A home for those who love almost everything about The Ticket (1310 AM, 96.7 FM, Dallas-Fort Worth), and who would like to discuss -- respectfully and fondly -- their thoughts on how (and whether) to eliminate the "almost."
Wednesday, August 2, 2023
There’s an Angle to This We’re Neglecting; Or, Some Sketchy but Nevertheless Long-Winded Speculations on What Might Happen Based on Limited Information
I know it’s long. I know you don’t have time to read it. I know you don’t like long posts and it makes you not like me. Nothing I can do about it except not write so much. But there’s an angle here that, in my judgment, makes things somewhat more dire for Smilin’ Dan and Jake, and it needs some unpacking and pre-saying.
So crack open a Pacifico – you may need to have another one cooling – and sit back for a bit. I think you will find this interesting.
Most of what follows must necessarily be speculative and will quite probably turn out to be wrong, perhaps ludicrously wrong.
PART 1
The Confessor Formerly Known as C (now C Minus) mentioned something the other day that had also come to my attention. I believe it is of considerable importance. I’d like to introduce it here and pass along some other thoughts based on my experience in this area of the law.
We’ve been focusing on the covenants not to compete in Jake’s and Smilin’ Dan’s contracts. We don’t know how broad they purport to be, but there seems little doubt they exist. They probably last six months; they probably cover Dallas metro, but in this day and age of nationwide broadcasting of even local events, it is not beyond imagining that they may attempt to prohibit any competition within the United States; if you’re sitting in Cleveland, you can draw listeners from DFW as easily as if you were sitting here. We don’t know if they’re broad enough to cover podcasting; it seems likely that they are, and likely also (to me) that in 2023 a court would regard a podcast as competitive with a station that also has numerous podcast properties. The noncompete is a formidable weapon in an employer’s attempts to protect its intellectual property and its revenue. Texas courts routinely enforce them, but sometimes throw them out or modify them. No idea what will happen here.
[PS: There is chatter about whether the lads “had to resign.” Answer: Yes, because it was in THEIR interest to do so. They needed a stake in the ground from which to begin measuring the time for their six-month noncompetition covenant. If things were just dawdling along and they were getting paid during negotiations, then that period hadn’t started; after contract expiration, if they were still on the payroll they were at-will employees. They needed that clock to start ticking, and resignation did it.]
I want to focus on two other things that one routinely finds in radio employment contracts, according to my sources and research. I’ll cover the least important one first:
The first thing is:
Non-Disparagement. Their contracts quite likely contained mutual “non-disparagement” clauses – neither party can say anything bad about the other after expiration or termination. I think Cumulus has done a pretty good job of keeping its hosts from unloading on Smilin’ Dan and Jake. Can we say that SD + J’s lawyers have banged on SD+J to keep their yap shuts about their own treatment at The Ticket, or other critical reports? I haven’t been listening to the podcasts, so I don’t know. I didn’t hear anything sufficiently disparaging in their scruddy video that would have given me shpilkes in my genechtagazoink if I were their lawyers. So this is probably not a big deal, but breach of this clause would probably be alleged if Cumulus were to sue.
I should mention that I received a communication from a Dallas radio guy (not a Ticket employee) who writes that he is “alarmed” at a recent Dumb Zone podcast in which, he claims, the lads issued statements regarding certain Ticket policies that are “100% disprovable.” Whether this is accurate, I have no way of knowing. But it’s what’s “out there” in the community, and, if so, it could be judged violative of the non-disparagement clause. (Again – if there is one.) If I were advising SD+J, I’d be yelling at them to SHUT TF UP ABOUT THE TICKET.
“Right to Match,” Sometimes Called a “Right of First Refusal.” It is very likely that, in addition to the noncompete, Smilin’ Dan and Jake have in their contracts something called a “right to match,” but what a corporate warhorse like me would call a “right of first refusal.” (If they don’t, them much of what follows is pointless.) This means that if a party to a contract containing such a clause receives an offer from a third party, the party must disclose it to the other side and allow them to match or exceed that offer. (Whether the offer recipient must accept the employer’s equal or better offer would depend on the language of the contract, which, I never tire of saying, we don’t know.) The offer from the third party (iHeart, in the case we’re imagining) must be bona fide (not a sham used to pry better terms out of the employer), and must be sufficiently detailed to allow the other contracting party to evaluate it. This requirement would most likely last to the end of the noncompete period.
What does this mean for SD+J’s situation?
If they haven’t had any offer from iHeart, no deal to go there when the noncompete expires, it doesn’t mean anything.
If, however, they have engaged in negotiations with iHeart – which pretty much means that iHeart had to have made some kind of offer at some time, even if it was a counteroffer – then it means one helluva lot. SD+J would have been required to disclose it to The Ticket.
And remember: This obligation to disclose to Cumulus does NOT require a completed deal, not even a handshake – just a bona fide offer from the third party.
The first thing that occurs to me is that this explains SD+J’s somewhat clumsy and noncredible tap-dancing about their future plans. If they have a reasonably concrete deal waiting for them with The Freak, then they have violated their employment agreements by not disclosing it and giving Cumulus an opportunity to match EVEN IF CUMULUS HAS REJECTED A SIMILAR COUINTEROFFER FROM THE EMPLOYEE DURING THE NEGOTIATIONS. That is: It is not a defense to say “we didn’t disclose because Cumulus was never going to give us the terms that iHeart was offering.” If Cumulus had known iHeart had offered to give SD+J whatever they were going give them, their answer might have been different. More on this below.
It gets worse if SD+J were playing footsie with iHeart before they left. The general feeling seems to be that they do have such a deal – again, speculation. But that video – that shoulder-shrugging about what they were going to do – was pretty smug, at least on Dan’s smilin’ part. Most Confessors seem to think they slide right into a Freak host spot, PM drive, perhaps, when their noncompete expires, which, if true, would suggest that there was an offer on the table from iHeart sufficiently concrete that it should have been disclosed to Cumulus.
For a possible answer, we turn to that Dallas sports journalism gadfly and scamp Richie Whitt.
Whitt seems to have known that SD+J were planning to decamp to The Freak months ago.
If that happens, it strongly suggests that SD+J had an offer from iHeart of sufficient firmness that it had to be disclosed. We won’t know how likely that is unless, as Whitt tipped, they do end up at The Freak after the six months has passed.
If they do end up at The Freak, that is strong evidence that SD+J breached their right-to-match clause, and that raises the possibility of a nightmare scenario for our lads.
The nightmare is: (1) Cumulus gets an injunction against Smilin’ Dan + Jake on the noncompete. The Dumb Zone is instantly turned into the Silent Zone as they’re removed from Patreon for the noncompete period, which will start not with their resignation, but from the date that the injunction is issued – Cumulus gets its full six months of noncompetition. (2) If, at the conclusion of that period, they try to go to work for iHeart, Cumulus sues them again for breach of their right-to-match clause, seeking another injunction and possibly damages. Now, Cumulus could make this a part of the initial lawsuit if they have good current evidence that SD+J and iHeart have made a deal. And, of course, that evidence could emerge during discovery in the lawsuit.
What makes the discovery of such footsie pretty certain – if it took place – is the fact that Cumulus would likely sue iHeart along with SD+J. iHeart absolutely knew the terms of SD+J’s contracts if they spoke to them at all. If they assisted SD+J in breaching their contracts in any way – including, possibly, agreeing to pay their legal fees if they got sued – they could be liable for the tort of “intentional interference with contractual relations,” and Cumulus would probably throw in a conspiracy count as well (which doesn’t really add much to the lawsuit, but it sounds so evil).
Discovery in the lawsuit would require iHeart to disclose ALL communications between SD+J and iHeart (including Freak hosts) AND all INTERNAL communications relating to a potential relationship. And that would include communications with Freak hosts. That alone would be a huge deal, and might not reflect favorably on our lads. And if there was an undisclosed offer, Cumulus would have a strong case, with relief that would be devastating to the careers of Dan and Jake – including, possibly, an injunction against our lads going to work for iHeart. And of course, those galactic legal fees in the meantime.
Will Cumulus sue SD+J and seek a temporary/permanent injunction and damages, throwing iHeart in for good measure, for breach of the covenant not to compete and the right-to-match clause?
It depends on a lot of things:
(1) How mad is Cumulus? Pretty mad, I’ve heard. It is apparently beginning to dawn on even some of the non-executive employees over there that, in all likelihood, SD+J did not deal with them in good faith. For what it’s worth (nothing), SD+J do not seem to be faring well reputationally among industry professionals, either.
(2) How strong is the case for an injunction kicking them off a podcast for six months? It didn’t work in the Burke case C Minus and I have described, but that was in 2016. Cumulus lost because they couldn’t show competition between the new podcast and what the court called “the radio station.” The Ticket is more than a “radio station” now, and I expect both that the noncompetes were tightened up to take account of the new digital world, and that Cumulus trial lawyers would have learned some lessons. One way a noncompete might broaden its reach would be to have the employee acknowledge that a particular modality (i.e., podcast) would be competitive; another would be to define competition as any modality that the employer used at the time of the employee’s separation.
(3) How strong is the case for an injunction and damages for breach of the right-to-match clause? This is harder for observers to judge because it depends on communications between the parties to which we aren’t privy. Also, that claim would have to establish an “offer” by iHeart that was sufficiently concrete to have been disclosed, which can be a difficult thing to prove. I suppose a nod and a wink might not be solid enough, but no one is thinking that iHeart said “hey, keep us posted on your plans when your noncompete expires.” Although the podcast gig may work out without a broadcast platform (so far so good, it seems), it’s very hard to imagine that our lads would have departed without some fairly firm agreements as to their return to broadcasting.
(4) If you were a Ticket host and you saw Jake and Dan making a success of The Dumb Zone without a big company looking over their shoulder, and you saw Cumulus not attempting to enforce a noncompete, what would you think? Cumulus would seem to be strongly incentivized to come down hard on our lads, if for no other reason, as an object lesson. And since SD+J seem not to be in the best odor among Ticket stalwarts right now, that might not be seen as excessively heavy-handed or terroristic.
And I gather Cumulus has sent a cease-and-desist notice (or “demand”; don’t call it an “order”) to the lads. Which almost certainly means a lawsuit is coming.
You can skip this part. Just some impressions on my part.
Did SD+J “do anything wrong”?
They certainly did not do anything wrong by considering alternative modalities to display their talents after their contracts expired, even if that might be considered competitive. It is not violative of a covenant not to compete to plan for future competition.
They did not do anything wrong by not disclosing their consideration of such plans.
They didn’t even do anything wrong by planning to string Cumulus along as a negotiating strategy. It is not illegal or violative of any contract – without more – for them not to have negotiated in good faith.
Now: if they’re competing with the podcast and violating the contract, that’s wrong. And if there’s a “right to match” that they and iHeart ignored, and matters are firm enough to have been disclosable and they didn’t, then that’s wrong. Purely legal matters that depend on comparing contract definitions and language to SD+J’s actual conduct. That’s what I’ve been talking about above.
But now we come to something that is both not very wrong, and really wrong:
Lying.
If they lied to Cumulus and their colleagues about their plans, well, that’s not NECESSARILY a breach of contract or a breach of any law in their position as employees. (It would be wrong to lie about something affecting the operation of the station, but we’re talking about lying about their plans at a time when they’re under no obligation to the station.) They are not fiduciaries for Cumulus or The Ticket.
HOWEVER: lying can be wrong if it amounts to fraud, if the lie was meant to induce the party to whom the lie was told to do something, or to refrain from doing something. If Smilin’ Dan + Jake said “we don’t have a deal with iHeart” and they did and failed to disclose it, then Cumulus was fraudulently deprived of its contractual right to match that offer. A variation of this would be: “Yes, we have an offer, and it’s this,” and they report an iHeart offer that is way more than iHeart actually proposed, knowing that it would not be acceptable to Cumulus. (That is: if iHeart made an offer, the lads disclosed it, and Cumulus turns it down, then the actual iHeart deal must be no worse than the terms disclosed to Cumulus. Got that? iHeart has to come through with employment of the lads that is at least as good as the terms reported to Cumulus.)
Lying is also wrong as a strategy, because lies become evidence in court and evidence of an awareness of liability and poor character, which a court may take into account in deciding whether to grant “equitable” (i.e., non-monetary, injunctive) relief. In other words, it’s wrong – dumb species of wrong – as an evidentiary matter.
The foregoing may seem like I’m coming down hard on SD+J. I don’t mean to. I liked their show, I thought it took a huge leap when Jake was paired with Dan, the bog was easier to slog through. I’ll miss it.
I wish them success – not necessarily lawsuit success, but success in the industry. I’ve bet on myself before, and it’s a scary thing. Seems like they can at least make a living doing podcasts, and may be a real darned good one. I think that’s great. The fact that many of us have a sentimental attachment to The Ticket should not affect our acknowledgment that hosts we love and think of as friends have the right to make a better living than the one Cumulus is prepared to offer.
I am fearful, however, that they may have gone about it in a cavalier, chip-on-shoulder, ignorant, and possibly ill-advised fashion that – in the short-to-medium run, at least – will cause their ventures to fail and quite possibly damage their careers. They may sneer at contractual terms they don’t like, but the Texas legislature and courts do like them, and enforce them.
@Surly: Yes. The information regarding the "right to match."
I considered that extremely significant, if, in fact, the contract contains such a clause. I have received some information (although not from a Ticket source) that employment agreements for talent in the industry do contain such clauses, and I had to guess at what they looked like. I'm very familiar with this type of clause in other types of contracts.
Remember that "discovery" is not one-sided so Cumulus may have their dirty laundry out in public space too. They will not be willing do that as the salary info wouldn't just impact their Dallas shops.
But salary info isn't privileged, and that info is already known to Jake and Dan. I suspicion that there aren't a lot of secrets about compensation at the host level, including within the industry.
But you're certainly right that Cumulus will need to disclose what they have about the negotiations. Guessing it won't reflect that poorly on it.
Also, it’s Cumulus’s highest billing station in their biggest cluster in their largest market. I’m not sure that finding out what tier 1 talent in Dallas makes is going to help some dude in (googles cumulus markets) Fort Smith Arkansas or Muncie Indiana as he renegotiates. C
Plainsman- I’ve heard the right if refusal thing also, in relation to Danny Balis. If you believe their story, his non compete ended on Monday, Rhyner calls him on Tuesday, he interviews on weds, hired by Friday and started the next Monday. I’m sorry, I find it hard to believe anything involving a corporate HR department happened thst fast. But that’s the story they need to tell to avoid the right of first refusal clause. The Freakers were very squillery at the time about who had talked to Danny when. At one point Rhyner said Danny was in it from the beginning, only to walk that back later. C
YOW, I left out a part, and it contains a sexy prediction! Here it is:
PART 4.5
One more point about a lawsuit:
If Cumulus is going to sue to enforce the noncompete, they’d better farking well get to doing it. The longer they wait, the more it looks like they’re really not suffering any harm from The Dumb Zone. Delay in suing for injunctive relief is a defense to a claim for an injunction.
