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."
Okay, look: Some people are very interested in the technical ins and outs about what’s going on in the lawsuit and want to know my opinions and those of other attorneys (I’m a former attorney) who have weighed in here at MTC.
Some people aren’t and find it all bullshit, or, more charitably, deadly dull.
That’s fine.
If you are in this latter group, just skip my next several comments.
(1) It is very difficult to say what to make of this hearing, because we (that is, I) don’t know what the court actually did. Did it deny Cumulus’s “emergency” motion for a temporary restraining order/preliminary injunction? If so, why? Did it do nothing or defer ruling or take the matter under advisement, which would have the effect of permitting Dan and Jake to continue issuing podcasts, since they were under no current order forbidding it?
What took place at the hearing itself? We got a brief account of Jeff Catlin’s testimony of lost sales, but, as someone pointed out, that’s as likely – more likely – to have been evidence of the change in middays caused by their departure (which Cumulus is not asserting was illegal) than their podcasting.
I’ve seen no order resulting from the hearing on the sites available to me. Will the court even issue an order? If so, will it be accompanied by an opinion setting forth her reasons for doing what she did, or perhaps some findings of fact and conclusions of law? (Probably not the latter.) Is she waiting for the parties, or one of the parties, to present a draft order to her?
For all of these reasons, trying to read something into yesterday’s result (Dan and Jake permitted to podcast for now, at least) is near-impossible. If anyone has more information on what took place, what the judge said, who testified other than Cat, whether the lads’ counsel’s out-of-court statements were referenced – anything – MTC would be grateful.
(2) Having said all that: This was certainly a provisional victory for Dan and Jake as far as the entry of equitable relief at this stage of the proceeding is concerned. Congratulations to them.
(3) However, for reasons I set forth at appalling length in the last post, Dan and Jake are almost certainly going to lose their motion to dismiss. This is because that motion is based almost entirely on their NLRA/NLRB preemption argument, which, if the court thought it had even a little merit, would have caused her to stop the proceedings while she considered it (motion to dismiss or no motion to dismiss). She certainly would not have held Friday’s full evidentiary hearing. This means the case will very likely go forward unless there is a settlement or Cumulus voluntarily dismisses the case.
(4) Why would it go forward? Didn’t Jake and Dan win the case? Well, no; they apparently defeated Cumulus’s motion for EMERGENCY injunctive relief. But Cumulus has a continuing case for damages, which will be heard by a jury (but see point 6), and its request for PERMANENT injunctive relief survives and will be considered at the full trial of this case, currently scheduled for December. However, among the factors the court will have considered in denying a preliminary injunction (if that’s what she did) is whether it is likely that Cumulus will succeed at trial. It is unlikely that Cumulus will have evidence in December that it couldn’t come up with now that would cause the court to reverse itself (again, if it made any ruling at all) and issue an injunction in December.
(5) But there’s another reason to go forward: Cumulus is also seeking money damages for breach of contract, infringement, and other wrongdoing. To take the most vivid example: The lads breached their contracts, Dan arguably, and Jake certainly. That breach of contract gives rise to an action for damages, which was not at issue yesterday. (Unless the court held the noncompetes and other provisions alleged to have been breached invalid for one reason or another – seems unlikely, but I don’t know.) If the contract terms were valid, the breach of contract and infringement counts will be tried to a jury.
(6) Ah, but has Cumulus blundered yet again? Counselors, check me on this, but it appears that Cumulus has not to date filed a jury demand. Now, it’s not too late – Rule 38(b) provides that a demand must be filed no later than 14 days “after the last pleading directed to the issue is served.” That would probably be Jake’s and Dan’s answer to the complaint, which need not be filed until after the court decides their pending motion to dismiss. So Cumulus has some time to get this done. But in my years of practice I never saw a single complaint in federal or state court (at least, any filed by firms where I worked) that did not include a jury demand for all issuable triable to a jury (i.e., damage claims), and it’s an easy thing to forget to do if you haven’t done it in your initial filing.
(7) There has been a lot of chatter here about Jake’s and Dan’s scrappy lawyers having whupped up on the two silk-stocking Cumulus firms. There is some truth to this. Two thoughts:
FIRST, as noted, despite their preliminary victory Friday, the lads are almost certainly going to lose on their Big Legal Theory of preemption absent some direct federal intervention in the case. It seems unlikely that the NLRB would seek to intervene in this case as their counsel has suggested, but it could happen. But putting aside whether their legal theory was sound, the smart thing their lawyers did, ethically or not, was to leverage Cumulus’s earlier stumbles into putting this matter off for ALMOST A MONTH-AND-A-HALF between the filing of the complaint and the hearing on their claim of “irreparable injury.”
