/and in some ways Rhyner approach, out clever Cumulus into "forcing" their hand and eventually into the arms of TF, and all the while get P1s on their side and against Cumulus and the hosts they deem to be Company Men.
ReplyDeleteEncouraging all to read Poor the Legend's 3 part comment on the previous thread. It is how TF went down. The real story. There are some players involved that are nervously watching what is transpiring, wondering how deep and far back Cumulus might be digging and what if any retroactive reprecussions might ensue.
I've urged Poor to repost here.
DeleteSee below. Typos, grammatical mistakes, and all.
Delete@Dream Police
ReplyDeleteNever thought of that. The interviews in the DMN, Dallas Observer, D Magazine, and D Magazine pod alone paint a conflicting, incoherent narrative. Especially where Rhyner and Danny are concerned. Then there's Rhyner admitting Danny was in on it from the conception of TF. Then there's also the first few weeks of TF where the entire on air staff kept contradicting themselves and each other as regards the founding narrative.
My guess is Cumulus isn't thinking in those terms. But it sure is an interesting tack. Imagine if things took such a turn? Damn. You'd have Cumulus and iHeart either going at each other or working in tandem. Either way, crikey.
In early 2020, Rhyner retires. His retirement was legitimate. He busied himself with what he thought would be a year’s long victory lap. It was—and he occupied his time with the podcast appearances, the articles, the documentary. But by March, the pandemic had hit.
ReplyDeleteWhen that happened, Sirois, who believed the reshuffling from the OGW retirement would see his station advance, was furious. Cat had told him he marathon was almost over; at the same time, his hours and pay (and time on the air) were being negatively affected by the Pand. And Sirois, who is not patient—who believes that in America you are one good idea away for being set for life—started reaching out to others who left Cat’s office less than happy.
Julie was attentive. Jillian agreed with the sentiment , but weighed options and simply resigned.
Siriois concluded he had what he needed to make a name for himself: Rhyner 2.0. Sirois was amazed at the chemistry of KTCK and believed he could bottle it. The true secret was cutting out sports, opening the day to talent and improvise. He felt that was what was missing.
Rhyner, the spotlight gone, now bored, begins listening to Sirois — mostly as a mentor. Sirois, like most salesmen, could read his body language. Rhyner, borderline hooked, tells Sirois the one thing he (Rhyner) wished he (Rhyner) had when beginning the Ticket wasn’t a pro team or any of that. He only wished they had a better signal.
He thinks he knows of a very good signal.
He’s been corresponding with Ben and Skin. Later, he will use this pretense in interviews as a reason to leave Cumulus. The reality is, Rhyner likes underdogs. A failure is expected, but he’s Your Leader if you succeed, and a genius for seeing something in you nobody else has.
He tells Ben and Skin they’ve always reminded him of Dunham and Miller, but always under utilized—never understood. To hear The Guy say this of you, after decades of struggle, fights with suits, and failures you don’t understand along the way?
Given the pandemic, iHeart is open to format changes. A change to all talk is absurd at first , but Rhyner leverages everything he has in terms of Radio Equity to get things done.
The pitch is easy. Suits from elsewhere are given the documentaries and interviews, the podcast with Ben and Skin (they’re told B&S are already at the station to aid in transition ). They’re shown the numbers , the HOF, the Marconi.
This was all Siriois. He sold it to Rhyner, who made it happen. And by then, he’s looking at the Hardline with Danny and Grubes but no Corby, no Greggo. Instead, this is Sirois to drive.
And Sirois thinks he’s got to take to drive.
I’ll just add: nobody expected Dan and Jake to do anything but kill time and stay a bit relevant.
ReplyDeleteNobody predicted they’d infringe.