To get a temporary injunction in Texas – that is, one that takes place right away – I mean instantly, same date as the first hearing, not after a protracted trial -- Cumulus will need to show (1) that it is likely to prevail on the underlying breach of contract or tort action, and a (2) probable, (3) imminent, and (4) irreparable injury if the injunction is not granted. (“Irreparable” means “money isn’t good enough.”) This is a tough standard to meet, and it only gets tougher if the employer doesn’t rush in pretty promptly upon receiving evidence of breach. The first podcast was a week ago, and there have been 5 posted. Cumulus had better get its ass going if it’s going to do anything.
If a cease-and-desist notice was sent, it probably contained a deadline for compliance. That deadline was probably on the order of ten days. Let’s say that C&D was sent around July 25. If so (more “ifs”), then I WOULD EXPECT A LAWSUIT TO BE FILED WITHIN THE NEXT 3-4 DAYS, if at all.
Interesting. I did a quick search and found a 2017 case from United States District Court, N.D. Texas, Dallas Division.
RADIO NETWORKS, LLC, v. BAISDEN ENTERPRISES, INC., and Michael Baisden, Defendants/Counter-Plaintiffs, v. Cumulus Media, Inc. -- 2017 WL 2558792
Cumulus definitely included a Right to Match in that contract. From the decision:
"The unambiguous language of the Agreement gives Plaintiffs the right of first refusal for Baisden's services during the “Exclusive Negotiations Period” and the twelve-month period following the expiration of the Agreement. Paragraph 2(e) of the Agreement requires Defendants to provide notice of any third-party offer to Plaintiffs and gives Plaintiffs the right to match any such offer within fourteen days."
Dan said that he would always tell anyone (in the business, I presume) that asked him what he made, but that nobody who was there longer than him (Musers and Hardline, I presume) would ever tell him what they made.
Typical of that generation that somehow believes that it's "bad" to share salary info
@Buff Tanner -- Total Man: Great find. Many thanks. Dan and Jake may be close to reaping the whirlwind with their somewhat lackadaisical approach to the niceties of unraveling their relationship with Cumulus.
Wow, a twelve-month term on that -- that could keep them distant from iHeart for a career-killing length of time.
If Cumulus wins, of course. At the very least, Smilin' Dan + Jake have taken a huge risk if they have an offer from iHeart and failed to disclose it to Cumulus (the contract probably requires disclosure of the terms in writing). I hope they have top-tier representation.
It will be one big pissing match for a month or two and then the accountants will get involved and neither side will want to spend the $ beyond a couple of threatening letters
This is fascinating given my background in operations. Familiar with everything you said PMan, but the injunction. If a C&D is filed, what is the burden of proof? I ask, because I am wondering about evidence gathering. I would assume that Cumulus would have attorneys asking for text messages from everyone at TF to RW, and possibly between TT hosts as this transpired. Would that be a reason for the delay in a C&D? And, boy, that brings into question a LOT of things if text messages start coming out.
(1) "Equitable relief," like an injunction, has a higher burden of proof than a suit for damages because it requires the court to order a party to stop doing something, or to do something, other than just pay money. However, because (see (2)) a temporary injunction is only temporary, a court may enter it even if it isn't a slam-dunk for the plaintiff if the court thinks the plaintiff is likely to have a good case after discovery, since requiring the defendant to do nothing for ten days usually isn't that great a burden on defendant.
(2) The way it usually works is that the plaintiff will initially file a motion for a "temporary injunction," as it is called in Texas; most other states would call it a "temporary restraining order." That is a hearing where, if the court thinks there's something to the lawsuit (see the things that must be proven in Part 4.5, above), it will enter an order, sometimes called a "status quo order," that freezes the parties in place for no longer than ten days, in the usual case. That may be extended by agreement of the parties or by further court order. That all takes place in one hearing, prior to discovery, in which the parties may present evidence and testimony, but again -- only that which they already have, not which was gathered as part of the discovery process.
(3) In many cases, entry of that temporary injunction will end the case -- the enjoined party will realize it's probably going to lose, and the thing either settles or the enjoined party folds its tents. If the fight continues, it will proceed promptly to a "preliminary injunction" phase, possibly subject to expedited discovery, and a second hearing to determine if an injunction should be entered pending a full trial on the merits.
(4) Next would be the full trial on the merits, at which time the court would determine things like damages and whether to make the injunction permanent. Sometimes the "preliminary injunction" phase is skipped and combined with the "permanent injunction" trial.
(5) Yes, Cumulus would seek all those communications. No, it would not delay a hearing on the temporary (10-day) injunction, but might require extension of that injunction to permit some discovery to take place prior to any further injunction hearings.
Let me add here that it has been awhile since I've been in this game, so if we have any active practitioners out there who can correct my primer here, please do so with my thanks.
Thank you P-Man for the enlightening commentary. Regarding Part 3 and culpability of TF playing footsies with already under contract radio personalities at other stations, a throw-away comment by either KT or Cavanaugh several months ago during one of my random listening, may help connect-the-dots. Don’t remember which of the 2 guys said it, but while discussing subject of women in sports media, the comment “Well, what makes me very warm inside is that the radio personality that I had a huge crush on while at the last station, is considering joining us here at The Freak”. Considering both guys worked at The Fan the same time as Sybil Summers...and Sybil used to be married to Richie Whitt, but they are still buddies...makes one start to see how “footies” and “behind the scenes information” is created.
P-Man, I’ll just say the analysis is spot on in a lot of ways, & I will say I think your conjecture is generally in the right direction.
However, I just don’t think litigation is likely. So long as D&J don’t hit the airwaves or announce as such prior to the noncompetes running out, I just don’t see Cumulus bothering. litigation won’t get Cumulus any money. Litigation is a crapshoot under the best of circumstances. It also brings attention to D&J, which they want & that doesn’t help Cumulus.
@B#: Thanks. Is what I'm calling a "temporary injunction" equivalent to a "preliminary injunction" in other states, do you know?
Also: Do you think it's likely in this case, since they've been gone for a week now, that they would seek a TRO ex parte? Or would they go right for the temporary injunction?
@In-House: I might agree with you if they hadn't immediately sent a cease-and-desist demand. It doesn't absolutely mean the sender is going to sue, but if they deliver one, the other party does not cease or desist, and then they don't sue -- it encourages further violative behavior down the line by others.
Now: One thing I don't know is what they asked them to cease-and-desist from, because I haven't listened to the podcast where, apparently, the lads read the demand. Does anyone remember whether it demanded that they not start a podcast?
PMan, a tiny and maybe even totally unrelated or irrelevant item regarding non-disparagement. I am currently beholden to this, as is my former employer. An important element of that clause in my agreement is that non-disparagement does not prevent either party from sharing truthful things. So I can say things about my employer (and they about me) that one of us might not like. But as long as they're truthful, I'm free to state them (as are they). I've listened to all of the DZ pods and I don't hear anything that, as far as D&J are concerned, wouldn't reasonably be considered truthful. They've also intimated that legal counsel is reviewing each episode prior to publication. Now, they could have bad counsel (shocking!) but I just share that as another data point.
Meanwhile Smiling Dan and Jake are rapidly approaching the 300k USD/year mark on Patreon. We could find they get more support when the much bashed Cumulus nation dirty laundry comes to light. Most P1s love The Ticket but have been taught by current hosts to look down at Cumulus as an entity.
Man they'll need tro first, then convert to TI within 2 weeks. I'd be surprised if they'd seek the TRO ex parte if D&J are represented. Most local rules have a conferencing requirement before ex parte relief is sought.
When folks like Gordo/Jake have done outside things WHILE employed by Cumulus, did they get a waiver from Cumulus or did Cumulus look the other way?
If the former, the waiver for Jake to do IJB is going to be Exhibit A that podcasting was specifically covered by his restricted covenants. If the latter, that's going to be prong 1 of Jake's defense.
The other point that you make indirectly Plainsman but I will make more directly - yes DaJ certainly have lawyers (and have referenced their advice). But that doesn't mean they're actually listening to them.
PMan, the C&D letter was mentioned on the 7/27/23 episode. He doesn't read the whole thing. Just the subject line of "cease and desist" and then the following:
"We already understand you have posted an audio program to YouTube and are distributing a program called The Dumb Zone, which puts you in direct breach of your agreement. Accordingly we demand that you not only take down the programs immediately but refrain from doing the same during the noncompete period."
Dan: "This is certainly a different interpretation of things on the written page that were signed off on by various parties."
He doesn't state when he might have received this. In the episode with Akaash that was published after this one, but clearly recorded in the very first days of their departure, they make several references to the cease and desist and Akaash insinuates that he's read it. So...no idea when it was sent/received.
@The Thermostat: Your waiver point is a good one. My only quibble:
When Jake and TC started "It's Just Banter," they were grundoons, not full-time hosts. The low salaries of non-hosts (and this point applies to lower-level employees generally, not just media) means that some competitive activity is generally tolerated as long as the employee is not using the employer's intellectual property. Also, they probably did not have contracts that prohibited it.
Jake and Dan, being hosts -- and Jake having signed a host contract by this time, if not one that compensated him lavishly -- apparently do.
@The Thermostat: But in support of your comment: Unless IJB was grandfathered in (or there was a waiver) when Jake signed a host contract, then yes, the continued existence of IJB at a time when Jake was under a host contract would be what we mouthpieces call "a good fact" for him.
0U812, I'm not sure what your intention here is. You're trying to, what, convince others that TDZ is already a smashing success? That anyone who thinks it's too early to make a judgment either way is, ahem, dumb? That the often bandied about fallacy that terrestrial radio is a dying medium (it isn't, please look at the data yourself) and TDZ and its cohorts are the only viable way forward? This daily, sometimes more than once per day, posting up of TDZ's latest subscriber numbers and the projected yearly income (of course with no overhead, etc., factored in), again, is in service of, exactly, what?
Perhaps I'm wrong, but I recall only a couple of comments that have out and out stated DnJ's venture will absolutely fail. I recall none that claim it's already a failure. What I have read and have myself said is that it's far too early to say anything about the success or failure of TDZ/DnJ. Let's revisit in roughly 6 months and see if whether they're employed at another corporation engaged in the business of a *dying medium* or not. If they aren't, then let's see how they're faring. The real question, granting that the pod route is indeed their route, is what it looks like in 1, 2, 3, years from now. That is, its sustainability? Moreover, is it sustainable and generating an income commensurate to what they would've been earning at Cumulus or iHeart or CBS? We all, including myself, tend to be short sighted, especially so when we're emotionally invested in something.
@OU812 I think you are woefully misguided and ill-informed when it comes to business and money. Both in the micro and macro sense of the terms "business" and "money." With all due respect you seem to have swum a bit too far from shore.
Plainsman, I'm not sure how anything in my comment skated anywhere near close to an ad hominem. I merely asked questions. Nowhere in the comment is a slight directed OU812's way, either implicitly or explicitly. So I'm not sure what you're referring to. I don't think it's out of line to question intent. Now if I, say, question intent and my question either implicitly or explicitly points toward the other party having bad intentions themselves, well that's another story. But it's evident from my comment that that is not the case here. Allow me to quote myself: "We all, including myself, tend to be short sighted, especially so when we're emotionally invested in something."
I'd promise to be more careful in the future, but I won't. Not on this particular occassion, at least. It's unwarranted. If we cannot question another's claims and (when warranted, as I belive it is in this case) motivations, and do so without resorting to insult (which I did not engage in), then what is the point. If I want to be a part of an echo chamber, I'll head over to one of the other outlets.
Here's an angle that no one has taken so far. At least I haven't seen it. It's something along the lines of legacy Confessor, DA/SKA, would discuss: Cumulus has absolutely blown up many of there stations over the past decade plus. Very successful ones I might add. They've demolished entire market clusters of stations in order to cut costs. WBAP, a Cumulus station, is also looking for a new midday host. The job listing specifies that they are not looking for a politically focused host/show. Whoa. Say what? That's what WBAP does from 6am-10pm M-F and some on the weekends. That's very possibly an indicator that a big change (format?) is coming. These sorts of indicators and changes can be contagious in a cluster. I'm not saying The Ticket is going to change formats. Well I'm not saying it's likely. What I am saying is that when The Musers or any of The Hardliners come up for contract renewel/negotiations, don't be surprised if they're low balled, asked to take a cut, or even shown the door. Regardless of their success and all they've done for the station. And don't be too shocked if the unthinkable does happen. Like I said, Cumulus has blown up very profitable and popular stations. SF's KGO and KFOG come to mind. SF is a larger market than the DFW, so don't think market size has anything to do with it.
Not saying any of this is going to happen. But I am saying it could. It's not tinfoil hat stuff.
WBAP/KLIF has a newish PD. And if you listen closely, the morning show has moved away from the political side of things and more into straight talk. It seems to be working, their ratings are a lot better than they were. Top 10 6+ in the last book. And from a programming side it makes sense, a political focused station is only going to get the partisans on your side and the hate-listeners, who listen because they disagree with the Hannity's and Levin's of the world. For example, look at KSKY's ratings- https://radioinsight.com/ratings/dallas-fort-worth/ They're in the 30's They barely beat KCBI's Stream, and not much better than KNTU, which, when I worked there was weak south of 121 and unlistenable south of 635.
And I have to say, I lol'd when looking at that list. There's a reddit post that's basically 'What the hell has Dan Bennett ever done?". Look at those ratings, He's gotten 4 of his 6 stations in the top 10. I don't have the patience or the math skills to add up each group's share, but even with poor performances from both KLIF's AM and FM, the Cumulus cluster has to be close to the top of the market, Does losing THZ affect that? Could be, but the lackluster performance of Rhyner and the Freak as a whole shows that people are loyal to the format and station, For people who don't hang out on message boards, will they even be aware of THZ's departure? Poster above who talked about 8 friends has a point. No not a representative sample. But if you're a casual P1, or a P2, and flip over occasionally expecting to hear sports, and you flip over and hear sports, the departure of D&J hasn't ripped a whole in the space-time continuum of their listening. C
@ Lucky - That was definitely to be expected - Jake def wears his heart on his sleeve & no doubt Oxnard Ticket Week + New Midday Show announcements were hitting him hard.
Just A Few Observations -
-1. D&J-DumbZone- I'll pre-say I have not purchased EP's-- the Free Ones = about what i expected. Scatter in some Ticket/Cumulus dirty laundry & thats what the majority are wanting right now.
-2. I really enjoyed HangZone. I also enjoyed Mikey S..and Danny....but I have not switched the dial over.
-3. New Ticket Midday = I hope Blake is a part of the Invasion, and DJ contributing will be great. The 1-3 with Mino & SeaBass--- once Monty joins with Ham and Ty - - this will be Great. Just lose the long winded opening...play short clips. No doubt that Monty will make this show so amazing!
Bad optics on Jake's end these past coupla days. Dan too. But man oh man, Jake. All I've heard for over a decade now is how smart he is. These guys just can't seem to help themselves. If I'm their legal counsel I'm either about to or seriously considering stepping away. Sorry, fanboys, things are in all likelihood about to get ugly for your heroes. Sometimes you create a mess and the mess messes you up.
TDZ presentations are getting better. Dan is working in some drops and other audio. Jake mentioned last night on the latest release that they could really use a 3rd person (potentially a producer who is also on mic?) to help the overall presentation. Either way it is a fun efficient listen IMO and worth the 6.90 a month in terms of getting dozens of shows a month that will equate to about .50 cents per show. Let me pre-say that this is just my personal opinion and of course I will be flamed by all that will question my intent in an effort to imply if you don't have 100 percent loyalty and express worship of the mothership then your intent is by definition nefarious.
wonder what Dumb Zone Producer pays? It's gotta be $75K+ considering all the complaints about how poorly Cumulus pays their support staff.