SECOND, Cumulus gave them a lot of help. It’s dangerous to second-guess lawyer strategy, and we don’t know how much of what went on in Cumulus’s case originated in-house and how much was controlled by the lawyers. If one of them were sitting here, perhaps he could explain to me why they did things the way they did, and I’d say, hmm, OK, I can see that. But based only on what we see in the filings and other strategies, and with apologies to counsel if I’m way off base on any of this:
(a) Cumulus should have gone to court immediately with a complaint and proper motion for a temporary restraining order when the first podcast dropped, or even sooner, but they waited almost two weeks. Did the cease-and-desist letter give them some deadline that kept Cumulus from running in immediately? Dunno, but if so, that was another mistake.
(b) Although not fatal, their complaint was sloppy in failing to cite the Texas noncompete statute and spelling their client’s boss’s name wrong a couple of times. And failed to include a jury demand. It’s just not a good look if you want the court to think you’re on the ball.
(c) Cumulus’s “Emergency Application for Temporary Restraining Order and Request for Preliminary Injunction,” which both the court and I read as a request for an ex parte hearing and hurry-up TRO (although Cumulus apparently took no action to try to schedule one with the court), did not include the necessary certification regarding notification to the other side, causing the court to INSTANTLY deny the motion. , and causing Cumulus to come in and, to cover (what I believe to have been this major) mistake both with the court and, I suspect, their client, they took the position that they were not seeking an emergency ex parte order. But then they filed a renewed application that included the necessary certification, but, since they said they weren’t really seeking an ex parte order, the court set the matter for hearing several days later rather than scheduling an emergency hearing. And so Cumulus starts out the case with a huge loss and a delay caused by their own procedural error. Come on.
(d) Cumulus agreed to a delay in the hearing that included an agreed temporary restraining order knocking the lads off the air and social media for a little over a week, until the next hearing. But when THAT hearing got delayed based on the parties’ representations that mediation was continuing, Cumulus failed to require an extension of the agreed temporary restraining order. Allowing Jake and Dan to – well, to do whatever they wanted, and making Cumulus look like it didn’t really care all that much about an injunction.
So where does that leave us? We won’t know until the court issues some kind of order resulting from the September 15 hearing, and perhaps not even then. But until we do, we can guess at two main things: (i) Cumulus’s loss, so far, had at least as a contributing factor decisions and mistakes that negated their claim of a need for emergency injunctive relief and gave Dan and Jake time to prepare their defense and file lots of briefs. (ii) Dan and Jake have, in effect, if not by a specific ruling, already lost their preemption defense with this court, if not with the NLRB.
I guess i’m hung up still on the noncompete as it pertains to paywalling a podcast with 5k patrons. I don’t know who the anus is on to prove damages that weren’t inflicted ultimately by Cumulus programming decisions. I’m also still somewhat confused that IJB, 50% paywalled, was not a non starter or that Cumulus didn’t officially request Jake to stop doing it after his latest contract was signed. It seems to the layman if podcasting is competition to your product, you would at minimum own stake in it. They advertise other podcasts on their network, I’m just trying to make this all make sense.
Right now it just looks like a vindictive local entity flexing its muscles using the corporation it’s under to do the heavy lifting and warn other people under contract that they’re unemployable for a while when they leave.
In any case, great analysis. Keep doing what you do playboy.
All of this is way out of my lane, so I greatly appreciate the analysis and insight from Pman and others of that law-school ilk. Thanks for this summary
^^^^^^ So strange. Did that feel good to express, to get off your chest? You think you're rooting for the little guy. But you're not. Go do some research on the Legal Dream Team and their individual backgrounds and their ties.
I thought I was rooting for the guys who were looking to put an end to unfair labor practices, in this case non-competes that only serve to benefit the big guys at the expense of all the little guys.
Why don't you enlighten me on their individual backgrounds and ties?
^^^^^^^Very predictable. If anybody has a contrary opinion to the party line on MTC we must always complain about said opinion because my god Cumulus can do no wrong.
I don’t get the “party line” comment or contentions that Pman is a shill for Cumulus. Where in the above recap of the case is there any evidence of bias? I think it is a well thought out analysis of where we are and how we got here. Yes, it contains opinions, but I don’t see those opinions slanting in one direction more than the other.
You can disagree with non-competes, and hope the D&J case leads to them being deemed unenforceable, but I think it unfair to attack someone & call them a corporate shill simply for summarizing the current law and applying it to the facts in front of us. Pman didn't write the statutes and case law, so it is unfair to criticize him for simply interpreting the words of others.