Or, to put another way: you can tell a dog not to eat chocolate, but once he’s on his own…
All: ignored my post at 6:13. Here’s the actual original post:
ReplyDeleteIn early 2020, Rhyner retires. His retirement is legitimate. He busies himself with the victory lap, sitting down, of course, for the big video; for the interviews, the podcast appearances (including with Ben and Skin), and the documentary. The documentary airs in October, but by then so much has changed. The OGW’s departure leads Sirois to believe the reshuffling at the mothership will benefit him; instead, due to the pandemic, he and others are furloughed. In emotional meetings, Cat reminds him that he’s running a marathon and that that marathon is nearly over. The story gets pretty confusing now - more twists in it than a watersnake. Grumblings begin. Julie is unhappy, as is Danny and Jillian. Dan and Jake aren’t impressed with how the company is treating others (compare this to Gordon’s policy of non-meddling). Sirois meddles. He doesn’t theorize. And Sirois, a romantic—a man who still believes that in America you are one good idea away for being set for life—is beginning to think of alternatives. Julie is attentive. Jillian agrees with the sentiment , but weighs options and simply resigns. Sirois doesn’t do anything by halves. He concludes he has finally found a way to easy street: Rhyner, 2.0. Sirois has been amazed with the chemistry of KTCK and believes he can bottle it. Rhyner, the spotlight gone, now bored, begins listening to Sirois — mostly to humor the young man, as a mentor. Sirois, like most salesmen, can read body language. Rhyner, borderline hooked, tells Sirois the one thing he (Rhyner) wished he (Rhyner) had when beginning the Ticket wasn’t a pro team or any of that. He only wished they had a better signal. Rhyner thinks he knows of a very good signal.
All: ignored my post at 6:13. Here’s the actual original post part two:
ReplyDeleteSo what really happened that day? Let's just for a moment speculate, shall we? Rhyner has been corresponding with Ben and Skin. Later, he will use this pretense in interviews as a reason to leave Cumulus. The reality is, Rhyner likes underdogs. A failure is expected, but he’s Your Leader if you succeed, and a genius for seeing something in you nobody else has. He tells Ben and Skin they’ve always reminded him of Dunham and Miller, but always under utilized—never understood. To hear The Guy say this of you, after decades of struggle, fights with suits, and failures you don’t understand along the way! Given the pandemic, iHeart is open to format changes. A change to all talk is absurd at first , but Rhyner leverages absolutely everything he has in terms of Radio Equity to get things done. And anyway, the pitch is easy: Suits from elsewhere are given the documentaries and interviews, the podcast interview with Ben and Skin (they’re told B&S are already at the station to aid in transition ). They’re shown the old KTCK numbers , the HOF, the Marconi. This was all Siriois. He sold it to Rhyner, who made it happen. And by then, Rhyner, set for life but bored, is looking squarely at the Hardline with Danny and Grubes. And instead of Corby or Greggo—an important note, later—he’s got young Mike Sirois.
https://twitter.com/skinwade/status/1682159981322182658?s=46&t=Y7AIxF4Rmv965paKJYCaRg
ReplyDeleteBen also RTed Julie with pics of THZ saying “the most thing change the more things stay the same.”
More recently, Ben has stated that throughout the YouTube videos, the most fascinating thing is how handsome Jake is.
TF folks give off a creep vibe. Nothing with them is every straightforward. Nothing. It's not necessarily telling, but in most cases such a modus operandi is telling.
ReplyDelete*ever straightforward*
ReplyDeleteIf they end up going to TF, are they going to be in drive time? Regardless of what most think of the current Hardline, Ticket P1s for the most part are loyal to the station. They can’t beat the Hardline IMHO, and they dang sure ain’t beating The Musers. That would be a suicide mission. With the good stuff I’m hearing from WIP I’m not sure they beat them either. While D&J have a lot of cheerleaders, I think they are turning a lot of people off as well. They may come out smelling like a rose but I just don’t see it.
ReplyDeleteThe other steel toed boot is about to drop on DnJ and perhaps others. Read into that what you may.
ReplyDeleteI must respectfully disagree with those who think this is all working out the way SD+J planned all along. Like the guy from Coke said when he was doing his mea culpa about the disaster that was "New Coke" and responding to theories that it was a publicity stunt: "We're not that dumb and we're not that smart."