My favorite part of TF is how after everyone "got their money" because iHeart "pays a real salary" they go online to complain about how, unlike TT, they don't have any support staff. Ben or Skin actually publicly asked if anyone wanted to do some work for them -- for free.
Reminder, the people who left the ticket and went to the freak did not get paid better for the same job, they got paid better by going from producer, tickers, to hosting.
Anyone know why Elf is at training camp with the guys? Is he covering the Cowboys for a non-Ticket media, like Saad? Hard to see the Ticket paying for a Sunday morning host to be there.
I don't know anything about radio other than what I enjoy. I do know about working for corporations and in my experience, at the best of times, I consider working for a large corporation like keeping an apex predator as a pet. Sure it might cuddle up to you when you've had a bad day. Sure they are pretty to look at. Sure they can be sweet and lovable. The but is that second you forget that they are an apex predator you're going to be laying on the floor in a rapidly expanding pool of your own precious bodily fluids. I have no doubt that Cumulus has done plenty of things that the hosts, former or current, have a legitimate beef with. Cat and Bennet might care about D&J as people or any of the other hosts, cumulus doesn't give a tinkers damn about them.
Are the "crimes" of Cumulus exaggerated on those that have been on the receiving end, probably? We, humans, tend to do that. Has D&J dealt in a shady manner with the corporate overlords, possibly? But in my experience, the only thing that keeps a corporation in line is fear of litigation for breaking a law that they can't cover up. There might not be any good guys in the whole affiar.
My guess is that Elf was there for the fight and extended the trip. He is connected and has some irons in the fire for boxing events. Not sure what all they are.
Thanks for the bulleted list. I’m still so stuck on Jake or Dan saying they weren’t allowed to do what other hosts were doing? Like you mentioned, Gordo twitch stream is for charity? Does he not know this? Is he saying this to get ppl on his side? In facts, he’s the only guy with a podcast on the side that he was making money from.
This is awesome. Thank you! Wanted to hear him but zero desire to hear the hosts.
None of us are in their shoes. They made a decision they genuinely feel is best for them. Time will tell them if it was. None of us can ever define that for them. If they aren't doing anything in media in a year but are happy, we don't get to say that's a failure.
CJK5H, the only other Ticket personality I could think of that is monetizing content (other than aforementioned Gordo) would be Norm with his upcoming podcast, assuming he can generate revenue via ads, etc. Perhaps he meant other folks in Cumulus that might be doing it (Michelle Rodriguez, Hawkeye, etc)?
Monetizing isn't the problem as far as compliance with a noncompete is concerned. Something like donating proceeds to charity, or offering the content for free, doesn't cure any noncompetition problem there might be.
I don't know why certain extra-Ticket activities are OK but what Dan and Jake wanted wasn't OK.
One possibility is that the contract forms in effect for Norm, Gordon, Jake before he became a host, before Dan's final contract, did not unambiguously cover podcasts or similar arguably competitive activities.
Another likely element to Cumulus's reasoning is that Dan & Jake were recreating nearly the exact form of their Ticket show in the podcast.
Just don't know Culmulus's answer to the "other guys got to do what we want to do" defense, although I've tried to find out.
I would think scope could be relevant. A sporadic/once a week at best twitch stream outside of live ticket broadcasting doesn't seem comparable to 4-6 hours a week with the same hosting team basically the same content. Who gets the best material, the pod or the radio?
That’s kind of my guess too. Dan and Jake basically wanted to do an after hours podcast of the show they do on air. The other ventures, jakes included, deviated away enough from what he did on air.
Certainly hope that anyone who reads the above, or listens to the podcast - don't immediately accept everything Jake says as truth, or forget the possibility he's leaving out important details (because they ruin his narrative).
IrishLaddy: This is not all on Cat. He reports to Dan Bennett and Bennett reports to the Cumulus front office. Cat does not write or sign contracts. There is a chain of command and if anything, he is the middleman here. He is the head cat wrangler, Bennett is the ranch manager, and Cumulus owns the ranch.
you have misinterpreted my statement. The show of Dan and Jake only exists because of the company, station and the program director that created the idea to put them together ( and might remind everyone - while also catching a shipload of crap about it too).
If SD+J think that their contract with Cumulus clearly allows this podcast, as they now claim, why weren't they attempting to do it all along? And why bargain for it specifically in the new deal?
If the answer is "because the noncomp only kicks in after expiration/termination," I think the answer is "no, that's probably not correct"; noncompetes generally run during the term of the contract and for the so-called "noncompete period" (six months here) thereafter.
Well TDZ pod that most seem to hate here in defense of the infallible mothership is now over 300k/year. It is pretty clear at a minimum will secure a 6 income figure from this enterprise.
I think there’s a couple of ways to answer why not before and why push for it in the new deal. The slow burn realization over recent times that podcasting can be profitable - The Ringer selling for what it did, the rise of Barstool and Pat McAfee. As they said on Monday, their buddy Akash has been in their ear encouraging them on this. And why insist on it in the new deal? Because it’s a new deal and they believed they had leverage. Norm just left, record ratings, they were unified in wanting it and willing to walk without it. Most important they wanted it clear in the legal docs that they owned and could monetize everything outside of 12-3 so that Cumulus couldn’t pull the rug out from them. But Cumulus didn’t blink and it went down like it has.
I am unsure why we’re are supposed to suspect that D&J are lying about their departure or the reasons for it. It seems to me that many people here want to create a false binary of a good side and a bad side in all this. I doubt that’s the case with D&J or the other ticket folks that left to go elsewhere. None of us know what actually went down or if some here do they have not offered any tangible documentable proof of that information. I take P-Man and C minis at their word they have sources but those sources but it seems that all those sources are on the corporate side of this. I also know that they have way better understanding of the legal intricacies involved than I do. Still all that said I don’t see why I’m supposed to suspect everything that anyone who left TT has said as being disingenuous our untruthful but accept what is coming out of a corporation as truth. I’m way more inclined to believe and individual than a corporation. The number of people who have left in the last few years make me more than a little suspicious of just what Cumulus is actually thinking, doing or how they treat their people.
This is coming from someone that does not now more ever has liked Dan or at least his radio persona. I haven’t listened to THZ n over a year so their departure doesn’t change anything for me. I just find this whole need to have a good guy and bad guy to be puzzling
But there's nothing much coming out of Cumulus at all -- no communications to evaluate. My "sources," such as they are (and they are few) are for the most part not Cumulus partisans.
Almost all we know is:
(1) The timing of The Freak guys' departures and their sometimes conflicting accounts of how that all went down.
(2) The Richie Whitt article.
(3) Dan & Jake's actual demeanor since departing, which I would describe as "coy."
(4) Their (mostly Jake's) now-you-see-it-now-you-don't rants on Cumulus's wrongdoing, and some of the factual material (the cease-and-desist demand, for example) they've publicized.
Other than the Dan Bennett memo, which wasn't too informative and which really hasn't been denied by SD+J that I can recall, Cumulus hasn't reported anything that one can believe or disbelieve. And unlike SD and especially J, the people who work there have kept their yaps shut.
The result is that we are evaluating the Freak/SD+J "side" of things based on what feels right to us based on (1) comparing what's public knowledge from Freak/SD+J based our own work experience, (2) our evaluation of the Freak/DJ+J utterances on their face, and (3) nothing. Some believe it, some don't.
Myself: As I said above, I hope they succeed as a business proposition, and they seem well on their way to doing so. If Cumulus doesn't pull the trigger on a lawsuit real soon -- and I mean within the next very, very few days -- they'll sure look right about the noncompete. We can't evaluate the right-to-match claim unless we have more information, or unless they hit the ground at The Freak after the six months is up.
Technical Patreon question: When you sign up for a month or a year, does your subscription automatically renew, or do you have to affirmatively choose to continue to subscribe?
They won't be able to allow an annual sub until they've been on for some predetermined amount of time (idk the length). But the sign up does auto renew.
Plainsman, Your Patreon, once signed up will roll over month to month until you chose to end it or your card expires etc. It is a month to month proposition.
B#: I take it you are the arbiter of perceived impropriety since you react to my running tally of Patreon subscribers. Is the D&J not the subject of these recent threads? I find it interesting that they seem to be succeeding past the expectations of many. No it's not personal. I don't know either D&J or are related in any way. Based on your overreactions to my posts I am beginning to become suspicious of your behavior. Are you related to the Ticket guys? When did you stop beating your wife?
Addressing Tricky Kid's summary of Jake on the Mom game podcast today, I don't think it helps TDZ side of things. TK's bullet 1. Telling the other side of a legal demanded that you cease and desist doing something that you refuse to cease or desist gives them ammunition in the legal fight. "Look your Honor, this is why we need a TRO, we laid out our side and they told us to pound sand'. Their right to tell Cumulus that, but if Cumulus has a case at all the attitude doesn't help, it hurts. And I've got a source (Cumulus DJ, different market) that says his non compete specifically mentions podcasts as a competitive medium.
TK's2-3. If podcasts are considered a competitive medium, admitting that you want to do a free daily show is an admission that you want to go into competition with your former employer. While it is currently a hybrid (the 1 free then 3 via patreon) you're admitting your goal to try to draw away your employers listeners, which helps Cumulus prove damages.
TK's4- This may be about a non-compete, it may also be about IP. Anything TDZ created as Cumulus employees (including the name "The Dumb Zone") is Cumulus IP, not D&J IP. This sounds like they were creating an IP catch 22. They can't own something they create as Cumulus employees, and therefore don't have the right to monetize it. 4A- I've seen where IJB does the occasional live on-site podcast recording, basically a podcast remote. If their idea was to do something similar, TDZ is using Cumulus IP (TDZ recording a show) at a off-site location (is the location a cumulus client) and retaining that revenue? I can see why Cumulus wouldn't go for something like that. (Cont in next post) C
TK 4B- The vast majority of radio listening is M-F 6a-7p. Gordo's twitch stream is outside that harbor. All the rest of the ticket guys side projects aren't direct competition - Bob's substack, Jake's D Magazine or Athletic writings, Norm's old track appearances, Sirois when he did marble races on twitch, or the Collectible Show, none of then are direct, head-to-head competition during prime hours. Without knowing exactly what D&J were proposing to monetize, it's hard to see who is right and who is wrong. But lets say they wanted to do a bonus hour that they would own, recorded from 330-430 after their show and posted soon after. Again, it's Cumulus's IP and work product that TDZ want to monetize for their own benefit, in competition with the Hardline. Now if they wanted to do a movie podcast at night, have at it. Youtube videos on flower arrangement, go right ahead. An hour of sports talk in competition with their own product? That's a no from me dawg. TK's5- Good for them if they were trying to get more money for their people. How does walking away and being replaced help Blake or Birmingham pay his bills? TK's6- OOh, they made an emotional appeal. Jake, you described this as your dream job, you didn't think they'd throw that in your face? C
TK's 9- 8 hours a day with lawyers? Even at a discount rate, you're burning a couple of grand a day doing that. And that's just responding to the C&D. IF Cumulus sues, (and I think they have to, the Ticket is one of their marquee stations), they're not going to let high profile jocks walk away and go into competition with them without a fight. Now your litigation expenses have skyrocketed. Briefings, depositions, research, meetings, all at a couple hundred bucks per lawyer, and it's not going to be just one lawyer, you're also paying for the associates, the paralegals, etc. And if you lose (and if your contract says a podcast is competition, you're going to lose) you're probably liable for Cumulus's lawyers fees also. And if Cumulus gets a TRO, that Patreon cash flow stops and it's all out of pocket. TK's10- Good that Jake's wife has a good job. I was on the fringes of a court case once as a witness. for my deposition, there were 4 lawyers (2 ea side) a couple of paralegals, and a court reporter. In making small talk with them on a break, we guesstimated it was costing about 1500 per hour for all those people. Will Jake's wife income cover legal bills like that? C
I’m surprised that Atlanta hasn’t brought the TRO yet. If they believe their non-compete is ironclad, every dumb zone podcast published pushes more into a course of dealing situation to D&J’s benefit. I would assume CUME would bring suit in Dallas County district court. A quick records search of key names returns nothing this evening.
Separately, I’d bet $5 that thru either networking or P1 loyalty that D&J won’t get crushed by legal fees.
Curious- how do you think networking would help them? I don’t see Ticket employees throwing money into the hat to pay TDZ to fight their employer. Same for other jocks at other stations. Rhyner, Sirois et al may want to see Cumulus lose, are they willing to cough up let’s say 5k to help? I’d want to see how good the Cumulus case looks. If podcasting is specifically named as a competing medium, THZ is hoping for the Hail Mary of getting non competes thrown out. Which may happen, no reason why their case would be a good test case to win. C
There are plenty of Cruz in Aledo dorks out there. Enough with law degrees that will offer discounted legal assistance. Not saying any of that can help their legal standing, but from a monetary standpoint, i don’t think they’ll be bled dry. I’ll continue to bet $5 on it
There are very few that I think want Dan and Jake to fail. Some wish they stayed at the ticket, sure. Then there are some that want Dan and Jake to conquer the world and kill the ticket in the process. I find it odd. The hangzone was a good part of the ticket but….
wow - That MomGamePod is...Rough. The part i made it thru, and what was quoted previously... Jake on what was the main reason- "Audio and Video content" - Cumulus not on board. - Rebuttal - "Other People Do This".
This has to be a reference to Gordo, right?
As much as I enjoyed Jakes Cowboys takes day after game, I'll gladly enjoy MM w Donny, and Mino and Monty's.
Even if it is, is Gordon’s twitch stream competition for listeners? Is the content similar to a regular Musers show? The more that leaks out of the mothership, the more I’m convinced Dan and Jake wanted to go into direct, head to head competition with the people paying them, and expected to monetize that competition AND retain that revenue for themselves. Talk about a non-starter. C
Please start deleting OU812's comments. This person is an obvious troll who creates straw man after straw man. No one. Not one single commment has wished Dan and Jake ill. Yes, there are many of us that are skeptical that this will succeed in the long run, no doubt. But not one comment, period, has wished failure on them. You have been conducting a monologue with yourself for the past few days. One can wish DnJ well on their endeavor and simultaneously hold the belief that their move was ill advised, has a very good chance at not working out, might be in some serious legal trouble, and might not be portraying the situation in a wholly truthful way. Are these concepts too difficult to understand? I say no. But, from your now days worth of incessant bullsh, I'd say it might be the case for you, OU812. So either engage others honestly and in the spirit of fruitful discourse, or go back to whatever platform that rewards your behavior.
I come here for a more tempered discussion on ticket happenings, so I appreciate the community's efforts to keep the tone of conversation here what its historically been.
One week into the new afternoon shows I have not changed my opinion from my initial thoughts. Donnie and Matt are fine. I still think Matt is in on the generic side but it's a solid show. I do find Blake more enjoyable paired with Donnie and Matt than with Dan where I felt he was caught in a loop of trying to out passive agressive Dan. It is without question a better show than what B&S put out there and probably superior to K&C though I think that gap isn't a large one at least for sports stuff. I will most likely listen to it more, especially once football season gets up and rolling. That said I don't think I'll be a five days a week listener.
