Tuesday, August 8, 2023
BREAKING -- CUMULUS MOTION FOR EMERGENCY TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION -- COURT DENIES INITIAL TRO/INJUNCTION FOR CUMULUS COUNSEL FAILING TO COMPLY WITH MANDATORY FEDERAL RULE -- SETS HEARING FOR AUGUST 21 FOLLOWED BY MEDIATION ON AUGUST 22
Subscribe to:
Post Comments (Atom)
On a non-D&J non-lawsuit issue: Where's David on the Ranch Reports? Did I miss an announcement of him moving on?
ReplyDeleteNon-lawsuit comments are welcome and encouraged.
ReplyDeleteI heard a brief mention yesterday that D Moore was back in Dallas. No reason was given that I recall.
ReplyDeleteI am listening less and less mainly due to not much new and more commercials over content. I am compelled to follow this story kind of like watching the show Yellowstone. I don’t like the show as there is no redeeming value but I keep watching. Bad on me.
ReplyDeleteIn other matters. (queue the Norm drop)
ReplyDeletehttps://www.allaccess.com/net-news/archive/story/230043/research-director-inc-exclusive-july-23-ppm-analys
https://radioinsight.com/ratings/dallas-fort-worth/
The freak..woof
ReplyDeleteSo what does it mean that The Fan and The Ticket’s cumes are so close? And The Ticket’s is far lower than the other top stations
ReplyDeleteAh you’re in my wheelhouse now. At its simplest, ratings are cume plus TSL. How many people do you have listening and how long do they listen for. I’ll use 2nd and 3rd for easy comparison.TT and kscs have almost the same ratings 4.6 +/- .1, but TT Cume is half theirs. Short version, their TSL is double KSCS’s.
ReplyDeleteTo put it another way, 1 person listening for 10 hours is the same ratings wise as 10 people who listen for an hour each. Advertisers who want to reach a lot of people may look at high cume stations. But then you need to pay for / play a lot of spots because turnover is high. It all depends on your desired reach and frequency goals, do you want a smaller audience to hear your message more, or a bigger audience with less impressions?
If you’ve ever heard lawyers say “if you have the facts on your side you pound the facts, law on your side, pound the law, neither, you pound the table”. Radio ad sellers with cume pound their cume numbers “you’ll reach 600k people!”. Stations with high TSL sell frequency, “the average listener will hear your ad X number of times”. And stations with neither cume or TSL pound the pavement desperately searching for advertisers.
C
That’s great, I appreciate the explanation
ReplyDeleteYa know, MANY years ago (almost out of the key demo), when I got my EE degree, I learned about SCA radio frequencies. That was about the coolest thing I knew about radio, other than my HAM license. I will say, I have learned more about the radio business, ratings and how contracts work in that world here, than I ever thought I would wondering what happened to HeeWho 15 years ago.
ReplyDeleteAnd, just in case there are other operators in the group, 73
And some back of the envelope math,
ReplyDeleteTT 363k cume, 4.7 rating
Fan 330k cume, 2.5 rating
TF 176k cume, 1.2 rating
So ticket and fan have same basic audience, but people listen half as long to the Fan as TT. ( and note- a good rangers season will increase both their cume and TSL, if Welpton posts TT memo to Reddit, look if the fan increase is mostly 7p-mid, or if their overall ratings have increased March-April-may-June-July)
And TF has half the ticket audience, and they listen for 1/4th the time they spend on the ticket (4.7>1.2). So they may share some audience, but it’s not compelling enough to keep people around.
C
Can't wait to see the day part breakdowns. TF. Oy vey. How much longet before it's put out of its misery? TDZ cannot save that hunk of crap.
ReplyDeleteAkshually…
ReplyDeleteI’m told TF actually improved in PM drive, with the team of Mike Mike and Danny. But this book is through 7/20 and they moved 2nd Mike and Danny on July 24th. So that momentum they had? Yeah put a stick in the spokes cause you just broke up your most successful show. But god knows they had to do something to shore up AMD.
C
Confessors,
ReplyDeleteI think something's up at Cumulus/Ticket.
Dan and Jake are looking more like winners every day that passes without definitive action by Cumulus on injunctive relief.
What might that be?
(1) Second thoughts by Cumulus about how much they care about SD+J competing and infringing and disparaging, compared with the expense of stopping it.
(2) Unhappiness/disagreements with legal representation.
(3) Disagreements between Atlanta and Dallas counsel.
(4) Gathering more definitive evidence, perhaps relating to iHeart involvement.
(5) Legal representatives not on the ball (doubtful).
(6) Continuing communications between the parties (through counsel) on some kind of face-saving compromise (I like this one).
(7) Fear of losing.
Something's gotta give. Cumulus delivered a cease-and-desist order as soon as Dumb hit the airwaves. Pretty much right on time after what I have assumed was a ten-day compliance period, Cumulus filed suit. So they were not, to that point, sleeping on their rights.
But they are now, unless something's been filed without anyone notifying MTC.
They can't do nothing.
Conclusion: they're doing something, or thinking something, or saying something that we can't hear.
Thanks to all Actual Practicing Attorneys, IBNLT APA, for periodic updates on PACER filings.
One dude said the other steel toed boot what was bout to drop lol
ReplyDelete8/8/2023 Motion for Temporary Restraining Order:
ReplyDeleteEmergency MOTION for Temporary Restraining Order and Request for Preliminary Injunction filed by Susquehanna Radio LLC (Anderson, L. David) (Entered: 08/08/2023)
You were saying....
ReplyDeleteThey must have read my comment.
ReplyDeleteThings should happen quickly now.
Can anyone fetch this for me? TO: ThePlainsman1310@gmail.com
Just sent you the PDF
DeletePS: I doubt there will be much new in there except (1) specifying exactly what relief they are seeking, and (2) possibly additional sworn evidence and/or testimony.
ReplyDeleteI'll pass along any news.
Dan and Jake knew this was coming, they referred to it in a vague way and obviously wanted to get that yt video posted and on Sunday before it dropped
ReplyDeleteStill loling, CJK5H? Boot is en route. Wait for it....
ReplyDeleteI wasnt loling in that sense, I’ve voiced my concern over Dan and jakes ability to navigate this
Delete#4 is very much in play. The horse left the barn on #6 about a week ago.
ReplyDeleteOk I’m not saying the Tickets lawyers are p-1s, but it’s pretty damn funny that they hit Dan and Jake with a TRO request around the worst hour (2pm) of the worst day of the year (today per one Craig junior Miller). Everyone I’ve talked to who’s read the lawsuit and their contracts seem to agree that Cumulus has them dead to rights on the IP material and Jake’s non compete. Lawyer acquaintance says if a prima facie case can be made at an initial hearing, the TRO is likely to be granted. I’ll let APA or an actual attorney weigh in if they feel that’s true, but if it is TDZ is about to get muffled.
ReplyDeleteC
And this thread reminds me of an early message board, I think the topic was the legality of Napster, limewire, etc. one poster always started with “hey IANAL” every post IANAL this, IANAL that. Till the day one guy responded “dude nobody cares where you stick your ….”
ReplyDeleteThen we had to explain internet shorthand for I am not a lawyer. I’ll always lol at the number of people who were like OHHH that’s what he was saying. A bunch had no idea, but didn’t wanna ask
C
Some Facebook riff raff seem to think the non-compete is unenforceable. Me thinks they are mistaken.
ReplyDeleteGoing back to my post, a while back, not sure when.... If lawyers are sniffing for intel, they are sniffing texts, DMs, all sorts of things. My gut tells me, that may embarrass some folks who may be subpoenaed for that info. Additionally, yeah, Cumulus may not want things out there, like what everyone at TT makes, for comparison.
ReplyDeleteThe longer it goes, it might be genius. SD+J violate NC, their lawyer says here are the claims Cumulus, refute them in court. Cumulus, maybe not wanting to, and Tier 1 hosts not wanting to submit things, plus the cost and possible outcome..... Cumulus may just say fine, drop it and go.
As much salary discussion as we have seen, and with the claims Jake made, I am guessing that will be part of it. And I am sure, NO ONE at TT wants that information public. I am thinking that is what the boys wanted, an opportunity to expose everything. Then, deal with the outcome
What relevance do you think what tier 1 at the ticket makes has to this case? You can ask for a lot in discovery, but the other side can push back and ultimately a judge would make the call on relevance. And offhand, I’m not sure how “your honor my client violated his non compete because the Musers make more than him” flys in a court of law. It’s like saying “he violated his non compete because Gal Gadit is hot”. Yeah it’s true, but how’s it relevant to the case?
DeleteC
FIRST IMPRESSIONS OF THE TRO/PI FILING
ReplyDeleteCumulus did what I would have expected to do, which was to cut and paste the allegations of their veried complaint into their motion.
The difference is that the various counts are now supported by legal authority, mostly in the form of case law, but there are a few other items of interest:
On August 4, Dan accidentally called their "Today in History" segment "Why Today Doesn't Suck," thus (according to the Motion) "showing that the two segments are identical." (Motion at 12, n. 4.)