ReplyDeleteTo risk tens of thousands of dollars in fees, a direct hit to their reputations for honesty, a threat to their ability to work in the industry, and just plain looking like a couple of guys who didn't have any sense, in return for an EXTREMELY attenuated ability to throw up their hands when they go to work for The Freak and whine about how Cumulus wouldn't let them do anything else, a satisfaction that would last about, oh, a day -- no.
I see no evidence that this is anything other than a couple of guys who didn't understand the seriousness of noncomps terms, what constitutes intellectual property, and federal laws governing infringement of the latter, just kinda rolling the dice and hoping everything "everybody" says about noncomps being unenforceable is true.
If any responsible radio person believes that these two guys WANTED to lose so they went out and infringed and competed so they could be smacked around by Cumulus, their radio careers have come to a close. Now, maybe that's what they wanted because of their faith in the monetization of a non-live podcast, but Cumulus having humiliated them (if that's what happens, and what the "Cumulus plays into their hands" theory requires) doesn't put one extra nickel in their pockets as they spool out podcasts.
The simplest solution is the best: (1) They thought they knew better than everyone else, and/or (2) for some reason they came to the specific conclusion that it was OK to compete, disparage, and infringe and not to worry about running their mouths -- and we're going to find out pretty soon if they were right or wrong on either of those things.
Agree. It’s all Hanlan’s Razor with D&J. Stupidity/naïvety all the way down
DeleteAside: Sports talkers are being flipped on a regular basis across all markets. I think this might be something to consider with a view to the macro.
ReplyDeleteStrategically, is it to Cumulus's advantage to allow TDZ to continue to post podcasts? They're asking for TDZ to sacrifice all revenue from the pod as damages. In their mind could they be thinking 'the more they make, the more WE make".
ReplyDeleteAnd they keep talking about talking with lawyers. Usually the first thing a lawyer tells you is STFU. Because everything you say becomes evidence. For example, there's a few comments on today's Patreon post. To shorten one a touch, the gist is "Cumulus...kindly eff off" . Posting that episode, and getting that response is 'encourage (ing) or induce (ing) others to disparage the company. Every single post, every single tweet, every podcast appearence that causes backlash towards cumulus is further disparagment.
And Cumulus has Jake dead to rights on the non-compete and the IP infringement. Add in teh continuing encouragement of disparagement, and it's like Cumulus is like 'you want to dig a deeper hole, here's a shovel. Cause all you're doing is giving us more evidence.'
@c- 745p
ReplyDeleteDisclaimer: this is not a defense of D&J nor a D&J pompom post
No, it’s not in cumulus’ best interest to let them continue to podcast. It creates a course of dealing issue that D&J could argue to their benefit in whatever court they are arguing. The longer they let them issue content without demanding it stop brings in to question whether or not said content really harms the Cume.
I must echo the plainsman of the Americas. What the hell is cumulus waiting on? If the contract language is so iron clad, if the non competes are so clear, the trademark issues are as black and white as they appear, why the kid gloves. The C&D should’ve been out after the Dan and Jake goodbye to the ticket and the TRO 48 hours after. As much as I am baffled at D&J’s actions the last few weeks I am equally baffled at Cume’s lack of decisive actions
Wait there’s a chance that cumulus just doesn’t go through with this? Why would they do that? Just empty threats?
ReplyDeleteAgain. The other steel toed boot is about to drop. Wait for it. . . .
ReplyDeleteAre you suggesting they may add additional parties to the same complaint?
DeleteCumulus is gonna sue Rhynes and The Freak for using What’s on Mike’s Mind and The 2-minute Drill
ReplyDeleteI find this memo from the National Labor Relations Board interesting - https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-issues-memo-on-non-competes-violating-the-national
ReplyDeleteDan and Jake are friends with Matt Bruneig. He used to be a lawyer for the NLRB.
Yes, they do?