Sean and Mino. I enjoy what Mino brings I still find Sean boring. It's hard to judge the show off this week as I think it will have a very different feel when Monty comes on board next week. Right now this show ranks behind listening to podcasts unless there's a breaking sports news story I want to get info on.
Dumb guy question here, but what is the limitation when it comes to non-competes, is it limited to audio formats or is it just general broadcasting? If somehow Dan ended up working for WFAA on a weekly talk show, does that violate the NC?
I just struggle to see the case Cumulus has here under the current situation.
Plainsman linked a case in the previous thread where it didn’t cover streaming, but that case was a decade old. I’ve got a buddy in a smaller cumulus market whose non compete covers radio, streaming, video, audio, podcasts, you name it. Cumulus probably wouldn’t be sending a cease and desist order if they didn’t feel like they had a case. And as Plainsman mentioned elsewhere, the way these are generally structured is there’s a dollar amount included on top of the salary as consideration of the non compete. So (made up numbers) We agree to pay you 100k per year in salary. As an incentive and in consideration of clause (whatever) if this contract, aka the non compete clause, we agree to pay you an additional 25k for your agreement to not compete in (market) for 6 months from end of employment in (all the mediums listed above)
Some non competes are not being upheld, because it makes no competitive sense to stop a hooters girl from going to twin peaks. But if Dan and Jake signed a valid contract, with monetary consideration, to not compete, and they do a podcast, they’re facing a lawsuit. C
Get busy for a few days at work and suddenly I have a pile of reading to do. I better leave the drinking of adult beverages until after I plow through this.
Regarding Gordo monetizing content outside of his Ticket gig, Dear Jake, you ain’t Gordo. The new shows are fine. Mino and Monty will be good, I do like the level of Ranger knowledge between Sean and Mino. That might change when the Rangers lose 100 games again. Donnie and Matt are as dry as Donnie and Norm were so no big change there.
Several Confessors have requested OU812's deletion.
I have gone back and read all OU812's comments. They support SD&J. His calculations of the revenue more or less match mine. His tone is acceptable. There's nothing there delete-worthy to date.
Yes, this is a Ticket fan site, but reasonable commentary in support of competitors, including The Freak and SD+J, has always been permitted.
The line between trolling and disagreement may be hard to discern, but OU812 has not crossed it.
I think their total would have been helped with an extended dry-dock/fill in situation (or really a continuation of the fill in Donnie 10-3 situation). As is, their resignation was 7/18 per the leaked email, and your leader, Western Hemisphere Catlin ( that right?) had 2 replacement shows spooled up and ready to roll in less than 2 weeks. Advantage to hiring from within? But also having regular shows on gives people less incentive to seek out the old status quo. Now comes the subscriber count death watch. Is it rising, falling, flat? C
Maybe something, maybe nothing, but TDZ did not publish a pod yesterday. Perhaps they are ceasing and desisting. Perhaps it's a day off (they said they'd do four per week). Just found it...odd...given the timing and the legal rumors. Also nothing on their twitters that I saw that might explain the lack of post. Maybe Jake's appearance on the mom game was enough for a Thursday? If they don't post one this evening I would get a little more curious and think maybe they're ceasing and desisting.
I will say, it has occurred to me that negotiations may not be entirely over between the parties. I don't see how either Smilin' Dan or Jake can go back, but maybe there's some room for face-saving on both sides.
I have two reasons for thinking this might be a possiblity:
(1) If SD+J have decided not to cease and desist and to wait for a lawsuit, there is no reason for them to be spending hours and hours a day on the phone with lawyers. If, however, offers are being exchanged and evaluated, then yes. And iHeart itself may be involved.
(2) Cumulus hasn't sued yet when the correct strategy (if they feel the've got a winner) would have been to sue immediately.
I also found it strange they didn't post a pod last night. As some have pointed out I am a big fan of what they are doing on TDZ but I will also readily admit the midday shows are also ok. I think it's ok if I like both correct? I especially like Mino and what he brings. He is an emerging talent.
Why would it be strange? There are supposed to be 1 free plus 3 each week. That means there will be one weekday every week with no release. They also mentioned Dan will be traveling and things might be off in the next week or so
@Surly: Dan grinned and joked his way through that sad video they posted, while Jake looked . . . unwell and unhappy and barely tolerant of Dan's "isn't this fun?" attitude.
Strange because they released pods on the 31st, 1st and 2nd. Nothing on the 3rd, and so far nothing on the 4th. So that's 1 free plus 2. That’s not what they promised me as a subscriber, bit more importantly, it doesn’t rhyme like 1 free then three. Are they late? Or are they either ceasing or resisting? Only the shadow knows (evil laugh) C
So you're OK with this?: " Based on your overreactions to my posts I am beginning to become suspicious of your behavior. Are you related to the Ticket guys? When did you stop beating your wife?" --OU812 August, 3 2023 7:57PM
Someone doesn't just accuse, no, they go so far as to state, definitively another physically assaults their spouse....but you take no issue.
"I have gone back and read all OU812's comments. [...] His tone is acceptable. There's nothing there delete-worthy to date." --Plainsman August 4 2023 12:15PM
If you're cool with this, then exactly how does this site differ from any other cesspool on the web?
My goodness you have to know I was making a point. I was accused of either being a family member or some other nefarious actor. I was responding to the fact that I didn't appreciate being accused of being something I wasn't (kind of like the old tactic of asking when they stopped beating the wife)
I will herewith retract that statement and just reiterate without the histrionics that I am not related in any way to D&J nor do I benefit in anyway from their success nor am I friends with anyone related to them. Final disclaimer: I don't think or have any reason to believe anyone here beats their wife!
No, but it doesn't surprise me in the least, FiF. She seems to have been treading, and continues to tread, water from the jump.
Speaking of TF. Has anyone bothered listening to the am drive version of TDB? I have to admit that it isn't bad. Now you can only go up from what preceded it, but it must be said that Sirois seems to be rejuvenated and Danny gives off the vibe that he finally has a partner and is no longer babysitting. The pm drive version of TSE, well that's another story entirely. Cavanaugh either needs to be doing hardcore sports talk or not be on-air at all, period. Please see the above regarding Julie. Rhyner? Not sure what to say at this point other than he's once again stealing from the company store (taking a paycheck for services not rendered). Back to TDB 2.0. No, they're not a threat to DnM. But I'll say this: if they keep this up and keep improving, they will absolutely be an alternative listen when either DnM are on commercial break or during a segment you don't particularly enjoy (looking at you, Peter King and most of the college football expert guests). Who knows, they might even establish a proprietary segment or two of their own that becomes a must-tune in at X time on Y day. Crazier things have happened, you know.
@OU812 Good on you for owning the bitch move and apologizing. Others ought to follow your example. Let's get MTC back to its sweetspot.
I have always enjoyed Danny Balis. I really wish they would have just made him a host in the fashion of Dave Lane. Would have been awesome to have a mid day show reuniting of the Orphanage + Donny.
Also there is a female poster on the Reddit site who looks like junior killer with long hair. I invite her to join the skate around and play goalie. The cat from Maine Julie can’t make it.
@KDF Just checked out the reddit thread you mentioned. Holy cow is ex-Ticket employee Sam Hale an arsonist! He doused the place with gas, lit the match, tossed it over his shoulder, just skipped on out of there. I've said it before and I'll say it again, if I'm the admin for that page, I am deleting a shit ton and banning even more. The libel being layed down there about MM is incredible.
I saw the comment about MM saying he sent unsolicited d-picks over the air today. No one as yet has given any reference as to when it occurred. No approximate time, segment, or URl (usually someone is Johnny on the Spot with that stuff). There's also a couple of threads about MM and Blake tension, as well as MM and Donnie tension. Those mean very little. At least right now. If Donnie and MM tension is obvious this time next week, yeah, it's probably a legit concern. But man if the d-pick statement is real, I don't know. Monty might be on the Varsity squad real soon (either with Donnie or WiP Proper and Sean with Donnie).
@Gunnar Sorta funny it at first, but you've jumped the shark. A new angle, maybe?
@ The Way -- I had the Invasion on in the bg, I believe Corby had joined them, this would've been after Noon. I don't think he specifically said he sent pics out..i think when the D Pick topic was happening MM asked Donny if he's ever taken a picture of 'It'. That alone will probably draw an office sit-down I'd imagine, all things considered.
So the TDZ boys have completed two weeks worth of pods. If cumulus really thinks they have an ironclad non-compete, what the crap are they waiting on? Based on the negotiations and what D&J were asking for, they could’ve filed for a TRO the day they resigned. It was clear as day that D&J would be podcasting. Very weird they have haven’t acted yet.
That whole conversation came up in the 12:30 news at 12:50 segment. They were talking about a college player who has since transferred to Ole Miss after being kicked off the team for taking pics of teammates and posting them on Only Fans. Donny was getting kind of uncomfortable with before the break came.
@BookBook Won't be surprised in the least if he never said he had sent such a photo, as it's being portrayed on reddit. You might be right about getting read the riot act. That's a subject matter that should never be brought up unless it's news related. For example, the Brett Favre d pic scandal. Or unless it's a total and obvious joke that's aimed at making fun of someone who's done such a thing. From the sound of it, Matt has yet again failed to listen to that inner voice that says, "STOP!, this is a bad idea." Perhaps his inner voice only encourages, rather than discourages. His track record seems to indicate it. Obviously I don't know the guy and I'm not going cast aspersions on him. Though I will say he seems to me like someone who really, REALLY craves attention and will do and say anything to get it. Including revealing personal info that he shouldn't. That no attention is bad attention, and bad attention can be spun into good.
I think Surly is right about Blake. My guess is he's awaiting word from DnJ, and at that hour he'll bolt to TDZ. Surely TC will be in the mix, if he already isn't.
I subbed and have listened to every DZ pod. I'll most likely not renew in September. I probably won't listen again for quite a while and will resub in mid October or November. I want to let them find their footing. At least I'm hoping what I've heard so far isn't their footing and the show will transform into something funny, interesting and informative. Right now it's jagged and disjointed. The only thing somewhat interesting is the sometimes mixed message about TT and all people and things TT related. The novelty of that's already wearing thin. Right now TDZ is reminiscent of the first week and change of TF. That is, a lot of inside baseball on TT. Difference is Dan and Jake aren't constantly patting themselves on the back. Past TT stuff, it's mostly drug use and sex talk and a whole bunch of bogging. I don't care about Dan's sex life or hearing about masturbation. I mean, whoa, how edgy. Not. Boring and it shows a lack of substance and imagination. I listened to The Stern Show in its heyday. Been there, done that. If they continue on this path, they might end up like Rhyner: a caricature of everything you once publicly disdained, made fun of. So I'm hoping that once these turbulent times settle down a bit, so too will Dan and Jake. I'll revisit them down the road, for sure. Because I firmly believe these two have the goods. I'm hoping they don't lose or have even lost the plot. That'd be a damn shame.
I'll eventually get around to buying access. As to all the lawsuits and stuff. Well, that might take a while. After six months what then? They aren't exactly ceasing or desisting right now. Guess we will see.
is this your deduction of events, or are you reporting something you claim to have 1st hand knowledge of? I ask because it appears out of order and the parts certain players played are incorrect, IIRC.
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ReplyDeleteI know it’s long. I know you don’t have time to read it. I know you don’t like long posts and it makes you not like me. Nothing I can do about it except not write so much. But there’s an angle here that, in my judgment, makes things somewhat more dire for Smilin’ Dan and Jake, and it needs some unpacking and pre-saying.
So crack open a Pacifico – you may need to have another one cooling – and sit back for a bit. I think you will find this interesting.
Most of what follows must necessarily be speculative and will quite probably turn out to be wrong, perhaps ludicrously wrong.
PART 1
The Confessor Formerly Known as C (now C Minus) mentioned something the other day that had also come to my attention. I believe it is of considerable importance. I’d like to introduce it here and pass along some other thoughts based on my experience in this area of the law.
We’ve been focusing on the covenants not to compete in Jake’s and Smilin’ Dan’s contracts. We don’t know how broad they purport to be, but there seems little doubt they exist. They probably last six months; they probably cover Dallas metro, but in this day and age of nationwide broadcasting of even local events, it is not beyond imagining that they may attempt to prohibit any competition within the United States; if you’re sitting in Cleveland, you can draw listeners from DFW as easily as if you were sitting here. We don’t know if they’re broad enough to cover podcasting; it seems likely that they are, and likely also (to me) that in 2023 a court would regard a podcast as competitive with a station that also has numerous podcast properties. The noncompete is a formidable weapon in an employer’s attempts to protect its intellectual property and its revenue. Texas courts routinely enforce them, but sometimes throw them out or modify them. No idea what will happen here.
[PS: There is chatter about whether the lads “had to resign.” Answer: Yes, because it was in THEIR interest to do so. They needed a stake in the ground from which to begin measuring the time for their six-month noncompetition covenant. If things were just dawdling along and they were getting paid during negotiations, then that period hadn’t started; after contract expiration, if they were still on the payroll they were at-will employees. They needed that clock to start ticking, and resignation did it.]
I want to focus on two other things that one routinely finds in radio employment contracts, according to my sources and research. I’ll cover the least important one first:
The first thing is:
Non-Disparagement. Their contracts quite likely contained mutual “non-disparagement” clauses – neither party can say anything bad about the other after expiration or termination. I think Cumulus has done a pretty good job of keeping its hosts from unloading on Smilin’ Dan and Jake. Can we say that SD + J’s lawyers have banged on SD+J to keep their yap shuts about their own treatment at The Ticket, or other critical reports? I haven’t been listening to the podcasts, so I don’t know. I didn’t hear anything sufficiently disparaging in their scruddy video that would have given me shpilkes in my genechtagazoink if I were their lawyers. So this is probably not a big deal, but breach of this clause would probably be alleged if Cumulus were to sue.
I should mention that I received a communication from a Dallas radio guy (not a Ticket employee) who writes that he is “alarmed” at a recent Dumb Zone podcast in which, he claims, the lads issued statements regarding certain Ticket policies that are “100% disprovable.” Whether this is accurate, I have no way of knowing. But it’s what’s “out there” in the community, and, if so, it could be judged violative of the non-disparagement clause. (Again – if there is one.) If I were advising SD+J, I’d be yelling at them to SHUT TF UP ABOUT THE TICKET.
PART 2
ReplyDeleteThe second thing is the much bigger deal.
“Right to Match,” Sometimes Called a “Right of First Refusal.” It is very likely that, in addition to the noncompete, Smilin’ Dan and Jake have in their contracts something called a “right to match,” but what a corporate warhorse like me would call a “right of first refusal.” (If they don’t, them much of what follows is pointless.) This means that if a party to a contract containing such a clause receives an offer from a third party, the party must disclose it to the other side and allow them to match or exceed that offer. (Whether the offer recipient must accept the employer’s equal or better offer would depend on the language of the contract, which, I never tire of saying, we don’t know.) The offer from the third party (iHeart, in the case we’re imagining) must be bona fide (not a sham used to pry better terms out of the employer), and must be sufficiently detailed to allow the other contracting party to evaluate it. This requirement would most likely last to the end of the noncompete period.
What does this mean for SD+J’s situation?
If they haven’t had any offer from iHeart, no deal to go there when the noncompete expires, it doesn’t mean anything.