Citing cases showing that the geographic, temporal, and subject-matter limitations are reasonable under Texas law. (Motion at 16-18.)
Cumulus only alleges that "at least one Ticket sponsor" has been solicited by defendants. (Motion at 21.)
A quote from the Burke case that C Minus and I have described, which states that technical differences "between internet and radio broadcsts are irrelevant for the purpose of considering whether" the broadcasts are competitive, and to "hold otherwise would be to elevate form over substance and ignore the economic realities of an industry that is increasngly shifting to the internet medium." (Motion at 18.)
Cases showing that social media accounts and the like are property interests and may be subject to charges of conversion (theft). (Motion at 22.)
A reminder that defendants even used the phrase "the dumb zone" to refer to themselves on The Hang Zone. (Motion at 23.)
Quote from a Texas case: "In Texas, injury resulting from the breach of a non-compete is the epitome of irreparable injury, so enforcement appears to be the rule rather than the exception." [There's your answer to "Cumulus won't be able to show they've lost money from The Dumb Zone's existence."]
The request for relief was not as specific or terroristic as I am used to. It basically asks the court for a TRO prohibiting the lads from:
-- violating their noncomps, including broadcasting or otherwise distributing the Dumb Zone [although, inexplicably, it does NOT request that they take down the Patreon site or that they delete the currently-available segments, even though in another prayer for relief, they want them to turn over the Patreon "account," which may amount to the same thing in effect, but you ask for it anyway -- another lawyer oversight, in my view].
-- soliciting Cumulus's customers and advertisers [again -- it does not specifically ask for an order keeping the lads from soliciting new Patreon subscribers.]
-- continuing to disparage Culmulus and its past and present employees, officers, directors, products, and services.
-- "continuing to convert Cumulus's property" by requiring the lads to return control of Susquehanna of thedumbzone.com, the social media accounts that the lads redirected, and the Patreon account for The Dumb Zone.
Here's the most incredible thing about this motion: THERE IS NO MENTION OF THE TRADEMARK INFRINGEMENT CLAIM THAT IS THE BASIS OF THEIR INVOCATION OF FEDERAL COURT JURISDICTION!! IP trial lawyers out there, can you think of any technical reason that this motion should not include a request for a TRO preventing them from using the Ticket's stuff under the Lanham Act? Maybe there's an obvious answer that makes its exclusion not so incredible -- but to me it looks like a glaring omission.
That's it.
Susq. is an out of state entity, so we still have diversity jurisdiction, no? #civpro #lawschoolwasalongtimeago
DeleteThere may also be a quick settlement that could look quite favorable (relatively) to DnJ. Maybe the NC clock just runs to the end of the year, they C&D the podcast now, and then they go work somewhere Jan 1 and everyone walks away. There's a wide array of possible outcomes here.
ReplyDeletePS: Also no mention of the breach of fiduciary duty claim, which I think was weak to begin with, so no big deal there.
ReplyDeleteAlso: There are no new affidavits. They're going to rely on the verification of the original complaint by Dan Bennet(t).
No mention of whether they're seeking an ex parte hearing (hearing without notice to the other side, which would almost have to have been today). So probably not.
Should have news on a hearing schedule soon.
#4. Cumulus is the one now playing coy. This is personal.
ReplyDeleteWait for it. Wait for it. . . . . . .
That's correct, P1 Judge.
ReplyDeleteI didn't mean to imply that the failure to mention it in the TRO motion would affect jurisdiction. But it was a very large (and convincing) part of the complaint, so I thought it was odd to see no mention of it here.
But you're right to point out the alternative basis of federal jurisdiction.
Any idea why Cumulus wouldn't bang on the trademark claim here? Page limits?
I'm certainly outside of my government entity and subject matter, but maybe since the trademark allegations are also part of the proof of violation of the non-compete, they seem superfluous... Although, for all I know, trademark law offers more generous remedies than standard contract law...
DeleteThis is probably far too simplistic, but the more I think about it, the more I think the genesis of all this on DnJ's side is them conflating themselves and their situation with that of a pro athlete's. As if they are trying to maximize the monetization of their "brand" and all that that entails, because the lifespan of this profession is short and you have to take all you can, as fast as you can. Seems silly. But from what I've seen out of these two, silly is how they go about things.
ReplyDeleteYep completely agree. Said that Dan and Jake bought into the player empowerment movement.
DeleteCan someone please check PACER to see if any orders were entered today? Thank you.
ReplyDeleteC Minus: Correct re relevance of other salaries. Frankly, since SD+J are on record as saying the money was fine, it's doubly irrelevant. Judge isn't going to get in to the business judgment of either party.
ReplyDeleteShe'll just compare contract promises and statutory requirements to conduct that appears of record (presently, only the Complaint).
The lads deserve their day in court and we're finally going to hear what their lawyer thinks about all this, as opposed to what SD+J are telling us they've been advised (i.e., it's OK to disparage). Can't wait to hear what they're going to say.
The waiver argument (Cumulus has allowed others to broadcast independently) will undoubtedly come up. By the way, I note that the TRO motion, to my recollection, does not try to head off that argument in any way; I think I might have teed that up in the motion to show that I wasn't afraid of it. I'd love to find out when that hearing is going to be and drop by. Since they still say they want a TRO, I'm guessing that:
(1) It's already happened and an order has been entered [possible, not probable], or
(2) It'll be tomorrow (Wednesday).
Can anyone explain how usave.it is allowed to make money by selling Ticket content?
ReplyDeleteI never thought about the legality of it until now, but I have had a subscription with them for several years in order to listen to TT on demand.
ReplyDeleteI wonder if The Ticket gets money sent to them and this is all done without Cumulus’ knowledge. Usaveit has, several times, made an announcement that they would delay the release of the recordings for 24 hours as a courtesy to the station so it does t affect ratings. (This never ends up actually happening)
ReplyDeleteFirst entry here:
ReplyDeletehttps://blog.usave.it/
Idk much about usaveit but I’m gonna guess it is isn’t completely legal, but there’s not really much advertising or online presence of it in a sense.
ReplyDeleteBut why would Cumulus allow some website to profit off of their content? And to post their IP in a way that damages their ratings?
ReplyDeleteThe Ticket probably gets a cut and may view the service as a brand builder.
DeleteI'd bet money that the anti-waiver argument will focus on form and substance. In form, podcasts, radio shows, live streams, etc are all people talking into a mic for entertainment purposes. So the differential is substance. WHAT is the podcast, show, stream about.
ReplyDeleteIn the lawsuit (bottom of page 9) competing business is defined as 'the same or essentially the same as the company business'.
In the lawsuit (bottom of page 10) Cumulus says THZ topics include "general news and events...primarily focused on pro sports..In the Dallas TX area..."
Gordon's twitch stream isn't primarily focused on sports because Gordon doesn't (can't?) talk sports.
IJB isn't primarily focused on sports. I listed some of their topics in another post. They may touch on sports, but they also cover, Mormom MomTictok, Kendrik Lamar, etc. I think the argument can be made that Cumulus allowed it because they didn't see it as 'essentially the same as the company business'.
And as for the rest, whether it be Sirois and marble racing or collectables, Bob writing for the Athletic, Jake writing for D Magazine, none of those are in any way 'essentially the same as" sports talk radio.
Or to put it another way, listening to the ticket can be entertaining. Listening to Petty Theft can be entertaining. But they're not "essentially the same".
And check paragraph 16 of the lawsuit. Susquehanna/Cumulus offered TDZ 'a podcast independent of The Hang Zone Branding on Susquehanna's podcast network with possible revenue sharing options, but defendants declined'.
They offered to let them do a podcast. But they weren't going to give up their intellectual property/branding of "The Hang Zone". So Dan and Jake took it without permission and everyone I've talked to that has experience with the Law/IP says TDZ is going to lose.
Cumulus was willing to let TDZ broadcast (semi-)independently. Different branding, on their network, etc. I'm convinced at this point that the 'they let others do it' is a red herring- there's a lot of sound and fury about it from the glitterati and illuminati, and it's going to get very little air-time in court.
C
Well outside my realm of knowledge but did anyone pay the guy who opened the Hang Zone store that B&D broadcasted from? Also, remember the “dumb” Starbucks bit from a few years ago? Dumb zone seems like it could be considered satire.
Delete@Surly, you're right, they never wait 24 hours before a show is available to listen to, it's more like 15 minutes after the show is done airing. I am guessing Cumulus has no idea that it was/is being done and this whole lawsuit may bring it to an end.
ReplyDeleteSurly- because at best it's a grey area. Sony vs Universal Studios way back when tried to kill the vcr. That case legalized recording for time-shifting. so 'you' can use a VCR (now a DVR) and record what TV you want for when you want to watch it. And for those old enough to remember taping songs off the radio, there's nothing to stop people from recording over the air or a stream. U save it's in the app store. Once the audio passes thru their transmitter (or internet stream) Cumulus or any radio/audio company has zero control over it. Have you looked at U save it's website? They have hundreds of shows/programs available to record. Maybe thousands. you ask 'Why The Ticket?" Why not ask "Why does the City of Palo Alto allow Usaveit to sell their content?"