I would never call PMan a shill but I do believe he holds white shoe law firms with too much regard. I’ve worked for one and had no idea what I was doing. The partner I answered to was cheating on her husband so she was far to busy to review my work. I once filed a motion that I copied from a previous motion and I forgot to update the footer. Every single page had the wrong client and matter printed in the bottom corner.
To this day (years of litigation later) I’m still the only person who caught it and I’m not bringing it up to anyone at this point…
Point being, almost all lawyers are just dudes who are not particularly special even if they work at a fancy law firm.
I don't think he's a Cumulus shill, I think he's a corporate bootlicker. Some of his "legal analysis" or "fact laying" on this matter has indeed been factual and fair. But despite every decision or circumstance thus far going in Dan and Jake's favor, he has consistently asserted that D&J's legal strategy is flawed and each of these are just minor setbacks that will result in a big win for Cumulus.
Still waiting for Hail Storm to tell us about the Legal Dream Team's individual backgrounds and ties. Is he going to tell us that they're all Soros puppets?!?!
Hail storm, I must admit that I am rooting for D&J. So to make sure I am not getting duped as you insinuate, I did a brief Google search on their lawyers.
Phillip Kingston - former Dallas city, councilman and far left politico. His ideology is more synonymous with helping the little guy as opposed to corporate interests.
Matt Bruenig - former lawyer at the NLRB. Another far left politico. His work history and ideology would appear to be consistent with helping the little guy.
Frank Cawley - he appears to have been a partner in a small Addison law firm. However, according to the court records, he now appears to be a solo lawyer. I didn’t find anything that suggests he is a corporate shill.
Elizabeth Griffin - senior attorney at a large national law firm. I’m guessing by the size of the firm she works for, they probably represent corporate interests the majority of the time. However, she does not appear to be one of the main lawyers running the show for Dan and Jake.
I don’t see anything in the background of these lawyers that indicates that there is some ulterior motive at play. Can you please enlighten me as to what you are referring to when you say we think we are rooting for the little guy but we’re not?
The item that appeared this morning -- the first one, anyway -- is what I might have expected at the close of business Friday: A minute order noting that the hearing was held. It does not mention whether any order was entered or delivered orally from the bench. So we don't know anything more of interest than we knew Friday, but more filings may be forthcoming today or shortly.
In the prior thread someone posted a link to an article from a legal publication saying that the judge denied the Ticket’s injunction. Is that not accurate?
It is true that I spent most of my career representing business interests.
The point of view that noncompetes are nothing but oppression of "the little guy" is understandable. And, misused as to lower-level employees, they can be very unfair and should probably be done away with.
But I have a feeling that those who think they're never justified have never put their own capital at risk in running a business -- even a big giant business -- or starting one. Human talent, be it scientific, entertainment, artistic, management -- is capital. It's a valuable thing in which companies invest very heavily. It's not evil to protect that investment for shareholders -- many of which are the "little guys" that noncompete abolitionists claim to champion.
American law has recognized this in permitting companies to forbid competition from former employees for a limited period of time and under other limiting circumstances. Noncompetes don't mean "you can never compete ever, or anywhere." Frequently, but not always, this also protects the former employer's trade secrets entrusted to the departing employee. (Although Cumulus has alleged that Dan and Jake got high-level info, that doesn't seem to be a big factor here.)
If you think noncompetes are never justified, then your argument is not with me, but with state legislatures (a Texas statute expressly authorizes noncompetes under circumstances which were met in this case), courts, and American contract law as it has existed for decades, all of which, I should add, have taken steps to lessen their harshness to former employees.
Dan and Jake agreed to those terms, and they violated them. They embraced a defense -- federal preemption -- that I believe be without merit on policy, constitutional, and statutory grounds and that will be unsuccessful in the long run, but it's damned imaginative and it will be interesting to see how it plays out. This court is certainly behaving as if she has summarily rejected that defense, although no formal ruling has been entered.
But my opinion that the defense is, and should be, a loser, does not mean Cumulus should have won their motion for injunctive relief or that Dan and Jake have bad lawyers or that Cumulus has good ones. There are lots of factors that go into the decision on injunctive relief, too many and too subjective to pass judgment on here, and we don't know what the court emphasized in doing what she did (or didn't do). But it at least seems as though the court thought Cumulus had not met its burden of proof, which includes, among several other elements, proving "irreparable harm," which, as noted at length above and elsewhere, their own legal moves tended to undermine.
So yeah: I think Cumulus had the better of its argument at the outset, which as I think I have said a dozen times, they frittered away with puzzling strategic moves (or failure to move). I also think Dan and Jake's LEGAL defense (preemption) is unmeritorious. But it is not their only defense, and they may eventually prevail or achieve a favorable settlement.