If, however, they have engaged in negotiations with iHeart – which pretty much means that iHeart had to have made some kind of offer at some time, even if it was a counteroffer – then it means one helluva lot. SD+J would have been required to disclose it to The Ticket.
And remember: This obligation to disclose to Cumulus does NOT require a completed deal, not even a handshake – just a bona fide offer from the third party.
The first thing that occurs to me is that this explains SD+J’s somewhat clumsy and noncredible tap-dancing about their future plans. If they have a reasonably concrete deal waiting for them with The Freak, then they have violated their employment agreements by not disclosing it and giving Cumulus an opportunity to match EVEN IF CUMULUS HAS REJECTED A SIMILAR COUINTEROFFER FROM THE EMPLOYEE DURING THE NEGOTIATIONS. That is: It is not a defense to say “we didn’t disclose because Cumulus was never going to give us the terms that iHeart was offering.” If Cumulus had known iHeart had offered to give SD+J whatever they were going give them, their answer might have been different. More on this below.
It gets worse if SD+J were playing footsie with iHeart before they left. The general feeling seems to be that they do have such a deal – again, speculation. But that video – that shoulder-shrugging about what they were going to do – was pretty smug, at least on Dan’s smilin’ part. Most Confessors seem to think they slide right into a Freak host spot, PM drive, perhaps, when their noncompete expires, which, if true, would suggest that there was an offer on the table from iHeart sufficiently concrete that it should have been disclosed to Cumulus.
ALERT: Inferential leap approaching.
PART 3
ReplyDeleteSo we ask: Is there evidence of such footsie?
For a possible answer, we turn to that Dallas sports journalism gadfly and scamp Richie Whitt.
Whitt seems to have known that SD+J were planning to decamp to The Freak months ago.
If that happens, it strongly suggests that SD+J had an offer from iHeart of sufficient firmness that it had to be disclosed. We won’t know how likely that is unless, as Whitt tipped, they do end up at The Freak after the six months has passed.
If they do end up at The Freak, that is strong evidence that SD+J breached their right-to-match clause, and that raises the possibility of a nightmare scenario for our lads.
The nightmare is: (1) Cumulus gets an injunction against Smilin’ Dan + Jake on the noncompete. The Dumb Zone is instantly turned into the Silent Zone as they’re removed from Patreon for the noncompete period, which will start not with their resignation, but from the date that the injunction is issued – Cumulus gets its full six months of noncompetition. (2) If, at the conclusion of that period, they try to go to work for iHeart, Cumulus sues them again for breach of their right-to-match clause, seeking another injunction and possibly damages. Now, Cumulus could make this a part of the initial lawsuit if they have good current evidence that SD+J and iHeart have made a deal. And, of course, that evidence could emerge during discovery in the lawsuit.
What makes the discovery of such footsie pretty certain – if it took place – is the fact that Cumulus would likely sue iHeart along with SD+J. iHeart absolutely knew the terms of SD+J’s contracts if they spoke to them at all. If they assisted SD+J in breaching their contracts in any way – including, possibly, agreeing to pay their legal fees if they got sued – they could be liable for the tort of “intentional interference with contractual relations,” and Cumulus would probably throw in a conspiracy count as well (which doesn’t really add much to the lawsuit, but it sounds so evil).
Discovery in the lawsuit would require iHeart to disclose ALL communications between SD+J and iHeart (including Freak hosts) AND all INTERNAL communications relating to a potential relationship. And that would include communications with Freak hosts. That alone would be a huge deal, and might not reflect favorably on our lads. And if there was an undisclosed offer, Cumulus would have a strong case, with relief that would be devastating to the careers of Dan and Jake – including, possibly, an injunction against our lads going to work for iHeart. And of course, those galactic legal fees in the meantime.
Will Cumulus sue SD+J and seek a temporary/permanent injunction and damages, throwing iHeart in for good measure, for breach of the covenant not to compete and the right-to-match clause?
ReplyDeleteIt depends on a lot of things:
(1) How mad is Cumulus? Pretty mad, I’ve heard. It is apparently beginning to dawn on even some of the non-executive employees over there that, in all likelihood, SD+J did not deal with them in good faith. For what it’s worth (nothing), SD+J do not seem to be faring well reputationally among industry professionals, either.
(2) How strong is the case for an injunction kicking them off a podcast for six months? It didn’t work in the Burke case C Minus and I have described, but that was in 2016. Cumulus lost because they couldn’t show competition between the new podcast and what the court called “the radio station.” The Ticket is more than a “radio station” now, and I expect both that the noncompetes were tightened up to take account of the new digital world, and that Cumulus trial lawyers would have learned some lessons. One way a noncompete might broaden its reach would be to have the employee acknowledge that a particular modality (i.e., podcast) would be competitive; another would be to define competition as any modality that the employer used at the time of the employee’s separation.
(3) How strong is the case for an injunction and damages for breach of the right-to-match clause? This is harder for observers to judge because it depends on communications between the parties to which we aren’t privy. Also, that claim would have to establish an “offer” by iHeart that was sufficiently concrete to have been disclosed, which can be a difficult thing to prove. I suppose a nod and a wink might not be solid enough, but no one is thinking that iHeart said “hey, keep us posted on your plans when your noncompete expires.” Although the podcast gig may work out without a broadcast platform (so far so good, it seems), it’s very hard to imagine that our lads would have departed without some fairly firm agreements as to their return to broadcasting.
(4) If you were a Ticket host and you saw Jake and Dan making a success of The Dumb Zone without a big company looking over their shoulder, and you saw Cumulus not attempting to enforce a noncompete, what would you think? Cumulus would seem to be strongly incentivized to come down hard on our lads, if for no other reason, as an object lesson. And since SD+J seem not to be in the best odor among Ticket stalwarts right now, that might not be seen as excessively heavy-handed or terroristic.
And I gather Cumulus has sent a cease-and-desist notice (or “demand”; don’t call it an “order”) to the lads. Which almost certainly means a lawsuit is coming.
PART 5
ReplyDeleteYou can skip this part. Just some impressions on my part.
Did SD+J “do anything wrong”?
They certainly did not do anything wrong by considering alternative modalities to display their talents after their contracts expired, even if that might be considered competitive. It is not violative of a covenant not to compete to plan for future competition.
They did not do anything wrong by not disclosing their consideration of such plans.
They didn’t even do anything wrong by planning to string Cumulus along as a negotiating strategy. It is not illegal or violative of any contract – without more – for them not to have negotiated in good faith.
Now: if they’re competing with the podcast and violating the contract, that’s wrong. And if there’s a “right to match” that they and iHeart ignored, and matters are firm enough to have been disclosable and they didn’t, then that’s wrong. Purely legal matters that depend on comparing contract definitions and language to SD+J’s actual conduct. That’s what I’ve been talking about above.
PART 6
ReplyDeleteBut now we come to something that is both not very wrong, and really wrong:
Lying.
If they lied to Cumulus and their colleagues about their plans, well, that’s not NECESSARILY a breach of contract or a breach of any law in their position as employees. (It would be wrong to lie about something affecting the operation of the station, but we’re talking about lying about their plans at a time when they’re under no obligation to the station.) They are not fiduciaries for Cumulus or The Ticket.
HOWEVER: lying can be wrong if it amounts to fraud, if the lie was meant to induce the party to whom the lie was told to do something, or to refrain from doing something. If Smilin’ Dan + Jake said “we don’t have a deal with iHeart” and they did and failed to disclose it, then Cumulus was fraudulently deprived of its contractual right to match that offer. A variation of this would be: “Yes, we have an offer, and it’s this,” and they report an iHeart offer that is way more than iHeart actually proposed, knowing that it would not be acceptable to Cumulus. (That is: if iHeart made an offer, the lads disclosed it, and Cumulus turns it down, then the actual iHeart deal must be no worse than the terms disclosed to Cumulus. Got that? iHeart has to come through with employment of the lads that is at least as good as the terms reported to Cumulus.)
Lying is also wrong as a strategy, because lies become evidence in court and evidence of an awareness of liability and poor character, which a court may take into account in deciding whether to grant “equitable” (i.e., non-monetary, injunctive) relief. In other words, it’s wrong – dumb species of wrong – as an evidentiary matter.
PART 7
ReplyDeleteYou can skip this part, too.
The foregoing may seem like I’m coming down hard on SD+J. I don’t mean to. I liked their show, I thought it took a huge leap when Jake was paired with Dan, the bog was easier to slog through. I’ll miss it.
I wish them success – not necessarily lawsuit success, but success in the industry. I’ve bet on myself before, and it’s a scary thing. Seems like they can at least make a living doing podcasts, and may be a real darned good one. I think that’s great. The fact that many of us have a sentimental attachment to The Ticket should not affect our acknowledgment that hosts we love and think of as friends have the right to make a better living than the one Cumulus is prepared to offer.
I am fearful, however, that they may have gone about it in a cavalier, chip-on-shoulder, ignorant, and possibly ill-advised fashion that – in the short-to-medium run, at least – will cause their ventures to fail and quite possibly damage their careers. They may sneer at contractual terms they don’t like, but the Texas legislature and courts do like them, and enforce them.
Can a dispute like this be settled?
Of course.
But I’ve gone on too long already.
END OF ALL PARTS
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Does any of that screed contain the tidbit you promised like a week ago?
ReplyDeleteThat was a great deep-dive analysis Plainsman. Thanks.
ReplyDelete@Surly: Yes. The information regarding the "right to match."
ReplyDeleteI considered that extremely significant, if, in fact, the contract contains such a clause. I have received some information (although not from a Ticket source) that employment agreements for talent in the industry do contain such clauses, and I had to guess at what they looked like. I'm very familiar with this type of clause in other types of contracts.
Remember that "discovery" is not one-sided so Cumulus may have their dirty laundry out in public space too. They will not be willing do that as the salary info wouldn't just impact their Dallas shops.
ReplyDelete@Out of the Demo: Quite so.
ReplyDeleteBut salary info isn't privileged, and that info is already known to Jake and Dan. I suspicion that there aren't a lot of secrets about compensation at the host level, including within the industry.
But you're certainly right that Cumulus will need to disclose what they have about the negotiations. Guessing it won't reflect that poorly on it.
Also, it’s Cumulus’s highest billing station in their biggest cluster in their largest market. I’m not sure that finding out what tier 1 talent in Dallas makes is going to help some dude in (googles cumulus markets) Fort Smith Arkansas or Muncie Indiana as he renegotiates.
DeleteC
@Tricky Kid: Thanks, Tricky. Hope you enjoyed your Pacifico.
ReplyDeletePlainsman- I’ve heard the right if refusal thing also, in relation to Danny Balis. If you believe their story, his non compete ended on Monday, Rhyner calls him on Tuesday, he interviews on weds, hired by Friday and started the next Monday. I’m sorry, I find it hard to believe anything involving a corporate HR department happened thst fast. But that’s the story they need to tell to avoid the right of first refusal clause. The Freakers were very squillery at the time about who had talked to Danny when. At one point Rhyner said Danny was in it from the beginning, only to walk that back later.
ReplyDeleteC
Rhyner's daughter also tweeted then deleted something like "Danny is definitely going to be there" long before Danny's six months had expired.
DeleteYOW, I left out a part, and it contains a sexy prediction! Here it is:
ReplyDeletePART 4.5
One more point about a lawsuit:
If Cumulus is going to sue to enforce the noncompete, they’d better farking well get to doing it. The longer they wait, the more it looks like they’re really not suffering any harm from The Dumb Zone. Delay in suing for injunctive relief is a defense to a claim for an injunction.
To get a temporary injunction in Texas – that is, one that takes place right away – I mean instantly, same date as the first hearing, not after a protracted trial -- Cumulus will need to show (1) that it is likely to prevail on the underlying breach of contract or tort action, and a (2) probable, (3) imminent, and (4) irreparable injury if the injunction is not granted. (“Irreparable” means “money isn’t good enough.”) This is a tough standard to meet, and it only gets tougher if the employer doesn’t rush in pretty promptly upon receiving evidence of breach. The first podcast was a week ago, and there have been 5 posted. Cumulus had better get its ass going if it’s going to do anything.
If a cease-and-desist notice was sent, it probably contained a deadline for compliance. That deadline was probably on the order of ten days. Let’s say that C&D was sent around July 25. If so (more “ifs”), then I WOULD EXPECT A LAWSUIT TO BE FILED WITHIN THE NEXT 3-4 DAYS, if at all.
Interesting. I did a quick search and found a 2017 case from United States District Court, N.D. Texas, Dallas Division.
ReplyDeleteRADIO NETWORKS, LLC, v. BAISDEN ENTERPRISES, INC., and Michael Baisden, Defendants/Counter-Plaintiffs, v. Cumulus Media, Inc. -- 2017 WL 2558792
Cumulus definitely included a Right to Match in that contract. From the decision:
"The unambiguous language of the Agreement gives Plaintiffs the right of first refusal for Baisden's services during the “Exclusive Negotiations Period” and the twelve-month period following the expiration of the Agreement. Paragraph 2(e) of the Agreement requires Defendants to provide notice of any third-party offer to Plaintiffs and gives Plaintiffs the right to match any such offer within fourteen days."
Dan said that he would always tell anyone (in the business, I presume) that asked him what he made, but that nobody who was there longer than him (Musers and Hardline, I presume) would ever tell him what they made.
ReplyDeleteTypical of that generation that somehow believes that it's "bad" to share salary info
@Buff Tanner -- Total Man: Great find. Many thanks. Dan and Jake may be close to reaping the whirlwind with their somewhat lackadaisical approach to the niceties of unraveling their relationship with Cumulus.
ReplyDeleteWow, a twelve-month term on that -- that could keep them distant from iHeart for a career-killing length of time.
If Cumulus wins, of course. At the very least, Smilin' Dan + Jake have taken a huge risk if they have an offer from iHeart and failed to disclose it to Cumulus (the contract probably requires disclosure of the terms in writing). I hope they have top-tier representation.
iHeart is apparently not shy about enforcing noncompetes for radio talent in Texas.
ReplyDeletehttps://www.chron.com/sports/article/Sportstalk-radio-Jayson-Braddock-noncompete-job-13121122.php
It will be one big pissing match for a month or two and then the accountants will get involved and neither side will want to spend the $ beyond a couple of threatening letters
ReplyDeleteThis is fascinating given my background in operations. Familiar with everything you said PMan, but the injunction. If a C&D is filed, what is the burden of proof? I ask, because I am wondering about evidence gathering. I would assume that Cumulus would have attorneys asking for text messages from everyone at TF to RW, and possibly between TT hosts as this transpired. Would that be a reason for the delay in a C&D? And, boy, that brings into question a LOT of things if text messages start coming out.
ReplyDelete@Scott:
ReplyDelete(1) "Equitable relief," like an injunction, has a higher burden of proof than a suit for damages because it requires the court to order a party to stop doing something, or to do something, other than just pay money. However, because (see (2)) a temporary injunction is only temporary, a court may enter it even if it isn't a slam-dunk for the plaintiff if the court thinks the plaintiff is likely to have a good case after discovery, since requiring the defendant to do nothing for ten days usually isn't that great a burden on defendant.