ReplyDeleteSo are you paying for the content or the software? THAT is the grey area. Arguably, You're not paying for the ticket content, you're paying to use Usaveit. Just like some muckracker in California is paying to record Palo Alto city council meetings.
C
The waiver argument is interesting, in addition to being pretty much the only ones the lads have.
ReplyDeleteOne big difference here is that the material in question -- same with the UnTicket -- is Ticket material. Content of radio programs is covered by the Copyright Act, and not noncomp or trademark law. It sounds like these sites have some kind of permission from Cumulus to reproduce Ticket descriptions and accounts.
And while the UnTicket websites disclaims any connection with The Ticket, I do seem to recall that The Ticket did have some kind of negotiations with it way back when; and The Ticket has gone to The UnTicket to retrieve lost archival material in the past.
These are really fan sites. They may be "competitive" in an abstract sense, but they're at least as promotional as they are "damaging" to The Ticket's revenue, and not damaging at all to its brand, as the material is plainly "labeled" as a Ticket broadcast product.
I guess what I'm saying is that there's a difference between permitted and unpermitted "competition," if it can even be called that.
And these sites didn't agree in writing not to compete and accept money for the burden.
This comment has been removed by the author.
ReplyDeleteSo I went back through some old emails I had with Usaveit when the recordings were really bad (they record through iHeart) and the iHeart commercials would play over segments, here is what I was told about when I questioned paying for something but getting commercials during multiple segments of each show. This was in July of 2021
ReplyDelete"What you pay us for is space and bandwidth. That’s what the pricing is based on. We have no control over the content, nor do we own it. We can only record what the stations stream gives us. After talking with Jeremy (Board op..aka Big Jer) he told me it’s an ongoing issue that their engineers know of and Cat has tried to fix … but the powers that be (A Cumulus Station) could care less about the stream or the P1, I realized not even the creators of the content have ability to fix it. I do know, based on what Jeremy said, people are complaining about it and they are trying their best to fix it. Until then it is what it is. Wish I had better news for you."
So if Jake was an at-will employee for the last 7 months, does that mean his noncompete is unenforceable?
ReplyDeletehttps://www.texasnoncompetelaw.com/articles/at-will-employment-illusory/#:~:text=Because%20the%20employer%20is%20free,Not%20all%20states%20agree.
I wondered about that myself
ReplyDeleteIt would have helped if you’d have mentioned that!
ReplyDeleteThe Jake exercising his opt-out in December 2022 always seemed to be the most curious part of this whole deal to me.
ReplyDeleteShaggyBevo know all about lawsuits, don't you, old pal.
ReplyDeleteI don’t own or operate any websites and never have bruv
ReplyDeletehttps://twitter.com/notjackkemp/status/1689100363066900480?s=46&t=HHkL9Y6Y83cjHr1EMrqYLg
ReplyDeleteMeh, sounds like the at will thing doesn’t really matter if he received his consideration
ReplyDeletehttps://www.texasnoncompetelaw.com/articles/noncompete-agreements/
A friend who reads this and knows my nom de guerre here points me to section 2.3 of Jake’s contract. Short version- the employee agrees to dole employment and not work for others or themselves without the written consent of the company.
ReplyDeleteSo imagine that Cumulus lawyer, “your honor I’d like to introduce into evidence these email exchanges between employees or former employees Robert Sturm, Michael Sirois, Todd Gordon Keith, and Jacob Kemp. Now Mr Kemp, do you remember this email that you wrote asking and receiving permission to write for D magazine? You do? If you understand the sole employment clause,and allowable exceptions to it, and if you understand the non compete clause as we discussed earlier, can you explain to this court why you violated your contract by creating the dumb zone podcast?”
C
We know who Dan & Jake's counsel are. Yesterday (8/8) a pro hac vice was filed by Matthew Bruenig, member of DC bar, based in Connecticut. Local counsel is Philip Kingston from Richardson.
ReplyDeletePlainsman- just sent you a copy of the motion.
So they got a political blogger and a politician...I might have gone the traditional route
ReplyDeleteAfter reading many of the articles and news reports re Matthew Bruenig, it appears that Phillip Kingston is a reticent wallflower compared to Mr. Bruenig. The Twitter activity of Bruenig is especially interesting as it looks like he tagged Gordon Keith on a funny post 3 days ago.
ReplyDeleteThe Bruenigs are P1s and have had Gordon on their podcast multiple times. Liz's maniacal laugh has been an oft-used drop for the last year
ReplyDeleteThanks for the update/clarification Surly. My apologies if my post was fairly common knowledge.
ReplyDeleteSure, no prob. Don't know how common knowledge it is, just adding some context. Matt has also been a guest on IJB a number of times
ReplyDeleteSo basically they found some guys who would give them a freebie. Great, until it's not. Hate to be Mr. Cliche, but you usually get what you pay for. BH is a great firm, and I have found Pman's criticisms of their work here overblown.
ReplyDeleteSo what happens if they keep posting new content this week?
ReplyDeleteNothing until the TRO hearing. Then depends on the outcome of the hearing. Although I’m told by someone I feel knows what they’re talking about that Cumulus has a slam dunk case fir a TRO, especially against Jake. His contract clearly doesn’t allow for podcasting or streaming for 6 months post termination.
ReplyDeleteAnd here’s my issue with their lawyers. One is a failed politician/political gadfly who per his Twitter feed does a little bit of everything- some defense, some litigation, some zoning, etc. their other attorney is an out of stater who runs a public policy foundation. Maybe the goal is to try to invalidate non-competes. You could probably pick a better test case than radio talk show hosts to do that. And instead of 2 attorneys looking to make political statements, give me an attorney who specializes in employment law, someone with a history of overturning non compete clauses. But no, thru go with TC’s buddy Phillip…
C
I love D&J but the idea that this is some masterful gambit went away the second we know who their lawyers are. They are challenging a huge company, with guys who are not anywhere close to experts in the relevant field. What an incredible miscalculation on their part.
ReplyDeleteA local fledgling political rabble-rouser and a DC socialist blogger? Good luck with all that.
ReplyDeleteVery on brand for SD+J. We don't like the politics of this situation and we are, of course right. We're sure it will work out for us because we know better.
ReplyDeletelol - in trying to figure out why I knew the name, this is to be found in his Wiki page: "In 2020, Bloomberg News reported that Bruenig with his wife were producing a podcast that generated about $9,000 per month from listeners."
ReplyDeleteRemember when Dan used to joke about being the Rosa Parks of the carpool lane? Has the joke turned into reality and he wants to be the Rosa Parks of Non-Compete Clauses? Is there an option in the radio business to refuse the noncompete? The noncompetes in my industry are not as limiting as this one seems to be. For instance, I could leave and freelance for the term of my non-compete so long as my clients were not under contract to my former agency but I could not go to another agency in North Texas.
ReplyDeleteNon-Lawsuit related. Monty's presence was definitely an improvement for 1-3. Still not sure it will be a regular listen though. Mcleran remains stuck in the generic zone. He just doesn't seem to have much chemistry with Donnie or Blake. I think it is very strange they didn't even do any test sessions with them. Chemistry can evolve of course. It seems most solid when they are talking straight sports. I wonder if this move was mandated by someone further up the chain than Bennet and Cat.
ReplyDeletethe test sessions were Donnie trying to carry two time slots. I don’t think they had time to pair someone up with him because he was drowning and well, Sean is Sean. It’s head scratching to promote someone on tenure over talent. Justin should have been promoted.
DeleteI like Monty, but these comments crack me up. “Hey this guy who’s never regularly done a show, never had to produce content 5 days a week week in and week out, needs a full time gig over this other dude”. Part of me thinks this is a trial by fire. If Bass and mino do well, great. If they’re struggglliing in a few months, pay them off and go to plan b
DeleteC
Maybe they figured since Matt worked with JJT for years then he should be fine with Donovan
ReplyDeleteWhy would you think that? What is that supposed to mean?
DeleteUnpack that for the class, Shaggurly.
DeleteDonovan, you eat chittlins…
DeleteSince the norm show was more on the true sports side, they may thought to keep some of those listeners, they should go sports centric again
ReplyDelete@Hmm: As I've said, I don't think Baker Hostetler drafted that complaint and made those errors. They're not small errors, but they're far from being fatal errors -- just sloppiness by the standards of places I've worked (and my own, for that matter -- I'd be embarrassed).
ReplyDeleteBaker, as local corresponding counsel, should have reviewed the work and caught them, but it's not a big deal that they didn't.
Asked a buddy who is a former lawyer if he knew of the firm and he acted like they were big time. Meaningless comment but want to pretend I can contribute on the legal side lol.
ReplyDeleteThis could be fun. Mr. Bruenig is a member of the District of Columbia Bar, but his office (which apparently is his home address, according to Google Maps) is in Stamford, Connecticut. His application for admission here says he practices out of that Stamford office, but he doesn't appear to be a member of the Connecticut bar.