ReplyDeleteWith this other supposed boot about to drop, do Dan think they are faring well? Are they smarter than everyone else? Are they concerned?
ReplyDeleteI’m just still shocked that they are getting sued and still trying to toe the line and release podcasts
They received the Cease and Desist before the lawsuit was filed, Akash said he read it last week
ReplyDeleteNeither Dan or Jake's employee agreements or NC's are anything close to unreasonable, per that memo.
ReplyDeleteIt's SIX months - NC's that have been contested are for years. Not half a year. That aside it really is moot. Additionally, both of their deals specifically spell out that 5% of their wages is for this 6 month time and that they understand and AGREE to it. (read Section 3: Exclusive Negotiations and Right to Match).
It's up to them to save it for a rainy day.
Well, that is here, and they will NOT win this battle in court.
Putting aside some of the cryptic comments and all the rest of the legal eagle wannabe stuff, Dan and Jake have done a very stupid thing and have done it in almost the worst way imaginable. If what they truly wanted was to get off the traditional media "grid" so to speak, their contracts were up. They could have said no thanks to Cumulus, never even entering into the bargaining room much less sit at the table, walked away, sat out the 6 month NC, and in the interim put together a launch plan/secure sponsors/financial backing/et alia. But they chose, entirely on their own volition, to take this surreal, Dali painting-esque path. So the question is, what do they actually want? Their story is all over the place. What is the end game here? If they would have just resigned or on the day their contracts were up said we will not be reupping, they would at this point have roughly 4-1/2-ish months to go in their NC. Instead, this. I ask this question once more and in all seriousness because I have no answer: What is it they want? It was obvious they didn't want to work for Cumulus any longer. Why then all this? Any answer about living wages for their support staff or Jake/Dan being under compensated or Cumulus trying to screw them is a total bullshit, un-serious answer. It's a non-starter.
ReplyDeleteAre they actually Dumb and Dumber? Or are they playing 4-D chess? If the latter, how? Because from where I'm sitting, it looks like they think they're playing 4-D chess but in reality are still trying to grasp the rules of checkers.
Any help here would be most appreciated.
Here's what I think, Lovey. I think they went into negotiations with their heads full of and idealist understanding of how business works. That they consulted with and read about those who have bucked the system and did their own thing with great success. They went into it as such but failed to take into account many important factors that applied to their situation but perhaps did not to others'. I think from that point things quickly got out of control and they began to lose their grip on the reality and seriousness of what was at stake. Next thing they know, they're convincing themselves of all sorts of fantastical scenarios and are also allowing themselves to be influenced by and encourged to go down this road by those they shouldn't listen to. Now they are treading water in an ocean of quicksand. I don't think they're are Dumb and Dumber. I think they were naive and got in over their head and have taken some bad counsel in trying to find the shoreline. I do hope they find safe harbor. Not so sure they will. I do think Dan will cut a deal to abide by the NC and C&D all activities. Once that period is over he will find another job in another market earning far less. Unlike his partner he has no safety net (Jake admitted as such). Jake too will abide by the contract and agree to bow out in order to avoid astronomical legal fees, and will be doing IJB as a side gig/form of an adult softball team and will use his MA to secure a nicely paying job. This is ALL Dan knows. Jake has options.
ReplyDeleteI believe to some extent they believed their bosses like Cat and Dan Bennett were on their side, "their friends" like Jake said. They believed the non-compete applied to other stations like the Freak and they could continue to podcast as a side gig just as Jake had done with IJB the entire time, they never believed Dan Bennett would spend enormous sums to destroy them.
ReplyDeleteWhere they fucked up was believing that the domains and Twitter/Youtube accounts that they had purchased and created while employed at the Ticket belonged to them, and was not part of the Cumulus IP umbrella that they signed away in their contracts. Whoever smoked too much one night and simply converted their old accounts over to Dumb Zone and created that edge MSPaint logo was in reality nailing their coffin shut.