(2) The way it usually works is that the plaintiff will initially file a motion for a "temporary injunction," as it is called in Texas; most other states would call it a "temporary restraining order." That is a hearing where, if the court thinks there's something to the lawsuit (see the things that must be proven in Part 4.5, above), it will enter an order, sometimes called a "status quo order," that freezes the parties in place for no longer than ten days, in the usual case. That may be extended by agreement of the parties or by further court order. That all takes place in one hearing, prior to discovery, in which the parties may present evidence and testimony, but again -- only that which they already have, not which was gathered as part of the discovery process.
(3) In many cases, entry of that temporary injunction will end the case -- the enjoined party will realize it's probably going to lose, and the thing either settles or the enjoined party folds its tents. If the fight continues, it will proceed promptly to a "preliminary injunction" phase, possibly subject to expedited discovery, and a second hearing to determine if an injunction should be entered pending a full trial on the merits.
(4) Next would be the full trial on the merits, at which time the court would determine things like damages and whether to make the injunction permanent. Sometimes the "preliminary injunction" phase is skipped and combined with the "permanent injunction" trial.
(5) Yes, Cumulus would seek all those communications. No, it would not delay a hearing on the temporary (10-day) injunction, but might require extension of that injunction to permit some discovery to take place prior to any further injunction hearings.
Let me add here that it has been awhile since I've been in this game, so if we have any active practitioners out there who can correct my primer here, please do so with my thanks.
Pman, Texas is among those that has a TRO. The dance is TRO, which can be valid no longer than 14 days, and then a temporary injunction hearing.
ReplyDeleteThank you P-Man for the enlightening commentary. Regarding Part 3 and culpability of TF playing footsies with already under contract radio personalities at other stations, a throw-away comment by either KT or Cavanaugh several months ago during one of my random listening, may help connect-the-dots. Don’t remember which of the 2 guys said it, but while discussing subject of women in sports media, the comment “Well, what makes me very warm inside is that the radio personality that I had a huge crush on while at the last station, is considering joining us here at The Freak”.
ReplyDeleteConsidering both guys worked at The Fan the same time as Sybil Summers...and Sybil used to be married to Richie Whitt, but they are still buddies...makes one start to see how “footies” and “behind the scenes information” is created.
That's a lot of words sketching out a scenario that someone said a couple of weeks ago wasn't going to happen
ReplyDelete@A. Nonny Mouse: Yep. Sources can be surprised by turns of events, and that seems to have happened here. But you're right.
ReplyDeleteThanks P-Man. I got an ice cream headache from reading that but it was good info.
ReplyDeleteSurly, that was just, ya know,sad. And a non sequitur. I guess all this potential doom and gloom for your boys has short circuited you.
ReplyDelete@panzerfaust
Dude, come on. That name is cringe city, at best. At worst, vile.
P-Man, I’ll just say the analysis is spot on in a lot of ways, & I will say I think your conjecture is generally in the right direction.
ReplyDeleteHowever, I just don’t think litigation is likely. So long as D&J don’t hit the airwaves or announce as such prior to the noncompetes running out, I just don’t see Cumulus bothering. litigation won’t get Cumulus any money. Litigation is a crapshoot under the best of circumstances. It also brings attention to D&J, which they want & that doesn’t help Cumulus.
@B#: Thanks. Is what I'm calling a "temporary injunction" equivalent to a "preliminary injunction" in other states, do you know?
ReplyDeleteAlso: Do you think it's likely in this case, since they've been gone for a week now, that they would seek a TRO ex parte? Or would they go right for the temporary injunction?
@In-House: I might agree with you if they hadn't immediately sent a cease-and-desist demand. It doesn't absolutely mean the sender is going to sue, but if they deliver one, the other party does not cease or desist, and then they don't sue -- it encourages further violative behavior down the line by others.
ReplyDeleteNow: One thing I don't know is what they asked them to cease-and-desist from, because I haven't listened to the podcast where, apparently, the lads read the demand. Does anyone remember whether it demanded that they not start a podcast?
PMan, a tiny and maybe even totally unrelated or irrelevant item regarding non-disparagement. I am currently beholden to this, as is my former employer. An important element of that clause in my agreement is that non-disparagement does not prevent either party from sharing truthful things. So I can say things about my employer (and they about me) that one of us might not like. But as long as they're truthful, I'm free to state them (as are they). I've listened to all of the DZ pods and I don't hear anything that, as far as D&J are concerned, wouldn't reasonably be considered truthful. They've also intimated that legal counsel is reviewing each episode prior to publication. Now, they could have bad counsel (shocking!) but I just share that as another data point.
ReplyDeleteGreat post(s) btw.
Meanwhile Smiling Dan and Jake are rapidly approaching the 300k USD/year mark on Patreon. We could find they get more support when the much bashed Cumulus nation dirty laundry comes to light. Most P1s love The Ticket but have been taught by current hosts to look down at Cumulus as an entity.
ReplyDeleteMan they'll need tro first, then convert to TI within 2 weeks. I'd be surprised if they'd seek the TRO ex parte if D&J are represented. Most local rules have a conferencing requirement before ex parte relief is sought.
ReplyDeleteThere's an un-answered question here.
ReplyDeleteWhen folks like Gordo/Jake have done outside things WHILE employed by Cumulus, did they get a waiver from Cumulus or did Cumulus look the other way?
If the former, the waiver for Jake to do IJB is going to be Exhibit A that podcasting was specifically covered by his restricted covenants. If the latter, that's going to be prong 1 of Jake's defense.
The other point that you make indirectly Plainsman but I will make more directly - yes DaJ certainly have lawyers (and have referenced their advice). But that doesn't mean they're actually listening to them.
PMan, the C&D letter was mentioned on the 7/27/23 episode. He doesn't read the whole thing. Just the subject line of "cease and desist" and then the following:
ReplyDelete"We already understand you have posted an audio program to YouTube and are distributing a program called The Dumb Zone, which puts you in direct breach of your agreement. Accordingly we demand that you not only take down the programs immediately but refrain from doing the same during the noncompete period."
Dan: "This is certainly a different interpretation of things on the written page that were signed off on by various parties."
He doesn't state when he might have received this. In the episode with Akaash that was published after this one, but clearly recorded in the very first days of their departure, they make several references to the cease and desist and Akaash insinuates that he's read it. So...no idea when it was sent/received.
@Angry Pirate: Thanks, man.
ReplyDeleteCumulus almost has to sue, and damned soon.
@The Thermostat: Your waiver point is a good one. My only quibble:
ReplyDeleteWhen Jake and TC started "It's Just Banter," they were grundoons, not full-time hosts. The low salaries of non-hosts (and this point applies to lower-level employees generally, not just media) means that some competitive activity is generally tolerated as long as the employee is not using the employer's intellectual property. Also, they probably did not have contracts that prohibited it.
Jake and Dan, being hosts -- and Jake having signed a host contract by this time, if not one that compensated him lavishly -- apparently do.
@The Thermostat: But in support of your comment: Unless IJB was grandfathered in (or there was a waiver) when Jake signed a host contract, then yes, the continued existence of IJB at a time when Jake was under a host contract would be what we mouthpieces call "a good fact" for him.
ReplyDeleteI don’t know the difference legally, but I’d imagine cumulus finds IJB different than the dumb zone lol
ReplyDeleteCumulus with their massive debt in a dying sector is certainly not a corporate titan. I think some are mistaking them for Amazon or Apple.
ReplyDelete0U812, I'm not sure what your intention here is. You're trying to, what, convince others that TDZ is already a smashing success? That anyone who thinks it's too early to make a judgment either way is, ahem, dumb? That the often bandied about fallacy that terrestrial radio is a dying medium (it isn't, please look at the data yourself) and TDZ and its cohorts are the only viable way forward? This daily, sometimes more than once per day, posting up of TDZ's latest subscriber numbers and the projected yearly income (of course with no overhead, etc., factored in), again, is in service of, exactly, what?
ReplyDeletePerhaps I'm wrong, but I recall only a couple of comments that have out and out stated DnJ's venture will absolutely fail. I recall none that claim it's already a failure. What I have read and have myself said is that it's far too early to say anything about the success or failure of TDZ/DnJ. Let's revisit in roughly 6 months and see if whether they're employed at another corporation engaged in the business of a *dying medium* or not. If they aren't, then let's see how they're faring. The real question, granting that the pod route is indeed their route, is what it looks like in 1, 2, 3, years from now. That is, its sustainability? Moreover, is it sustainable and generating an income commensurate to what they would've been earning at Cumulus or iHeart or CBS? We all, including myself, tend to be short sighted, especially so when we're emotionally invested in something.
@OU812
ReplyDeleteI think you are woefully misguided and ill-informed when it comes to business and money. Both in the micro and macro sense of the terms "business" and "money." With all due respect you seem to have swum a bit too far from shore.
Careful with the ad hominem comments, everyone. Last few are skating close to the edge.
ReplyDeletePlainsman, I'm not sure how anything in my comment skated anywhere near close to an ad hominem. I merely asked questions. Nowhere in the comment is a slight directed OU812's way, either implicitly or explicitly. So I'm not sure what you're referring to. I don't think it's out of line to question intent. Now if I, say, question intent and my question either implicitly or explicitly points toward the other party having bad intentions themselves, well that's another story. But it's evident from my comment that that is not the case here. Allow me to quote myself: "We all, including myself, tend to be short sighted, especially so when we're emotionally invested in something."
ReplyDeleteI'd promise to be more careful in the future, but I won't. Not on this particular occassion, at least. It's unwarranted. If we cannot question another's claims and (when warranted, as I belive it is in this case) motivations, and do so without resorting to insult (which I did not engage in), then what is the point. If I want to be a part of an echo chamber, I'll head over to one of the other outlets.
In other Cumulus radio news, Rick Roberts has left WBAP and the 2-5 pm slot is open.
ReplyDeletehttps://barrettnewsmedia.com/2023/08/02/rick-roberts-departs-wbap/
Here's an angle that no one has taken so far. At least I haven't seen it. It's something along the lines of legacy Confessor, DA/SKA, would discuss: Cumulus has absolutely blown up many of there stations over the past decade plus. Very successful ones I might add. They've demolished entire market clusters of stations in order to cut costs. WBAP, a Cumulus station, is also looking for a new midday host. The job listing specifies that they are not looking for a politically focused host/show. Whoa. Say what? That's what WBAP does from 6am-10pm M-F and some on the weekends. That's very possibly an indicator that a big change (format?) is coming. These sorts of indicators and changes can be contagious in a cluster. I'm not saying The Ticket is going to change formats. Well I'm not saying it's likely. What I am saying is that when The Musers or any of The Hardliners come up for contract renewel/negotiations, don't be surprised if they're low balled, asked to take a cut, or even shown the door. Regardless of their success and all they've done for the station. And don't be too shocked if the unthinkable does happen. Like I said, Cumulus has blown up very profitable and popular stations. SF's KGO and KFOG come to mind. SF is a larger market than the DFW, so don't think market size has anything to do with it.
ReplyDeleteNot saying any of this is going to happen. But I am saying it could. It's not tinfoil hat stuff.
WBAP/KLIF has a newish PD. And if you listen closely, the morning show has moved away from the political side of things and more into straight talk. It seems to be working, their ratings are a lot better than they were. Top 10 6+ in the last book. And from a programming side it makes sense, a political focused station is only going to get the partisans on your side and the hate-listeners, who listen because they disagree with the Hannity's and Levin's of the world. For example, look at KSKY's ratings-
ReplyDeletehttps://radioinsight.com/ratings/dallas-fort-worth/
They're in the 30's They barely beat KCBI's Stream, and not much better than KNTU, which, when I worked there was weak south of 121 and unlistenable south of 635.
And I have to say, I lol'd when looking at that list. There's a reddit post that's basically 'What the hell has Dan Bennett ever done?".
Look at those ratings, He's gotten 4 of his 6 stations in the top 10. I don't have the patience or the math skills to add up each group's share, but even with poor performances from both KLIF's AM and FM, the Cumulus cluster has to be close to the top of the market, Does losing THZ affect that? Could be, but the lackluster performance of Rhyner and the Freak as a whole shows that people are loyal to the format and station, For people who don't hang out on message boards, will they even be aware of THZ's departure? Poster above who talked about 8 friends has a point. No not a representative sample. But if you're a casual P1, or a P2, and flip over occasionally expecting to hear sports, and you flip over and hear sports, the departure of D&J hasn't ripped a whole in the space-time continuum of their listening.
C
Jake went on a tirade on Twitter on 8/1, detailing all of the ways Cumulus wronged them. He deleted it soon thereafter.
ReplyDelete@ Lucky - That was definitely to be expected - Jake def wears his heart on his sleeve & no doubt Oxnard Ticket Week + New Midday Show announcements were hitting him hard.
ReplyDeleteJust A Few Observations -
-1. D&J-DumbZone- I'll pre-say I have not purchased EP's-- the Free Ones = about what i expected. Scatter in some Ticket/Cumulus dirty laundry & thats what the majority are wanting right now.
-2. I really enjoyed HangZone. I also enjoyed Mikey S..and Danny....but I have not switched the dial over.
-3. New Ticket Midday = I hope Blake is a part of the Invasion, and DJ contributing will be great. The 1-3 with Mino & SeaBass--- once Monty joins with Ham and Ty - - this will be Great. Just lose the long winded opening...play short clips. No doubt that Monty will make this show so amazing!
Bad optics on Jake's end these past coupla days. Dan too. But man oh man, Jake. All I've heard for over a decade now is how smart he is. These guys just can't seem to help themselves. If I'm their legal counsel I'm either about to or seriously considering stepping away. Sorry, fanboys, things are in all likelihood about to get ugly for your heroes. Sometimes you create a mess and the mess messes you up.
ReplyDeleteTDZ presentations are getting better. Dan is working in some drops and other audio. Jake mentioned last night on the latest release that they could really use a 3rd person (potentially a producer who is also on mic?) to help the overall presentation. Either way it is a fun efficient listen IMO and worth the 6.90 a month in terms of getting dozens of shows a month that will equate to about .50 cents per show. Let me pre-say that this is just my personal opinion and of course I will be flamed by all that will question my intent in an effort to imply if you don't have 100 percent loyalty and express worship of the mothership then your intent is by definition nefarious.
ReplyDeletewonder what Dumb Zone Producer pays? It's gotta be $75K+ considering all the complaints about how poorly Cumulus pays their support staff.
DeleteMy favorite part of TF is how after everyone "got their money" because iHeart "pays a real salary" they go online to complain about how, unlike TT, they don't have any support staff. Ben or Skin actually publicly asked if anyone wanted to do some work for them -- for free.
It can be your personal opinion and also be strange how much you want to amplify it daily.
ReplyDeleteReminder, the people who left the ticket and went to the freak did not get paid better for the same job, they got paid better by going from producer, tickers, to hosting.
ReplyDeleteIt was also reported that The Freak paid board ops and producers better than The Ticket paid board ops and producers.
ReplyDeleteWho are the producers for TF?
DeleteNo idea, I dont listen to it lol
DeleteAnyone know why Elf is at training camp with the guys? Is he covering the Cowboys for a non-Ticket media, like Saad? Hard to see the Ticket paying for a Sunday morning host to be there.
ReplyDeleteI don't know anything about radio other than what I enjoy. I do know about working for corporations and in my experience, at the best of times, I consider working for a large corporation like keeping an apex predator as a pet. Sure it might cuddle up to you when you've had a bad day. Sure they are pretty to look at. Sure they can be sweet and lovable. The but is that second you forget that they are an apex predator you're going to be laying on the floor in a rapidly expanding pool of your own precious bodily fluids. I have no doubt that Cumulus has done plenty of things that the hosts, former or current, have a legitimate beef with. Cat and Bennet might care about D&J as people or any of the other hosts, cumulus doesn't give a tinkers damn about them.