ReplyDeleteI doubt this will make any difference -- he'll probably be allowed to appear for them, although on its face it appears he practices in Connecticut without a license.
As noted, the McDowell/Kemp legal team is not expert, or even very experienced, in any of the areas of law featured in this case. They're going scorched earth on ideology (everyone should be free to do what they want irrespective of paid-up promises). That's very unlikely to succeed. Unless this judge has some visceral dislike of noncomps, or credits (1) the (I think) small differences between the contracts, or (2) some difference accruing to Jake's termination of his written agreement in December, or (3) the waiver argument -- they're going to get hammered, but at least they'll probably be getting hammered on the cheap.
But it's never a sure thing. As Mike Tyson said, everyone's got a plan until they get punched in the mouth (or, if you prefer, as Prussian Feldherr Helmuth von Moltke the Elder said, no plan of operations extends with any certainty beyond the first encounter with the main enemy forces).
Funny things can happen in a courtroom, unexpected things. I'd give Cumulus about a 65% chance of getting most of what it wants, but I'm not calling slam-dunk. Its case is strong, but not perfect, and its litigation record is spotty. Maybe the judge doesn't like The Ticket. Maybe the judge doesn't like noncompetes. These things shouldn't matter, but they can influence decisionmaking in close cases. But if SD+J's counsel misbehaves or spouts irrelevancies, this hearing won't last long.
I will say that this choice of counsel somewhat supports those who are saying that the lads planned to lose all along, or didn't care about losing.
Petition to stop with the SG “S”D bit
DeletePman, I assume Bruenig's practice in any other jurisdiction is in federal court only, as most federal courts require any state (or DC) admission elsewhere as a predicate for admission. I have seen many celebrity attorneys who have only one state license but are prominently practicing in other states through federal court admissions.
ReplyDeleteAnyone know when this will actually go to trial? Or rough estimate
ReplyDeleteI think Bruenig and Kingston as counsel changes things. There are a ton of people talking about Cumulus litigating D&J into submission. Those two may be working pro bono. And for those commenting on Bruenig being a "political blogger"... I am much more familiar with him as a champion of workers' rights based on his writing and podcast appearances. To me, this makes the whole thing much more interesting.
ReplyDeleteI only know of them from appearances on IJB and the local politics podcast Kingston and TC used to do. Interesting indeed.
CJK5H, in federal court, the judge will issue a Scheduling Order within 90 days of when Defendants have been served, which will layout the deadlines for Initial Disclosures, Depositions, Discovery and Dispositive Motions (Summary Judgments), Pre-Trial Hearings and the actual Trial Date. Due to the docketing backlog, usually it’s a “Trial Week” provided by the judge...and even then, one has to check in the Friday beforehand to see if still going to trial. In short, trial will “probably” be in a year or so.
ReplyDelete@Hmm: Absolutely; my experience as well. I doubt he's practicing at all; I haven't seen any mention of his lawyering anywhere, and it's not mentioned on his Wikipedia page. But if he is practicing in CT or elsewhere with representation that does not amount to appearing in federal court -- advising clients, for example, and not appearing in federal court -- he's got a potential problem if anyone cares to notice. Your assumption (that he's only doing federal court work) may be sound, but it sounds like he's been advising them as a lawyer prior to his appearance in this case. Dunno.
ReplyDeleteBut good point.
@CJK5H and @Panzerfaust: Agree with Panzer's description.
ReplyDeleteMy guess is that it will never, ever get that far. The outcome of the TRO/preliminary injunction hearings will likely bring this matter to an end. The parties will know who is likely to win, and one side will fold its tents, or the parties will reach some kind of settlement before going to war over very little money (in the grand scheme) for a year or two. An agreed judgment order will be entered, and that will be the end of it.
One thing to keep in mind is that there are two types of relief at issue here: Injunctive, which happens right away (or is denied) in the usual case, and monetary (attorney fees, damages) which can drag on. While Cumulus may care about attorneys fees, if it makes its point with SD+J on competition, trademarks, and the like, it is open to them to forget about the fees. I would not -- the fee provision is (or should be) a major deterrent to breach by an employee -- but they may waive them for old times' sake and future improved relations.
I support smiling dan name. It’s funny
ReplyDeleteI told you. They convinced themaelves that they are chanpions of the little man. That this is all about theBlake's of the world. This is their vocation. It's taken on a religious aspect. Of course, it's all a total crock, but it's how they're squaring the circle in their minds to justify the moronic way they've gone about this.
ReplyDeleteAnd there's an elephant in the room:
ReplyDeleteFootsie with The Freak.
It has not featured in this case to date, because SD+J haven't gone to the Freak and the case has not kicked up discovery yet that would reveal (if it happened) that SD+J had an offer from iHeart that they should have disclosed to Cumulus and didn't.
Even if that evidence, if it exists, stays buried because the present case goes away, if they appear at The Freak at the end of their noncompete, this lawsuit may revive or a new one filed based on breach of the "right to match" clause. Too many unknowns and imponderables to make a prediction, but the noncompete/trademark issues may not exhaust SD&J's (alleged) wrongdoing.
Do any of our attorney Confessors know if a hearing has been scheduled yet?
ReplyDeleteWe all predicted the exact attorneys they had been talking to, based only on the brand of naiveté Dan and Jake have been exhibiting in the past week
ReplyDeleteCurious as a non-WTDS P1 ... Is L4G still appearing every day?
ReplyDeleteYes L4G is still participating. Gordo made mention of him texting him this morning as well. I don't think L4G is going to give up his role on the ticket in solidarity with Dan.
ReplyDeleteIt’s something that the “screw the ticket/cumulus/I’m done/give Dan and Jake a good offer” people should take note of…the suspected friend of Dan, L4G, has continued to come on air. Likely because Dan doesn’t have the negative sentiment many online P1’s seem to.
ReplyDeleteUp until last week, Dan was sending Corby WTDS.
DeleteBruenig is a world class Twitter shitposter.
ReplyDeleteB&H is a world class law firm that specializes in suing radio talents for breach of contract and violating non-competes.
A battle of the Ages
C, I agree with the last sentence to an extent. Ticket got jammed up with apparently unexpected retirement from Norm and then Hang Zone departure at the exact same time. Options are limited, because you still have to put a product out there every day. So even though it's very unusual for the normally steady Ticket, I fully expect the possibility of large shakeups if mid-day struggles. I have decent hopes for WiP+S, but Donovan and McClearin is seeming more and more like audio poison.
ReplyDeleteI just fail to understand what they are doing snd why. They had contracts, they know exactly the terms of said contracts, snd they had agreed to the terms. You sit out your ncthen go about your business. Saving up the monies required for the sit out prior to declining tio reup. The more I read and witness, the more I come to the conclusion that Dan and Jake aren't very bright.
ReplyDeleteRight there with ya. Don’t get it all.
DeleteThings are not that cut and dry. Jakes contract specifically mentions podcasting but Cumulus has for years let him operate a for profit podcast. So you have a waiver argument there.
DeleteDan’s contract absolutely doesn’t mention podcasting.
The name dumb zone is clearly a play on Hang Zone but does Cumulus own the rights to the name Hang Zone? It was the name of a business that hosted a cumulus live show. Even if Cumulus owns that name google “dumb Starbucks” and see if you think dumb zone is satire or parody.
Has any other event in Ticket history ever captured this much attention and online conjecture?
ReplyDelete@Tricky.
ReplyDeleteNot even close.
Taking up way too much of my time and exhausting the inventory of gingers, but at least gotta stay on top of all these comments until the court rules. After which there will be another explosion of MTC reaction, and things will die down and we can get back to bashing Freak/Midday One/Midday Two.
@Plainsman - I have a ton of Gingers ready for you using AI (Stable Diffusion). What do you want, similar images to what you have already? Will see what I can come up with. How many you want? Where’s a good place to send?
Delete@CJK5H. I honestly don’t think the guys hold any animosity toward the on air talent. Dan anyway. I would hope that Jake does not either. I would imagine they are in good terms with Bob and Corby and surely they would respect the Musers who made it all possible for them to get where they were.
ReplyDeleteI respectfully disagree with Pman’s earlier assertion that their choice of legal representation shows that Dan and Jake never intended to win this. Particularly in regards to Jake. From my own impressions of Jake after listening to him on TT and particularly IJB over the years, Matt Bruenig is exactly the type of person Jake would put total faith in.
ReplyDeleteJake seems to have a very strict black and white idea of ‘smart/good’ vs ‘dumb/bad’. Basically anything that appears in publications like the Atlantic, is stridently leftist, or generally has the patina of coastal progressive academia is automatically superior, and his complete faith in it seems to validate his self image as the most ideologically pure person in any given room.
Bruenig would seem to be an embodiment of those characteristics, and as such makes perfect sense as part of Jake’s legal dream team.