I believe they are getting advice from professional attorneys who do not try IP cases in their day to day practice. The attorneys they are facing close dozens of these identical cases a week, know every trick and loophole in the IP world, and have cultivated relationships with the actual Judges they will be going before. They also know how to inflate billable hours and drain non-corporate entities to the bone.
They wanted PMD, but knew they wouldn’t get that at TT and to avoid looking like turn coat defectors - have executed a long considered plan to both make them look like the victims and TT the bad guys.
ReplyDeleteYes. Dan and Jake have chosen to stab Bob in the back and probably consider it minor collateral.
This has always made the most sense. To Dan, Bob died the day he left him.
DeleteThey’re not stabbing Bob or Corby in the back. Read between the lines on who they don’t talk about. Jub cried at Barbie but was nowhere near crying when talking about D&J, he and Junior seemed irritated.
DeleteI think at some point Gordon would just like to see it all burn down when he’s done broadcasting.
I think they were actually irritated because on some level they felt Dan and Jake were lying to them. Just like Danny, Sirois, and Julie apparently did on their way out.
DeleteIf that’s really the case, which does seem likely, it’s pretty sorry. Bob works very hard and Dan should be happy for Bob to get the promotion. I know there can be some jealousy, but Dan can’t be serious if he thought he was equal footing for a promo as Bob.
ReplyDeleteThe media catch up to MTC a couple days later:
ReplyDeletehttps://www.dmagazine.com/sports/2023/08/the-parent-company-of-cumulus-and-the-ticket-is-suing-ex-hosts-jake-kemp-and-dan-mcdowell/
https://news.radio-online.com/articles/n43997/Cumulus-Takes-Legal-Action-Against-Former-The-Ticket-Hosts
Barret Sports Media also had a piece earlier today, as someone has already posted here.
Lets not forget that the Friday after the D&J video, the same day Ticket shows are coming to terms with the split - 97.1 announces a morning and afternoon lineup change. Just an absolute coincidence, right??
ReplyDeleteI think Poor's got a good grasp on TF's origin story - - toss in some previous Rhynes comments (paraphrasing: "I'm not in this for the long haul" = just keeping this seat warm), moving Julie to PM drive with Grubes...a Dan and Jake jump over there once legally able to seems to make the most sense to me.
They left on the highest of Highs, best midday station ratings for month's. They've racked up 4k + in subscribers.. they wanted to keep the flame lit, hey only $6.90 (nice!) - as a good amount of us have said, they aren't Dumb guys. Maybe didn't fully think out this 6-month plan, I'd def agree! But yes, if the narrative now turns to "Our old evil Big Corp didn't want to keep us with TT and gives us podcasting rights, now they involving the Courts to shut us (and you too, DZ1's!) down. Oh, 97.1 is Actually entertaining an offer to bring us on board...and some of our Friends are already over there, too. That could be Fun!"
I for one do not begrudge them making a move for better pay and a better timeslot. I do not consider them "traitors" either for attempting this move. They don't owe the Ticket, the Musers or the HL anything. I don't even care if they were truthful to those folks, especially if it helps them with the legal wrangling of a timely move.
ReplyDeleteThe mechanics and legal considerations are another matter. Personally, I'm pulling for them and hope they prevail against Cumulus.
No new filings as of 8:15 on 8/8.
ReplyDeleteMy money is on the other shoe to drop at exactly 2:00 PM today. It being the worst moment of the year, and all.
ReplyDelete@stapleman01: I think almost no one considers them "traitors," nor does anyone think they should not have acted in their best interests to improve their lot. Almost everyone on this site agrees with you on that, but recognize that their way of going about it has been at best very questionable.
ReplyDeleteTo prevail on all counts of that complaint will be very difficult for them. However, I will say that the longer Cum/Susq dithers on moving for injunctive relief, the better their chances become.
@APA: Thanks for your periodic reports keeping us up to date.
ReplyDeleteLooks like we need a new thread to keep comments on a single page. Up shortly.
ReplyDelete