ReplyDeleteAre the "crimes" of Cumulus exaggerated on those that have been on the receiving end, probably? We, humans, tend to do that. Has D&J dealt in a shady manner with the corporate overlords, possibly? But in my experience, the only thing that keeps a corporation in line is fear of litigation for breaking a law that they can't cover up. There might not be any good guys in the whole affiar.
The irony of all ironies is, the Dumb Zone only exists because of Cumulus and Catlin. No one ever forget that.
DeleteMy guess is that Elf was there for the fight and extended the trip. He is connected and has some irons in the fire for boxing events. Not sure what all they are.
ReplyDeleteYeah, I get the feeling Elf paid his way there.
ReplyDeleteThank you for that. That podcast is nails on a chalkboard to me.
ReplyDeleteThanks for the bulleted list. I’m still so stuck on Jake or Dan saying they weren’t allowed to do what other hosts were doing? Like you mentioned, Gordo twitch stream is for charity? Does he not know this? Is he saying this to get ppl on his side? In facts, he’s the only guy with a podcast on the side that he was making money from.
ReplyDeleteThis is awesome. Thank you! Wanted to hear him but zero desire to hear the hosts.
ReplyDeleteNone of us are in their shoes. They made a decision they genuinely feel is best for them. Time will tell them if it was. None of us can ever define that for them. If they aren't doing anything in media in a year but are happy, we don't get to say that's a failure.
CJK5H, the only other Ticket personality I could think of that is monetizing content (other than aforementioned Gordo) would be Norm with his upcoming podcast, assuming he can generate revenue via ads, etc. Perhaps he meant other folks in Cumulus that might be doing it (Michelle Rodriguez, Hawkeye, etc)?
ReplyDeleteMonetizing isn't the problem as far as compliance with a noncompete is concerned. Something like donating proceeds to charity, or offering the content for free, doesn't cure any noncompetition problem there might be.
ReplyDeleteI don't know why certain extra-Ticket activities are OK but what Dan and Jake wanted wasn't OK.
One possibility is that the contract forms in effect for Norm, Gordon, Jake before he became a host, before Dan's final contract, did not unambiguously cover podcasts or similar arguably competitive activities.
Another likely element to Cumulus's reasoning is that Dan & Jake were recreating nearly the exact form of their Ticket show in the podcast.
Just don't know Culmulus's answer to the "other guys got to do what we want to do" defense, although I've tried to find out.
I would think scope could be relevant. A sporadic/once a week at best twitch stream outside of live ticket broadcasting doesn't seem comparable to 4-6 hours a week with the same hosting team basically the same content. Who gets the best material, the pod or the radio?
ReplyDeleteThat’s kind of my guess too. Dan and Jake basically wanted to do an after hours podcast of the show they do on air. The other ventures, jakes included, deviated away enough from what he did on air.
ReplyDeleteCertainly hope that anyone who reads the above, or listens to the podcast - don't immediately accept everything Jake says as truth, or forget the possibility he's leaving out important details (because they ruin his narrative).
ReplyDeleteJake Kemp is the biggest fan of Jake Kemp.
IrishLaddy: This is not all on Cat. He reports to Dan Bennett and Bennett reports to the Cumulus front office. Cat does not write or sign contracts. There is a chain of command and if anything, he is the middleman here. He is the head cat wrangler, Bennett is the ranch manager, and Cumulus owns the ranch.
ReplyDeleteyou have misinterpreted my statement. The show of Dan and Jake only exists because of the company, station and the program director that created the idea to put them together ( and might remind everyone - while also catching a shipload of crap about it too).
DeleteOf mild interest is to consider this:
ReplyDeleteIf SD+J think that their contract with Cumulus clearly allows this podcast, as they now claim, why weren't they attempting to do it all along? And why bargain for it specifically in the new deal?
If the answer is "because the noncomp only kicks in after expiration/termination," I think the answer is "no, that's probably not correct"; noncompetes generally run during the term of the contract and for the so-called "noncompete period" (six months here) thereafter.
Well TDZ pod that most seem to hate here in defense of the infallible mothership is now over 300k/year. It is pretty clear at a minimum will secure a 6 income figure from this enterprise.
ReplyDelete@Pman 418p
ReplyDeleteI think there’s a couple of ways to answer why not before and why push for it in the new deal. The slow burn realization over recent times that podcasting can be profitable - The Ringer selling for what it did, the rise of Barstool and Pat McAfee. As they said on Monday, their buddy Akash has been in their ear encouraging them on this. And why insist on it in the new deal? Because it’s a new deal and they believed they had leverage. Norm just left, record ratings, they were unified in wanting it and willing to walk without it. Most important they wanted it clear in the legal docs that they owned and could monetize everything outside of 12-3 so that Cumulus couldn’t pull the rug out from them. But Cumulus didn’t blink and it went down like it has.
I am unsure why we’re are supposed to suspect that D&J are lying about their departure or the reasons for it. It seems to me that many people here want to create a false binary of a good side and a bad side in all this. I doubt that’s the case with D&J or the other ticket folks that left to go elsewhere. None of us know what actually went down or if some here do they have not offered any tangible documentable proof of that information. I take P-Man and C minis at their word they have sources but those sources but it seems that all those sources are on the corporate side of this. I also know that they have way better understanding of the legal intricacies involved than I do. Still all that said I don’t see why I’m supposed to suspect everything that anyone who left TT has said as being disingenuous our untruthful but accept what is coming out of a corporation as truth. I’m way more inclined to believe and individual than a corporation. The number of people who have left in the last few years make me more than a little suspicious of just what Cumulus is actually thinking, doing or how they treat their people.
ReplyDeleteThis is coming from someone that does not now more ever has liked Dan or at least his radio persona. I haven’t listened to THZ n over a year so their departure doesn’t change anything for me. I just find this whole need to have a good guy and bad guy to be puzzling
@KDF, I understand your point.
ReplyDeleteBut there's nothing much coming out of Cumulus at all -- no communications to evaluate. My "sources," such as they are (and they are few) are for the most part not Cumulus partisans.
Almost all we know is:
(1) The timing of The Freak guys' departures and their sometimes conflicting accounts of how that all went down.
(2) The Richie Whitt article.
(3) Dan & Jake's actual demeanor since departing, which I would describe as "coy."
(4) Their (mostly Jake's) now-you-see-it-now-you-don't rants on Cumulus's wrongdoing, and some of the factual material (the cease-and-desist demand, for example) they've publicized.
Other than the Dan Bennett memo, which wasn't too informative and which really hasn't been denied by SD+J that I can recall, Cumulus hasn't reported anything that one can believe or disbelieve. And unlike SD and especially J, the people who work there have kept their yaps shut.
The result is that we are evaluating the Freak/SD+J "side" of things based on what feels right to us based on (1) comparing what's public knowledge from Freak/SD+J based our own work experience, (2) our evaluation of the Freak/DJ+J utterances on their face, and (3) nothing. Some believe it, some don't.
Myself: As I said above, I hope they succeed as a business proposition, and they seem well on their way to doing so. If Cumulus doesn't pull the trigger on a lawsuit real soon -- and I mean within the next very, very few days -- they'll sure look right about the noncompete. We can't evaluate the right-to-match claim unless we have more information, or unless they hit the ground at The Freak after the six months is up.
Technical Patreon question: When you sign up for a month or a year, does your subscription automatically renew, or do you have to affirmatively choose to continue to subscribe?
ReplyDeleteThey won't be able to allow an annual sub until they've been on for some predetermined amount of time (idk the length). But the sign up does auto renew.
DeletePlainsman,
ReplyDeleteYour Patreon, once signed up will roll over month to month until you chose to end it or your card expires etc. It is a month to month proposition.
B#: I take it you are the arbiter of perceived impropriety since you react to my running tally of Patreon subscribers. Is the D&J not the subject of these recent threads? I find it interesting that they seem to be succeeding past the expectations of many. No it's not personal. I don't know either D&J or are related in any way. Based on your overreactions to my posts I am beginning to become suspicious of your behavior. Are you related to the Ticket guys? When did you stop beating your wife?
Addressing Tricky Kid's summary of Jake on the Mom game podcast today, I don't think it helps TDZ side of things.
ReplyDeleteTK's bullet 1. Telling the other side of a legal demanded that you cease and desist doing something that you refuse to cease or desist gives them ammunition in the legal fight. "Look your Honor, this is why we need a TRO, we laid out our side and they told us to pound sand'. Their right to tell Cumulus that, but if Cumulus has a case at all the attitude doesn't help, it hurts. And I've got a source (Cumulus DJ, different market) that says his non compete specifically mentions podcasts as a competitive medium.
TK's2-3. If podcasts are considered a competitive medium, admitting that you want to do a free daily show is an admission that you want to go into competition with your former employer. While it is currently a hybrid (the 1 free then 3 via patreon) you're admitting your goal to try to draw away your employers listeners, which helps Cumulus prove damages.
TK's4- This may be about a non-compete, it may also be about IP. Anything TDZ created as Cumulus employees (including the name "The Dumb Zone") is Cumulus IP, not D&J IP. This sounds like they were creating an IP catch 22. They can't own something they create as Cumulus employees, and therefore don't have the right to monetize it.
4A- I've seen where IJB does the occasional live on-site podcast recording, basically a podcast remote. If their idea was to do something similar, TDZ is using Cumulus IP (TDZ recording a show) at a off-site location (is the location a cumulus client) and retaining that revenue? I can see why Cumulus wouldn't go for something like that.
(Cont in next post)
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TK 4B- The vast majority of radio listening is M-F 6a-7p. Gordo's twitch stream is outside that harbor. All the rest of the ticket guys side projects aren't direct competition - Bob's substack, Jake's D Magazine or Athletic writings, Norm's old track appearances, Sirois when he did marble races on twitch, or the Collectible Show, none of then are direct, head-to-head competition during prime hours. Without knowing exactly what D&J were proposing to monetize, it's hard to see who is right and who is wrong. But lets say they wanted to do a bonus hour that they would own, recorded from 330-430 after their show and posted soon after. Again, it's Cumulus's IP and work product that TDZ want to monetize for their own benefit, in competition with the Hardline. Now if they wanted to do a movie podcast at night, have at it. Youtube videos on flower arrangement, go right ahead. An hour of sports talk in competition with their own product? That's a no from me dawg.
ReplyDeleteTK's5- Good for them if they were trying to get more money for their people. How does walking away and being replaced help Blake or Birmingham pay his bills?
TK's6- OOh, they made an emotional appeal. Jake, you described this as your dream job, you didn't think they'd throw that in your face?
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TK's 9- 8 hours a day with lawyers? Even at a discount rate, you're burning a couple of grand a day doing that. And that's just responding to the C&D. IF Cumulus sues, (and I think they have to, the Ticket is one of their marquee stations), they're not going to let high profile jocks walk away and go into competition with them without a fight. Now your litigation expenses have skyrocketed. Briefings, depositions, research, meetings, all at a couple hundred bucks per lawyer, and it's not going to be just one lawyer, you're also paying for the associates, the paralegals, etc. And if you lose (and if your contract says a podcast is competition, you're going to lose) you're probably liable for Cumulus's lawyers fees also. And if Cumulus gets a TRO, that Patreon cash flow stops and it's all out of pocket.
ReplyDeleteTK's10- Good that Jake's wife has a good job. I was on the fringes of a court case once as a witness. for my deposition, there were 4 lawyers (2 ea side) a couple of paralegals, and a court reporter. In making small talk with them on a break, we guesstimated it was costing about 1500 per hour for all those people. Will Jake's wife income cover legal bills like that?
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I’m surprised that Atlanta hasn’t brought the TRO yet. If they believe their non-compete is ironclad, every dumb zone podcast published pushes more into a course of dealing situation to D&J’s benefit. I would assume CUME would bring suit in Dallas County district court. A quick records search of key names returns nothing this evening.
ReplyDeleteSeparately, I’d bet $5 that thru either networking or P1 loyalty that D&J won’t get crushed by legal fees.
Curious- how do you think networking would help them? I don’t see Ticket employees throwing money into the hat to pay TDZ to fight their employer. Same for other jocks at other stations. Rhyner, Sirois et al may want to see Cumulus lose, are they willing to cough up let’s say 5k to help? I’d want to see how good the Cumulus case looks. If podcasting is specifically named as a competing medium, THZ is hoping for the Hail Mary of getting non competes thrown out. Which may happen, no reason why their case would be a good test case to win.
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There are plenty of Cruz in Aledo dorks out there. Enough with law degrees that will offer discounted legal assistance. Not saying any of that can help their legal standing, but from a monetary standpoint, i don’t think they’ll be bled dry. I’ll continue to bet $5 on it
DeleteThere are very few that I think want Dan and Jake to fail. Some wish they stayed at the ticket, sure. Then there are some that want Dan and Jake to conquer the world and kill the ticket in the process. I find it odd. The hangzone was a good part of the ticket but….
ReplyDeletewow - That MomGamePod is...Rough. The part i made it thru, and what was quoted previously... Jake on what was the main reason- "Audio and Video content" - Cumulus not on board.
ReplyDelete- Rebuttal - "Other People Do This".
This has to be a reference to Gordo, right?
As much as I enjoyed Jakes Cowboys takes day after game, I'll gladly enjoy MM w Donny, and Mino and Monty's.
Even if it is, is Gordon’s twitch stream competition for listeners? Is the content similar to a regular Musers show? The more that leaks out of the mothership, the more I’m convinced Dan and Jake wanted to go into direct, head to head competition with the people paying them, and expected to monetize that competition AND retain that revenue for themselves. Talk about a non-starter.
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^ & hitching your wagon to Dan is - - A Bold Strategy, Cotton...Let's See If It Pays Off For Him.
ReplyDeletePlease start deleting OU812's comments. This person is an obvious troll who creates straw man after straw man. No one. Not one single commment has wished Dan and Jake ill. Yes, there are many of us that are skeptical that this will succeed in the long run, no doubt. But not one comment, period, has wished failure on them. You have been conducting a monologue with yourself for the past few days. One can wish DnJ well on their endeavor and simultaneously hold the belief that their move was ill advised, has a very good chance at not working out, might be in some serious legal trouble, and might not be portraying the situation in a wholly truthful way. Are these concepts too difficult to understand? I say no. But, from your now days worth of incessant bullsh, I'd say it might be the case for you, OU812. So either engage others honestly and in the spirit of fruitful discourse, or go back to whatever platform that rewards your behavior.
ReplyDeleteWhy is anyone trying to police what should or shouldn't be posted here?
ReplyDeleteI come here for a more tempered discussion on ticket happenings, so I appreciate the community's efforts to keep the tone of conversation here what its historically been.
DeleteOne week into the new afternoon shows I have not changed my opinion from my initial thoughts. Donnie and Matt are fine. I still think Matt is in on the generic side but it's a solid show. I do find Blake more enjoyable paired with Donnie and Matt than with Dan where I felt he was caught in a loop of trying to out passive agressive Dan. It is without question a better show than what B&S put out there and probably superior to K&C though I think that gap isn't a large one at least for sports stuff. I will most likely listen to it more, especially once football season gets up and rolling. That said I don't think I'll be a five days a week listener.