TRO denied. Now this one is embarrassing, Pman. Appears to be denied entirely on counsel not providing notice or stating why notice need not be provided.
ReplyDeleteSo D&J’s attorneys knew exactly which technicalities applied but Cumulus’ big bad law firm that does this everyday didn’t.
Delete@ThePlainsman Sorry if this was answered elsewhere I'm playing catch-up... With regard to the right to match issue (specifically iHeart) if D&J disclosed an offer that includes the right to own a podcast (or other IP outside of on-air) and Cumulus refused to grant that, does that get them around any "footsie" with iHeart leading to another lawsuit?
ReplyDeleteMight be trusting their "honesty" too much, but I got the impression that they really had no intention to leave, but also wanted to be able to monetize their talk outside of the Cumulus wall (which sorta serves as a hedge if terrestrial radio is dying). It seems there is a lot of feeling here that quite the opposite was going on and they were stringing Cumulus along. Frankly, I am not sure they are smart enough to have a master plan that involved stringing the company along and instead just became convinced that monetizing their work outside of the company might take some time but would ultimately have a larger payoff.
That said, seems like a few folks here have inside sources that suggest otherwise and I definitely do not have any sources.
Carry on...
I thought it was a “slam dunk”
ReplyDeleteLosing an ex parte TRO, particularly on this ground, is not really a comment on the strength of the case or of the opposing attorney. It is a sign that ducks need to be in a row and they weren't.
ReplyDeleteYou are correct but it’s a bad look when you are the white shoe law firm with all the resources and experience them lose on a basic legal technicality.
DeleteSo does Cumulus just refile but with proper notice to D&J this time?
DeleteChris, no argument there. This would be an embarrassing call to make to Cumulus.
ReplyDeleteor an embarassing call for pman to make to the confessors
ReplyDeleteThe most Cumulus thing ever
ReplyDeleteIs this the hammer that was about to be dropped that we were promised?
ReplyDeleteI don't have any details, but this is what I'm talking about when I say Cumulus's lawyers weren't careful. I am assuming that this is not a Baker & Hostetler production, but that the documents are being prepared and strategy guided by the small Atlanta firm, and Baker is just local counsel required in cases like this.
ReplyDeleteI'll pre-say: This isn't the end of the story. They'll likely be another hearing very soon where the merits will be addressed. But this is a big black eye for Cumulus.
Pre-say annex: It's easy to look back and criticize legal decisions after a result has not been obtained. There may be factors that required the decisions I'm going to criticize below, and if so -- sorry to comment with so few facts. But it's what we do here at MTC.
I'm talking through my hat here, having zero information on the court's ruling other than what Hmm reported (thank you).
But I am absolutely stunned that Cumulus counsel thought they could get a TRO at this point without notice to the other side (that is, without SD&J's counsel being present). You may recall that earlier on this thread I assumed that at this point they were not going to seek an ex parte (that's what this means) TRO but would immediately seek a with-notice injunction after an evidentiary hearing.
Sorry to get technical on you here, but this is pretty easy to understand. Federal Rule of Civil Procedure 65(b) states:
"(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:
"(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
"(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required."
I see several missteps here if they wanted to try to get a TRO without notice, which, as you might imagine, may be issued only if there is a real damned bad emergency and there's no time to notify the other side or its counsel, which is a somewhat rare circumstance. Well, that quite obviously wasn't the case here.
CONTINUED IN NEXT COMMENT
CONTINUED FROM PREVIOUS COMMENT
ReplyDelete(1) The cease-and-desist demand was issued as soon as SD+J started The Dumb Zone. All of the "irreparable injury" started THEN. If they wanted a no-notice TRO, THAT was the time to file their complaint and motion -- they had all the facts they needed and the injury had begun and threatened to continue. But either the C+D gave them a generous deadline to comply -- I speculate 10 days -- or no deadline, and they just failed to act.
(2) When they did file the complaint, it recited that an "Application" was already on file. It wasn't. At the very least, they should have sought a TRO hearing simultaneously with the filing of the complaint. They didn't.
(3) Cumulus filed at the end of the day on Friday with no TRO sought, allowing another two days of "irreparable injury" to take place.
(4) Cumulus knew of at least one attorney advising the lads, and, more over, knew how to contact the lads themselves in the event that the lawyer they had been using wasn't the lawyer they were going to use. Notice to them personally might well have been sufficient, and I speculate that wasn't attempted either. And they knew of Mr. Bruenig's participation at least as early as MTC did, and could have telephoned him as well. Assuming that wasn't attempted, either.
So there was plenty of time for Cumulus to have teed up this TRO, and plenty of time for them to have been in touch with the lads' counsel, or to have inquired who they were going to use, or to have alerted them personally to the scheduling of the TRO hearing. That information should have been in the filing required by subsection (b) in the quoted language from Rule 65(b).
Which has two parts: First, the efforts to give notice. Maybe Cumulus counsel tried, and no one responded. A phone call or text or email would have sufficed here ("oral or written"). But second, you have to say why you're so all fired anxious to get relief that the other side shouldn't even haves a chance to respond, and this is where Cumulus's strategy did them in. They haven't behaved in an irreparably injured way, at least not of sufficient danger that it couldn't wait TWO WEEKS to require judicial redress.
I don't know what the judge said -- perhaps she had a different reason altogether for finding that Rule 65(b) was not satisfied. But this is my MTC pre-analysis -- some questionable lawyering on the side of the Big Cloud. Cumulus should be furious and SD+J partying. They may still lose big-time, but this clumsy strategy by Cumulus counsel has put it in a hole and caused the big, bad, silk-stocking white-shoe law firms to lose face with the court without defendants having to lift a finger.
I note a comment above taking me to task for wrong predictions.
ReplyDeleteAh, to the contrary. I said it was not a slam-dunk, and I also said that at this point it seemed unlikely they would seek a TRO because of the delay (which affects their ability to give notice, i.e., it gives them that ability).
But they did overreach with a without-notice TRO attempt, and it almost predictably backfired.
Neener-neener.
You're so predictable, Shaggy. I'm still waiting for you to admit you had TF thing totally wrong. Anywho. The other steel boot is about to drop. I said steel boot, not shoe. The TRO is a shoe.
ReplyDeleteWait for it. . . .
Unbe-farking-lievable. I can't believe what I just saw:
ReplyDeleteA kind Confessor has sent me the one-page TRO order. It says, almost in its entirety, after quoting the language I quoted above from Rule 65(b):
"After carefully reviewing the Application and relevant docket entries, the Court concludes that Plaintiff has failed to meet the requirements of Rule 65(b)(1)(B). Nothing filed by Plaintiff in this case makes any reference to serving notice of the Application on Defendants, much less 'certifies . . . any efforts made to give notice and the reasons why it should not be required.' [Citation omitted.] Accordingly, the Court DENIES Plaintiff's Emergency Application for Temporary Restraining Order and Request for Preliminary Injunction."
In other words:
CUMULUS COUNSEL DID NOT MAKE THE SLIGHTEST EFFORT TO COMPLY WITH FEDERAL RULE 65(b).
Even if this was Atlanta counsel's call, Baker & Hostetler was incredibly inattentive to have allowed this filing to take place without filing the certification required by the Rule.
And here's another blunder: The Application combined a request for a TRO AND a Preliminary Injunction, not just the TRO. The TRO should have been separately filed so that if it cratered, Cumulus could have proceeded to seek an expedited PI hearing. Now, however, because of the form of Cumulus's filing, there's an order on file DENYING THE PRELIMINARY INJUNCTION in addition to the TRO! Perhaps that can be remedied by renewing the application for (at least) the preliminary injunction and setting an evidentiary hearing with notice, but it's not inconceivable that CUMULUS HAS LOST ITS ABILITY TO ACHIEVE AN INJUNCTION AGAINST THE LADS UNTIL A FULL TRIAL SOMEWHERE DOWN THE ROAD. That seems somewhat unlikely to me -- I've never seen anything like this, but will defer to active federal practitioners -- but it's kind of where the current record is pointed.
Congratulations to SD+J and their counsel and everyone who's laid out their $6.90. Man, you just can't buy publicity like this.
No legal experience, but are we sure this is a good idea for Cumulus to dig in and fight? At some point would they be better off settling and getting a few concessions in exchange for allowing the paid podcast/streaming show?
ReplyDeleteThey’ve lost this TRO, and what if they lose the next? D&J continue to do the show, and reap the benefits of staying relevant due to staying in the news.
What about when the next shoe drops and D+J counter sue for unfair employment practices? Cumulus again stays in the news, and the details in that suit will not paint Cumulus in a good light.
Does Cumulus want to go through the discovery process, including depositions of current and former employees?
Now imagine all this going on while ratings begin to slip for the station. It’s not hard to see with the new mid day coupled with a new Cowboys season (The Fan could see a small jump as they are the flagship).
They may be dug in on protecting their IP, as this could set a dangerous precedent for future talent, but at some point, if the losses start adding up for Cumulus, they may have to make a business decision.
Your post got the whole package
ReplyDeleteDepends on the mood.
DeleteIt's OK, Pman. So many keyboard warriors have quite a knack for jumping on others' mistakes, missteps, and misspeaks. And in their zeal, they also and often fail to actually read and think about (for even a nanosecond) what it is they critique, attack. Living the life of a weenie pincher is difficult. Their constant desire to exhibit performative acts in order to display their ideological purity is taxing on the mind, body, and soul. Poor babies.
ReplyDelete@Surly:
ReplyDeleteWell, this is the home of responsible Ticket journalism.
I sure hope the firm’s Errors & Omissions Policy is up to date.
ReplyDeleteI’ve already said I thought they’d end up at the Freq, then said I’m pretty sure they won’t. So which one am I now supposed to admit being wrong about?
ReplyDeleteGood stuff, Javier. Say your scenario comes to fruition and now the playing field becomes level --to the point where each day part is anyone's game sans perhaps a.m. drive. Cumulus has quite the history of blowing up stations and clusters, even profitable ones if they think more money can be made in the long run through a mostly/wholly automated format (talk/sports radio by a mile is the most expensive format). Would Cumulus dare?
ReplyDeleteCumulus has always and continues to show the world just how inept it is. Barring one hellavu turnaround, I think they might have bungled, nay, absolutely fucked up and destroyed, a case that should have been a slam dunk. That is incompetence of the highest order. My guess is the end game for this case will be basically as if nothing happened, Cumulus was fine with TDZ existence, and in 4-1/2 months the "non compete" (and I purposely put it in quotes) expires, and from there either TDZ begins to attempt to build their empire in earnest and in public, or, they're at TF going up against THL 69.0 for p.m. drive supremacy.
That TF even exists. But you knew what I meant. Always with the games, eh, Bevo. Don't go changin' to try fool P, we love you for who the troll you aaaaaare. Alright.
ReplyDeleteP-Man,the “slam dunk” comment was made by C’s lawyer type friends because of their view on Jake’s non compete. It was not aimed at you. But at some armchair lawyers.
ReplyDeleteHis latest comment is “they can take more than one bite at that Apple”. That they made a misstep in not having/filing the proof of service, but as soon as they get that they can refine for the TRO and probably get it, at least against Jake.
ReplyDeleteC
all the slam dunkers, steel booters, and friends with lawyers, just hit the pause button for a little bit.
DeleteThe way I look at it, while Breunig might not be practicing, i’m sure he has a substantial network to advise him. This is just funny to me. The above mentioned throw shade at redditors and then look just like them.
Remember to stay humble and always keep safety in the back of your mind.
While they can take another bite at the apple, federal judges don't deal well with multiple bites due to attorney mistakes.
ReplyDeleteAt this point, it would likely be a "non-emergent" motion, and likely won't get it heard on an expedited basis and ex parte now that TDZ counsel has appeared and granted PHV.
The word "embarrassing" doesn't nearly capture this...
ReplyDeleteI've seen multi-million dollar per year clients lost over stuff like this... BMW-leasing mid-level associates get fired for stuff like this...
You could have called Breunig or Kingston and asked them to accept service on behalf of D&J... Go on the appraisal district website and get their addresses and send someone over there...
Is it substantively fatal, no? Is the Judge going to start the hearing giving The Cloud's lawyers the side eye...? Yep. Is the Judge's former law clerk completely mortified by her firm's incompetence...? HomerintheBushes GIF
P1 Judge: Am I correct that formal service of process was not required, just a good faith effort to give notice?
ReplyDeleteAgreed that some heads should roll, and I don't exclude either firm from this. Your name's on the pleading, you own your f-u's.
I'm just reading the text of the rule here regarding the requirements for an ex parte order:
Delete"...the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required."
Seems to me then that you have to say what (if anything) you did to serve them, and if not attempted, why service is unnecessary. Which leads me to...
Again, not a federal judge, but I would imagine ex parte orders are, depending on the judge, somewhat to very disfavored. And as you have pointed out, The Cloud didn't seem like it was in much of a hurry, which seems to undercut the "hair on fire" nature of an ex parte order.
As I've heard criminal defense attorneys say when they are in trial against the State in a case that appears to be a slam dunk for the government, "sometimes you just hope the prosecutor fumbles the ball, otherwise..."
Every argument from The Cloud that mentions "irreparable harm" will be met by Kingston and Breunig saying "Judge, they waited days to file, never called us, and didn't even file it right the first time. 'X' number of episodes were posted by my clients between the deadline given in the C&D and the filing of the application. My clients collected '$X', and attracted 'X' number of patreon customers in that time. While they claim Rome was burning, yhey could have tweeted us or slid into our DMs and asked us if we would accept service. Or, they could have told this Court why they didn't need to serve us. That they didn't do these things at the outset completely undermines their current argument."
Given they had already effected formal service of process of the Complaint, only mere notice was required for the TRO.
DeleteYes you are correct on that
ReplyDeleteWonder if we'll get a new dumb zone episode tonight?
ReplyDeleteJake said to expect the normal 1 free + 3 this week, though Dan is on the road taking daughter(s) to college over the next couple of weeks
ReplyDeleteP1 Judge echoes my thoughts. I have never seen incompetence like this in a case this strong for the team committing the blunders.
ReplyDeleteI have to wonder if Cumulus has ANY idea that the Hang Zone logo doesn't belong to them? It's the House Party logo which was barely altered to use for the show. Hard to believe they'd be allowed to keep Dan and Jake from using IP they have no ownership of themselves (and probably opened themselves up to action by attempting to claim it, although unlikely).
ReplyDeleteThe Hang Zone name comes from the store a P1 rented in a dying mall named he named Hang Zone. Bob and Dan, I think, did a live show there.
DeleteCumulus has filed a new TRO request and clarified that it is not seeking ex parte relief. I didn't check to see if it is otherwise the same as the initial request.
ReplyDeleteLooks very similar to me, though it was filed with a new supporting affidavit from Cumulus' counsel laying out service and notice details.
ReplyDeleteI don't want to be unfair to Cumulus counsel. I've characterized yesterday's filing with no affidavit regarding service as a blunder. I still feel that way, and I'm not sure where matters stand with their second filing yesterday renewing that application, but including the affidavit. I am hopeful that some federal or state court practitioner with experience in seeking or defending TROs will weigh in and correct me if correction is required.
ReplyDeleteLet's review where matters stand, bearing in mind that some of this is Your Plainsman's theater of the mind based on limited evidence:
(1) Yesterday Cumulus filed a pleading styled: "Plaintiff's Emergency Application for Temporary Restraining Order and Request for Preliminary Injunction."
Note that word "emergency."
(2) It did not contain the certification required if the application was intended to be considered by the court on an ex parte basis, that is, before the other side could be notified and respond.
(3) We do not know how this filing came to the court's attention. I see no evidence in any of the filings that the court was contacted in any way to set the matter for hearing, and the application itself did not request that the TRO be set for hearing, or not -- it was silent on what it was asking the court to do. Speaking only for my own experience, which is somewhat in the rear view mirror, I do not believe even ex parte motions are considered solely on the written filing -- there's always some kind of hearing, in person, telephonic, nowadays digital, I assume -- even if only one party is before the court in person.
(4) I'm speculating that "emergency" motions are promptly brought to the court's attention through normal court channels, perhaps even by hand-delivery to chambers. She sees it; she sees no request to set a time for a hearing; and quite reasonably assumes that the application --- characterized, remember, as "emergency" -- is intended to be ex parte. What else is she supposed to think given the silence of the application?
(5) She rejects it for failure to comply with Federal Rule 65(b)(1) requiring the certification regarding efforts to give notice and why notice is not required.
CONTINUED IN NEXT COMMENT
Uh, it ended with 5 and no further comment.
ReplyDeleteJake stated they intended to record this week, but so far all they've done is create shorts on their youtube channel with no new content created. As far as we know, there has been no TRO or injunction granted. Does this suggest either negotiations are ongoing and as a good faith measure they've ceased (and cist) while they continue, or have they gotten new representation that has suggested they stop putting things out?
ReplyDeleteCONTINUED FROM PRIOR COMMENT
ReplyDelete(6) Later in the day, Cumulus refiles their motion, styled "Renewed Application." Here's what it says now, edited to delete technical matter:
"Susquehanna clarifies herein that it is not seeking ex parte relief . . . but has served notice of the prior motion [that is, the original Application"] and the instant Motion [i.e., the "Renewed Application"] on Defendants’ counsel of record via email and overnight delivery. [Referring to the certification filed with the Renewed Application]. Hence,
Defendants and their counsel have notice of Plaintiff’s Verified Complaint and this
Motion, and Susquehanna seeks a Temporary Restraining Order as requested herein with or
without a hearing before the Court."
[Niggley point, but one I would have corrected: These pleadings are styled as "Applications," but here, they're calling it a "Motion." No practical difference, but just another instance of inattention to detail leading to potential confusion on the part of the court.]
Here, Cumulus raises the possibility that the Court could act with NO ONE showing up. As I say, maybe that's a possibility in federal court these days, but I never experienced it in federal or state court. Need some help here, practitioners.