ReplyDeleteSean and Mino. I enjoy what Mino brings I still find Sean boring. It's hard to judge the show off this week as I think it will have a very different feel when Monty comes on board next week. Right now this show ranks behind listening to podcasts unless there's a breaking sports news story I want to get info on.
YMMV of course.
Dumb guy question here, but what is the limitation when it comes to non-competes, is it limited to audio formats or is it just general broadcasting? If somehow Dan ended up working for WFAA on a weekly talk show, does that violate the NC?
ReplyDeleteI just struggle to see the case Cumulus has here under the current situation.
Plainsman linked a case in the previous thread where it didn’t cover streaming, but that case was a decade old. I’ve got a buddy in a smaller cumulus market whose non compete covers radio, streaming, video, audio, podcasts, you name it. Cumulus probably wouldn’t be sending a cease and desist order if they didn’t feel like they had a case. And as Plainsman mentioned elsewhere, the way these are generally structured is there’s a dollar amount included on top of the salary as consideration of the non compete. So (made up numbers)
DeleteWe agree to pay you 100k per year in salary. As an incentive and in consideration of clause (whatever) if this contract, aka the non compete clause, we agree to pay you an additional 25k for your agreement to not compete in (market) for 6 months from end of employment in (all the mediums listed above)
Some non competes are not being upheld, because it makes no competitive sense to stop a hooters girl from going to twin peaks. But if Dan and Jake signed a valid contract, with monetary consideration, to not compete, and they do a podcast, they’re facing a lawsuit.
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Get busy for a few days at work and suddenly I have a pile of reading to do.
ReplyDeleteI better leave the drinking of adult beverages until after I plow through this.
Regarding Gordo monetizing content outside of his Ticket gig, Dear Jake, you ain’t Gordo. The new shows are fine. Mino and Monty will be good, I do like the level of Ranger knowledge between Sean and Mino. That might change when the Rangers lose 100 games again. Donnie and Matt are as dry as Donnie and Norm were so no big change there.
ReplyDeleteSeveral Confessors have requested OU812's deletion.
ReplyDeleteI have gone back and read all OU812's comments. They support SD&J. His calculations of the revenue more or less match mine. His tone is acceptable. There's nothing there delete-worthy to date.
Yes, this is a Ticket fan site, but reasonable commentary in support of competitors, including The Freak and SD+J, has always been permitted.
The line between trolling and disagreement may be hard to discern, but OU812 has not crossed it.
As I sit here, The Dumb Zone has exactly 3700 members. The rate of increase seems to have fallen off somewhat in the last day or so.
ReplyDeleteI think their total would have been helped with an extended dry-dock/fill in situation (or really a continuation of the fill in Donnie 10-3 situation). As is, their resignation was 7/18 per the leaked email, and your leader, Western Hemisphere Catlin ( that right?) had 2 replacement shows spooled up and ready to roll in less than 2 weeks. Advantage to hiring from within? But also having regular shows on gives people less incentive to seek out the old status quo. Now comes the subscriber count death watch. Is it rising, falling, flat?
DeleteC
Maybe something, maybe nothing, but TDZ did not publish a pod yesterday. Perhaps they are ceasing and desisting. Perhaps it's a day off (they said they'd do four per week). Just found it...odd...given the timing and the legal rumors. Also nothing on their twitters that I saw that might explain the lack of post. Maybe Jake's appearance on the mom game was enough for a Thursday? If they don't post one this evening I would get a little more curious and think maybe they're ceasing and desisting.
ReplyDeleteI will say, it has occurred to me that negotiations may not be entirely over between the parties. I don't see how either Smilin' Dan or Jake can go back, but maybe there's some room for face-saving on both sides.
ReplyDeleteI have two reasons for thinking this might be a possiblity:
(1) If SD+J have decided not to cease and desist and to wait for a lawsuit, there is no reason for them to be spending hours and hours a day on the phone with lawyers. If, however, offers are being exchanged and evaluated, then yes. And iHeart itself may be involved.
(2) Cumulus hasn't sued yet when the correct strategy (if they feel the've got a winner) would have been to sue immediately.
what is the smiling dan thing even about?
ReplyDeleteI wonder about that, as well. Why Smilin' Dan? Besides, I imagine it upsets Surly more than just a little.
ReplyDeleteI also found it strange they didn't post a pod last night. As some have pointed out I am a big fan of what they are doing on TDZ but I will also readily admit the midday shows are also ok. I think it's ok if I like both correct? I especially like Mino and what he brings. He is an emerging talent.
ReplyDeleteWhy would it be strange? There are supposed to be 1 free plus 3 each week. That means there will be one weekday every week with no release. They also mentioned Dan will be traveling and things might be off in the next week or so
ReplyDeleteLast two hours, nine new subscribers to The Dumb Zone.
ReplyDelete@Surly: Dan grinned and joked his way through that sad video they posted, while Jake looked . . . unwell and unhappy and barely tolerant of Dan's "isn't this fun?" attitude.
ReplyDeleteI'll probably drop "Smilin' Dan" after awhile.
Strange because they released pods on the 31st, 1st and 2nd. Nothing on the 3rd, and so far nothing on the 4th. So that's 1 free plus 2. That’s not what they promised me as a subscriber, bit more importantly, it doesn’t rhyme like 1 free then three.
ReplyDeleteAre they late? Or are they either ceasing or resisting? Only the shadow knows (evil laugh)
C
Desisting. Damn spell check.
ReplyDeleteC
Jake and Dan are sticking it to the man and not doing the promised 4 episodes a week
ReplyDeleteYou guys should consider what time they post episodes.
ReplyDeleteHey look it’s a new episode
ReplyDeleteThey are late. Jake is pregnant.
ReplyDeleteBeen reading for a while. Surly I like your style
ReplyDeleteLet me know if you want to get some ice time.
So you're OK with this?: " Based on your overreactions to my posts I am beginning to become suspicious of your behavior. Are you related to the Ticket guys? When did you stop beating your wife?" --OU812 August, 3 2023 7:57PM
ReplyDeleteSomeone doesn't just accuse, no, they go so far as to state, definitively another physically assaults their spouse....but you take no issue.
"I have gone back and read all OU812's comments. [...] His tone is acceptable. There's nothing there delete-worthy to date." --Plainsman August 4 2023 12:15PM
If you're cool with this, then exactly how does this site differ from any other cesspool on the web?
Hey Plainsman, when you engage in the act of kidnapping do you use a white panel van or an ice cream truck?
ReplyDeleteDo you find this acceptable, unworthy of deletion? It's the same rhetorical ploy as OU812's. I could've made that example a lot more pointed.
Agreed disappointed in desoto OU812 cut and paste that last sentence from a text he was sending to his friend.
ReplyDeletedisappointed in desoto
ReplyDeletechagrined in carrollton
Good grief. Is irate in Irving going to chime in next?
Hey guys
ReplyDeleteCome on disappointed in desoto said...
ReplyDeleteMy goodness you have to know I was making a point. I was accused of either being a family member or some other nefarious actor. I was responding to the fact that I didn't appreciate being accused of being something I wasn't (kind of like the old tactic of asking when they stopped beating the wife)
I will herewith retract that statement and just reiterate without the histrionics that I am not related in any way to D&J nor do I benefit in anyway from their success nor am I friends with anyone related to them. Final disclaimer: I don't think or have any reason to believe anyone here beats their wife!
This isn't all that important but, anyone catch on that Mom Game episode Julie is downing a couple wines prior to going to her 2-6 radio show
ReplyDelete@ frivolous
ReplyDeleteThe freak hosts getting buzzed/drunk before going on air might actually improve the product
No, but it doesn't surprise me in the least, FiF. She seems to have been treading, and continues to tread, water from the jump.
ReplyDeleteSpeaking of TF. Has anyone bothered listening to the am drive version of TDB? I have to admit that it isn't bad. Now you can only go up from what preceded it, but it must be said that Sirois seems to be rejuvenated and Danny gives off the vibe that he finally has a partner and is no longer babysitting. The pm drive version of TSE, well that's another story entirely. Cavanaugh either needs to be doing hardcore sports talk or not be on-air at all, period. Please see the above regarding Julie. Rhyner? Not sure what to say at this point other than he's once again stealing from the company store (taking a paycheck for services not rendered). Back to TDB 2.0. No, they're not a threat to DnM. But I'll say this: if they keep this up and keep improving, they will absolutely be an alternative listen when either DnM are on commercial break or during a segment you don't particularly enjoy (looking at you, Peter King and most of the college football expert guests). Who knows, they might even establish a proprietary segment or two of their own that becomes a must-tune in at X time on Y day. Crazier things have happened, you know.
@OU812
Good on you for owning the bitch move and apologizing. Others ought to follow your example. Let's get MTC back to its sweetspot.
Did a quick check in around 4:30 today and it appeared Rhyner and Julie at the very least were buzzed. Audibly so. Specially Rhyner.
ReplyDeleteI have always enjoyed Danny Balis. I really wish they would have just made him a host in the fashion of Dave Lane. Would have been awesome to have a mid day show reuniting of the Orphanage + Donny.
ReplyDeleteHigh in Hurst let me know if you want to join our rink time.
ReplyDeleteFrivolous in Frisco and high in hurst. What positions can you play?
Really concerned in Royce city, I see you as a forward.
Distraught in Denton. Pm me your uptops.
Also there is a female poster on the Reddit site who looks like junior killer with long hair. I invite her to join the skate around and play goalie. The cat from Maine Julie can’t make it.
ReplyDelete@KDF
ReplyDeleteJust checked out the reddit thread you mentioned. Holy cow is ex-Ticket employee Sam Hale an arsonist! He doused the place with gas, lit the match, tossed it over his shoulder, just skipped on out of there. I've said it before and I'll say it again, if I'm the admin for that page, I am deleting a shit ton and banning even more. The libel being layed down there about MM is incredible.
I saw the comment about MM saying he sent unsolicited d-picks over the air today. No one as yet has given any reference as to when it occurred. No approximate time, segment, or URl (usually someone is Johnny on the Spot with that stuff). There's also a couple of threads about MM and Blake tension, as well as MM and Donnie tension. Those mean very little. At least right now. If Donnie and MM tension is obvious this time next week, yeah, it's probably a legit concern. But man if the d-pick statement is real, I don't know. Monty might be on the Varsity squad real soon (either with Donnie or WiP Proper and Sean with Donnie).
@Gunnar
Sorta funny it at first, but you've jumped the shark. A new angle, maybe?
Hearing Blake may not be sticking around the. EA and Saad and DJ last men standing for 2 producer spots?
ReplyDeleteThe Way We Were You hit the nail on the head. Weird stuff today. Let me know if you want to skate.
ReplyDeleteThe way we were. Can you provide links ? I read that is how things are done. Here. Skate after.
ReplyDelete@ The Way -- I had the Invasion on in the bg, I believe Corby had joined them, this would've been after Noon. I don't think he specifically said he sent pics out..i think when the D Pick topic was happening MM asked Donny if he's ever taken a picture of 'It'.
ReplyDeleteThat alone will probably draw an office sit-down I'd imagine, all things considered.
So the TDZ boys have completed two weeks worth of pods. If cumulus really thinks they have an ironclad non-compete, what the crap are they waiting on? Based on the negotiations and what D&J were asking for, they could’ve filed for a TRO the day they resigned. It was clear as day that D&J would be podcasting. Very weird they have haven’t acted yet.
ReplyDeleteMostly Confused in McLendon-Chisholm What size skate?
ReplyDelete^^^^^^^This is the same person who posted all the comments and questions regarding Mino's looks, social life, and whatnot.
ReplyDeleteThat whole conversation came up in the 12:30 news at 12:50 segment. They were talking about a college player who has since transferred to Ole Miss after being kicked off the team for taking pics of teammates and posting them on Only Fans. Donny was getting kind of uncomfortable with before the break came.
ReplyDelete@BookBook Won't be surprised in the least if he never said he had sent such a photo, as it's being portrayed on reddit. You might be right about getting read the riot act. That's a subject matter that should never be brought up unless it's news related. For example, the Brett Favre d pic scandal. Or unless it's a total and obvious joke that's aimed at making fun of someone who's done such a thing. From the sound of it, Matt has yet again failed to listen to that inner voice that says, "STOP!, this is a bad idea." Perhaps his inner voice only encourages, rather than discourages. His track record seems to indicate it. Obviously I don't know the guy and I'm not going cast aspersions on him. Though I will say he seems to me like someone who really, REALLY craves attention and will do and say anything to get it. Including revealing personal info that he shouldn't. That no attention is bad attention, and bad attention can be spun into good.
ReplyDeleteI think Surly is right about Blake. My guess is he's awaiting word from DnJ, and at that hour he'll bolt to TDZ. Surely TC will be in the mix, if he already isn't.
I subbed and have listened to every DZ pod. I'll most likely not renew in September. I probably won't listen again for quite a while and will resub in mid October or November. I want to let them find their footing. At least I'm hoping what I've heard so far isn't their footing and the show will transform into something funny, interesting and informative. Right now it's jagged and disjointed. The only thing somewhat interesting is the sometimes mixed message about TT and all people and things TT related. The novelty of that's already wearing thin. Right now TDZ is reminiscent of the first week and change of TF. That is, a lot of inside baseball on TT. Difference is Dan and Jake aren't constantly patting themselves on the back. Past TT stuff, it's mostly drug use and sex talk and a whole bunch of bogging. I don't care about Dan's sex life or hearing about masturbation. I mean, whoa, how edgy. Not. Boring and it shows a lack of substance and imagination. I listened to The Stern Show in its heyday. Been there, done that. If they continue on this path, they might end up like Rhyner: a caricature of everything you once publicly disdained, made fun of. So I'm hoping that once these turbulent times settle down a bit, so too will Dan and Jake. I'll revisit them down the road, for sure. Because I firmly believe these two have the goods. I'm hoping they don't lose or have even lost the plot. That'd be a damn shame.
ReplyDeleteIt's early in this summer storm. Cue Vivaldi.
ReplyDeleteI'll eventually get around to buying access.
As to all the lawsuits and stuff. Well, that might take a while. After six months what then? They aren't exactly ceasing or desisting right now. Guess we will see.
So the people that said they’re going to the freak, surly I think was one, maybe not? Not calling BS on that, bus what’s the thoughts on that now?
ReplyDeleteYeah I did but based on what they’re saying and doing I would say 95% they’re not. And I think they would strongly prefer not to.
ReplyDeleteApologies for the typos, for the Bob and Jake, etc. The post was over limit and I had to get it up soon.
ReplyDeleteis this your deduction of events, or are you reporting something you claim to have 1st hand knowledge of? I ask because it appears out of order and the parts certain players played are incorrect, IIRC.
ReplyDeleteI have no memory of a Rhyner to the Fan rumor. When was that?
ReplyDeleteALERT: SUIT HAS BEEN FILED BY SUSQUEHANNA RADIO LLC AGAINST DANIEL MCDOWELL AND JACOB KEMP.
ReplyDeleteNew thread is up. No further details at present.
https://www.dallasobserver.com/news/breaking-un-news-mike-rhyner-and-the-hardline-staying-at-the-ticket-7102129
ReplyDelete