And it does not request that the court set a time for hearing.
(7) So Cumulus is taking the position that its original filing was NOT intended to request an ex parte ruling, so hey -- "we didn't have to file that certification at all, judge you got it all wrong!" (This is probably what they told Cumulus when they got poured out by Her Honor.) As noted, its ambiguous original Application was not helpful to the court in "clarifying" what Cumulus was asking the court to do, and the court's conclusion, in the apparent absence of any other contact by Cumulus counsel to ask for or set a hearing, that Cumulus was in fact seeking a quickie ruling before the other side could respond, was entirely reasonable.
(8) The certification it has now filed does detail their efforts to bring the Complaint and the two Applications to the attention of the lads and their counsel. Which makes their failure to bring this to the court's attention yesterday morning even more baffling. Please note: It does NOT detail any efforts to notify the other side of a TRO HEARING, which tends to suggest that they did not attempt to set one, which tends to suggest that their statements to the court that the earlier filing was not intended to be ex parte are . . . disingenuous at best, complete bullshit at worst.
So now . . . is Cumulus seeking an ex parte order now, or isn't it? Its prayer for relief in this version of the Application says:
"Plaintiff respectfully requests that a TRO be immediately issued to both enjoin Defendants
from continuing to violate [etc., etc.] * * * * Susquehanna further respectfully requests that its request for preliminary injunction be set for hearing and that, after such hearing, a preliminary injunction as requested be issued against Defendants."
So, it wants an "immediate" ruling on the TRO, and a ruling on its preliminary injunction request after a later full hearing. Fine. Uh, are you saying you want a TRO hearing, or not? Earlier in the Renewed Application, they left it up to the court. See above: "Susquehanna seeks a Temporary Restraining Order as requested herein with or without a hearing before the Court."
CONTINUED IN NEXT COMMENT
CONTINUED FROM PRIOR COMMENT
ReplyDeleteAs I say, perhaps this is how one goes about trying to get the court's attention if it wants a TRO these days. But my overall impression is one of sloppiness on counsel's part and continued ambiguity in its pleadings. When I taught adversarial legal writing, among the very first rules is: TELL THE COURT WHAT YOU WANT IT TO DO. I'm still not sure Cumulus has done that here.
Can't wait to see what the judge does. If I were her, I'd set the TRO for a hearing, ZOOM or telephone if necessary, demand that the other side receive notice, reschedule it to accommodate counsel if necessary, and have that hearing.
Hey, I know this stuff is confusing. It needn't have been. I'm sorry for all the technical stuff, but when you're trying to take things away from people using judicial process, the technical stuff really, really matters, and it's really, really important, to be really, really clear, and and really, really be error-free, and really, really follow the rules and make things as easy as you can for the court.
Former labor and employment lawyer and federal law clerk checking in to make one comment and then retreat to Lurkville. In the Northern District of Texas (and in contrast to state court), it is not standard practice to request a hearing on a TRO application or any other motion. Many judges in the district prefer rule on the papers and will set a hearing only if they think one is necessary. We may or may not see a hearing; either way, to my mind, the decision not to request one in the filings to date does not reflect poorly on the drafters.
DeleteDespite administrative issues from cumulus counsel, I would be very nervous if I am D&J. They are clearly going the crusader route, which would have been fine if they picked competent local counsel (provided such counsel would have taken this case). But they are picking activist attorneys. D&J are now likely to be pawns in the effort to overturn all non compete agreements anywhere and everywhere.
ReplyDeleteThis also may explain their behavior. Why worry about the terms of the non compete if your legal strategy is going to say the non compete itself is invalid.
@Horsefeathers: Many thanks. Things have changed somewhat. I knew that most motions did not have hearings, but I did not know that now extended to TROs.
ReplyDeleteI will say that your information makes their statement that they did not intend for the application to be ex parte look even more false (almost insulting), and their failure to follow Rule 65(b) less excusable.
I stand corrected on the necessity to take steps to set a hearing. Thanks again.
@Westoplex: Agreed. Whether its filings are sloppy or not, Cumulus has gotten things back on the right course, especially in light of Westoplex's information that these motions may be decided solely on the papers.
ReplyDeleteIf the court can put yesterday's misstep behind it -- and it probably will -- SD+J would appear to be back in the soup. I haven't heard any accounts of either Jake or Dan dancing on Cumulus's grave.
I’ll pipe in. I’ve gotten ex parte TROs in some smaller Texas counties without a hearing before. In Texas each county’s local rules dictate what (if any) notice to the other side is required. Dallas, for example, requires two hours notice (last I checked). Some counties don’t. Even then, though, common practice is to notify the other side if you know they are represented. I’ve even called other lawyers before and just said something to the effect of “Heads-up, I’m heading to the courthouse to get a TRO. Come on down if you want to.” But under the federal rules the notice is in the actual federal rule itself, not the local rule. Not having a certification is just a totally unnecessary oversight.
ReplyDeleteWould getting rid of non-competes be a bad thing? There’s never been an option to not sign the non compete in reality. It’s sign or don’t take the job and since everyone in the industry makes it a requirement of the job and pays the same percentage to me it’s an illusion of a choice. It seems to protect only he side of the equation. It has always seemed odd to me that in a “free economy” people should be able to move freely between jobs.
ReplyDeleteTom Joyner was famous as the fly jock, he did mornings in Dallas, hopped a plane and did afternoons in Chicago, heck with no non competes, what’s to stop the musers from doing AMD on the ticket and PM drive on the Fan or the Freak at the same time? That’s extreme, but contracts are 2 way streets. Yes, it stops a jock from crossing the street and immediately s starting a new job with the competition. But it also locks the company into X amount for X time. The Freak is coming up in a year with meh ratings. I can guarantee there’s a suit in iheart HQ calculating how much they owe to who if they blow it up.
DeleteC
If your goal is to stand atop the barricades yelling “midday DJs of the world unite, we have nothing to lose but our non compete chains”, then their strategy makes perfect sense. The problem being, is this really the best test case to make that change? It’s in pro business Texas, and while one non compete is vague, the other is specific that Jake can neither podcast or do internet streaming for 6 months. And Jake’s contract covers all the ancillary aspects- limited to this market, 5% is specific inducement to agree to the non compete, etc.
ReplyDeleteSaddle up, boys. The court has set a TRO hearing for August 21. Responses are due by August 15, but it appears D&J have not waited and have already filed their responses. They are quite lengthy.
ReplyDeleteTo finish my previous thoughts above. A non idelogue lawyer would be meeting w TDZ and explaining they’re almost a month Into the non compete, just 5 months you’re free and clear, etc.
ReplyDeletethe ideologue lawyer is telling them how they can break the system, free all the others from the evils of non competes.
But if that lawyer also isn’t pointing out to TDZ both sides of the equation he’s screwing them. Because here’s the options as I see them.
1. Shut down, stay quiet for 5 months, show up at another station or back on patreon in 5 months and go on with post ticket life.
2., get shut down by the TRO, lose at trial, cost a lot in legal fees (remember, if they lose they owe cumulus their fees) and then still have to sit out 6 months after the trial.
3 get shut down by the TRO, win at trial and finally get back in the air late in 2024 or 2025.
4. Win the TRO, win at trial. Jake’s contract specifically stops him from doing what he’s doing,so I think the odds of this lean to the none side of “slim to none”.
If you think there’s another possible scenario, let me here from you…
C
You may be shocked, shocked to hear this, but the response exhibits high levels of snark.
ReplyDeleteDo they address Jake’s non compete clause at all? That seems to be the elephant in the room.
ReplyDeleteHearing on the new TRO set for 8/21 @ 10am. D&J's response due 8/15 and Cumulus' reply due on 8/17
ReplyDeleteLooks like Dan and Jake have filed NLRB charges against Susquehanna, both filed on 7/27:
ReplyDeleteDan https://www.nlrb.gov/case/16-CA-322654
Jake https://www.nlrb.gov/case/16-CA-322680
Not an employment lawyer, but would love to hear the opinion of one.
I am a labor and employment attorney (living in CO but licensed in TX for 20+ years now) and I think that was a savvy move on their part. It doesn’t surprise me given Bruenig was an attorney for the Labor Board
DeleteYes as I just said
ReplyDeleteLOL, D&J are citing the House Party IP in the response, this was prepared in advance and probably worked off the C+D letter as an outline
ReplyDeleteCan someone explain to me how this helps them? If it was created while they worked for Cumulus it’s Cumulus IP. I’m not sure it helps your case to be telling the court “this IP we created as employees is actually a trademark infringement on someone else’s IP “. It may be true, but unless they have an email informing Cumulus of that fact I’m not sure it helps them. And gives Cumulus more info: “they ripped off our social media accounts, they ripped off others IP, they ignored non competes, they lollygagged around the infield, they’re lollygaggers and scofflaws your honor!
DeleteC
I'm not going to have time to describe the response in great detail.
ReplyDeleteIt's interesting. It's a rather physically unattractive pleading, but that doesn't mean anything -- it's readable.
Overall impression: Not too bad on denial of facts and presentation of counter-facts. Very weak on legal arguments.
First, the lads deny that they're competing and deny that they've stolen anything that Cumulus owns. It's hard to know how some of this bears on the case, but it is not ridiculous. Cumulus will have to meet some of these arguments.
Second, in their affidavits they provide considerable detail on the course of negotiations with Cumulus, which, while it may or may not bear on violation of their contracts, is very interesting to folks like us.
Third, they don't cite much law in their counter-arguments -- they're relying mostly on denial of the material facts adduced by Cumulus.
Fourth, both Dan and Jake present detailed affidavits that really draw back the curtain on the negotiations and some Cumulus policies. If I had time I'd summarize them for you and may do so at a later time. Perhaps someone here can do that.
Finally, for now: The gee-whiz of this response is its argument that practically all of the restrictive covenants in their employment agreements -- and this argument would seem to apply to all employment agreements in any industry -- are "pre-empted" by the National Labor Relations Act. I was only able to skim this argument, which occupies the bulk of the legal argument section. It also announces that both Dan and Jake have filed unfair labor practice charges with the National Labor Relations Board.
I haven't studied this argument in detail, but it appears to be unsupported by any case law -- no court has ever held these clauses pre-empted by federal law, and to do so would revolutionize labor relations in the US. There is an internal NLRB memo cited that would purport to apply the National Labor Relations Act to noncompetes, but that is of no precedential value.
So: the lads have stirred things up.
NOTE: Joen Jo-Jo Junior Shabadoo reports above that the court has set a TRO hearing for August 21 at 10 am -- over ten days from now. In other words -- no immediate emergency relief for Cumulus.
This is the true cost of Cumulus's stunning mistake of yesterday -- it gave the lads the opportunity to put their foot in the door before it slammed on them ex parte, and they've filed a substantial factual response that will probably give the court some pause.
I'm taking a break from this contretemps for a few hours. If anyone would like to summarize the lads' response in greater detail, please have at it.
D&J getting around the non-compete as "trying to get better conditions for the Ticket employees" that was the basis of that memo that was linked a few days back.
ReplyDeleteAnd they focus on waiver as we expected, citing the Unticket, IJB, and USaveit
A main point of anti-competition is they are getting paid subscribers on patreon and not advertisers like the Ticket. The Ticket has no option to purchase podcasts directly from the Ticket
They also cite the NLRB and those cases because NLRB has exclusive jurisdiction to some of the issues.
Even if Cumulus ultimately may prevail, this isn't quite a slam dunk for a TRO/PI
One note: I say above that no court has ever held that non-competes governed by state contract law are pre-empted by the NLRA. I don't know this for a fact. Should have said that I've never encountered one and a quick Google search doesn't find one.
ReplyDeleteIt is a trend, however, among the federal agencies. The NLRB memo I mention and that the lads cite is very recent, and the Federal Trade Commission is considering a ban on them. Personally, I am very, very doubtful that this rather radical incursion into state law will go anywhere, but Dan and Jake are going to ride it for all it's worth.
I think it is a standing argument negating one of their essential elements, you can prosecute IP infringement if you can't prove you own said IP. If you don't own something how can you claim infringement. The proper standing is with the owners of the House Party IP
ReplyDeleteCertainly not an IP expert, but I just don’t understand how Dan and Jake saying “this logo we created or started using when we were employees (which makes it Cumulus IP) is actually an IP infringement of someone else’s IP (house party) and therefore we shouldn’t be held responsible for stealing from our former employer because we stole it from Kid and Play”
ReplyDeleteIt’s an argument, I’m just not sure it’s a good one.
If they somehow argue and win a legal case that "revolutionizes labor relations" - they would very soon thereafter find Jake's dead body, caused by excessive flagellation.
ReplyDeleteThis whole thing has taken on a sense of religious fervor for DnJ.
ReplyDeleteI’m curious if there’s anything in there about Jake being an at-will employee since December 2022
ReplyDeleteI’m not sure it makes a difference. If he’s at will they still have to deal with Paragraph 3 of Jake’s contract, paraphrased: “all terms and conditions…shall continue in full force…shall be binding on both employee and company”. So they keep paying him his base plus the 5%, he keeps agreeing not to compete for 6 months.
DeleteC
Another order issued today was referring the case to mediation on 8/22/2023. A day after the hearing on the TRO/PI. The judge will not likely enter a ruling until she gets a notice of unsuccessful mediation from the mediator J Robert Arnett, II. Looking at his website and LinkedIn he doesn't have much mediation experience but is knowledgeable in commercial litigation and IP, but mentions nothing about any labor or employment law background.
ReplyDelete@Surly nothing in the Kemp Declaration or motion about the at-will status or no contract since that time
ReplyDeleteIt states: Jake worked for The Ticket on and off since he was a high school student until June 30, 2023, when he ceased employment by not going to work. Dan and Jake submitted written notices of resignation to Plaintiff on July 17th, 2023.
I've come to the conclusion that all parties involved are a bag of assholes.
ReplyDelete@Colorado P1 and others: Great info and thanks for keeping us up to date on pleadings.
ReplyDeleteColorado P1: Does that pre-emption argument have the slightest chance? I think "no," but would be grateful for an expert's opinion.
For one thing, the Fifth Circuit would never affirm throwing out all restrictive covenants previously governed solely by state law on pre-emption grounds. (I think.)
So is this going to mediation on 8/22?
ReplyDeleteBeen out of town for the last week. Anything going on? What’s up?
ReplyDeleteForbidding employees from discussing compensation, and coercing employees to sign noncompetes seem like, really bad
ReplyDeleteMonumentally stupid. And yes it appears mediation on 8/22
DeleteI still think TDZ and their lawyers are being too cute.
ReplyDeleteFor example, D&J negotiated raises for support staff that once they quit, 'plaintiff promptly refused to honor those raises'. If Cumulus said 're-up and we'll bump Blake by 10K", they're under no obligation to if you don't re-up.
They claim they wanted to 'embark on other media content creation activities', which company claimed may infringe on 'whatever media business it night one day engage in'. But they (TDZ) are forgetting their own video where they said they didn't know what they were going to do. I can see Cumulus's point, without knowing what it was, they were thinking it might be competing. And so wouldn't agree to it.
nowhere do they address Jake's non compete that specifically bans podcasting or internet streaming.
Dan claims the @dumbzone twitter account is a personal account. But I thought his personal account was @bracketdan. Sure you can have more than one personal account, but if Hangzone is Cumulus IP, if that account was created while they worked there, arguably it's Cumulus's account.
And a question for Colorado P1- in the NLRB section there's a lot where they say that D&J's arguments could be upheld by the NLRB, and therefore plantiffs claims should be dismissed. Is that normal? Wouldn't it make more sense to see if NLRB agrees THEN drop those claims?
And there seems to be a certain catch 22 in this- they claim that commenting on work conditions of other employees is allowed per the NLRB, but the non-disparagement clause is about inducing or encouraging others to denigrate the employer. If they say 'we think Blake is underpaid' and people respond 'he is, eff cumulus!!!" have the encouraged or induced the disparagement?
I'll just say this. It's going to get ugly.
It’s pretty weird how quiet this place got after the responses got posted
ReplyDeleteAnd 8/22 is when the other esteel toed boot drops. DnJ aren't the only ones gaming. This is exactly what Cumulus wanted to happen. Go ahead COP1 or any of the other lawyers and let everyone in on what goes diwn during sbd why Cumulus wants to go to mediation. Hint: You can make the case much more personal, and really set things up fir a court case. Cumulus too can go into negotiations in baf faith.
ReplyDeleteI think most have tired head from all the legal stuff, Surly. Most have had their weeks on end fill of it all. Not for the reasons you're implying, viz., things might turn out in TDZ's favor so there's disappointed Confessors. You've always been such a canoe.
ReplyDeletePman: I can't claim to be an expert on preemption in this context as it's never come up in my company or law firm practices; I'm only familiar with the cases on NLRA preemption in situations involving union issues. And although we've sent plenty of C&D letters, there's only been one time in my 15+ years when my company actually filed a lawsuit for violation of a non-compete and theft of confidential business information. But my instinct is the same as yours, that the preemption argument seems fairly unlikely to succeed legally, but see below.
ReplyDeleteC Minus: I think filing the Unfair Labor Practices charges now and putting those issues out front and center to the Court was good strategy. It forces Cumulus to defend itself on multiple fronts at the same time, and it wouldn't surprise me if it is part of the reason Judge Johnson ordered the parties to go to mediation. The NLRB can do whatever it wants regardless of the pending lawsuit, and if it finds they were discharged in violation of the NLRA then it can and will award reinstatement and full back pay as a remedy (actually it would be and NLRA Administrative Law Judge making that decision in the first instance, after the NLRB Regional Office files a Complaint alleging violations of the Act). I've been in that situation (as my company being the loser) and it sucks.