Preemption is ONE of their legal defenses. And it appears it doesn’t even matter since cumulus can’t convince a Republican appointee to side with business. You keep saying they violated a non-compete but if it were that simple surely the court wouldn’t be allowing them to keep posting podcasts and collecting money.
Just admit that you’ve been biased from the jump (smilin Dan, I’m sure is a term of endearment and not meant to be pejorative) and wrong.
@Rizz Khalifa: I haven't seen anything referencing yesterday's hearing.
But recall that the court DID reject Cumulus's initial request for emergency injunctive relief on technical grounds, and I do see some news stories on that from a month or so back.
@Rizz: Hey, man, thanks a lot. Someone at Reddit cheated the paywall and cut and pasted the whole article, which may be found at the Ticket Reddit page under the headline "Ohhh, noooo. Whaat Happened?"
The article states that the court did not believe that Cumulus had established "irreparable harm," as several here at MTC have posited as a likely weakness in Cumulus's case, and pointed out (as did a Confessor on the prior thread, I believe) that Cumulus presented testimony of a loss of ratings/revenue, which it attributed at least in part to the lads' podcast.
The judge also implored the parties to get together and settle this thing.
The article also notes that this isn't the end of the noncompete case -- it may still be prosecuted as a breach of contract.
Chris, that's about the most innocuous error ever. I see far worse on a daily basis. I understand your point that lawyers are just people, but I think you inadvertently undermined it by showing that you caught and cared about an error most wouldn't even change if they saw it right before filing. In other words, you are white shoe material. Congrats.
So your opinion is most attorneys, who go to college for 4 years, law school for 3, and then pass the bar exam are too lazy to care about the quality of their work? I think, perhaps, you’re just telling on yourself my friend.
Since the issue here turned out to be "irreparable harm," we can see clearly why Cumulus's odd lassitude at the outset of the case cost it at least one strategic advantage.
At least at the initial -- that is, ex parte or very early TRO stage of a noncompete proceeding, IRREPARABLE HARM FROM VIOLATION OF A NONCOMPETE IS PRESUMED without a hearing. That presumption may be rebutted, as Dan and Jake apparently did on Friday.
But if Cumulus had gone in immediately when it became clear that Dan and Jake were going to violate their noncompetes -- even before the first one dropped, and certainly no later than the day, or within a day or two, after the first one dropped, and filed the appropriate papers to get an ex parte hearing with the court, it would have been entitled to that presumption and, more than likely, gotten its temporary restraining order. But Cumulus (1) delayed, and (2) either didn't seek an ex parte order, or, as the court believed, intended to seek an ex parte order but didn't follow the rules to get one.
Having gotten the TRO at the outset would not necessarily have changed the result on Friday, but it would have enabled Cumulus to start from strength, and not have had egg on its face with the court.
“It’s a clone of the show they were doing on The Ticket,” testified Jeff Catlin, operations manager for the station.
Kemp and McDowell disputed that characterization. The Hang Zone, McDowell said, was, like other Ticket shows: a slick, “well-produced machine.” The podcast, on the other hand, has “no format at all. … We’re just two guys.” Kemp agreed. “The format [of The Dumb Zone] is quite different, and, in my opinion, not very good,” he testified.
Just curious if Cat testified that ratings are down 45% middays and 30% overall do you think his sales team members are reporting accurate numbers to prospective clients?
I do respect the fact that you (P Man) have at least acknowledged that your career has made you fight for and perhaps even have a slight bias towards the interest of corporations. I think the current socioeconomic climate in the country is not incredibly sympathetic to the motivations and best interests of mega corporations and conglomerates. I will add that you yourself have called members of DZ too "woke" for your tastes sometimes.
I wonder if a lot of the back and forth here is not down to the talent on The Ticket currently or the entertainment value of DZ or the legal merits of non competes. But more a reflection of age of the most involved listeners and general attitude towards capitalism at all costs. I'm 42 and a former P1 who has been clean and sober from the station for almost two months now. I dig DZ but more importantly, I support the cause of workers fighting back against restrictive and short sighted corporate-friendly contracts.
I think a lot of the passion both here and in the Reddits of The Ticket and DZ are a reflection of a bigger issue and one that a lot of working class folks have faced in their professional lives. While corporate litigation may have been your side of the street, a hell of a lot of us were the folks hoping to stand up against all the money and power and lawyers to fight for the little guy.
If you complain that something is “woke” you’re just telling everyone that your an asshole. All “woke” is is the golden rule. Treat others how you would like to be treated. Anything past that is bullshit and you know it.
People devote their lives to restricting the lives of others while not wanting those same restrictions to apply to them.
And yeah, a guy who still prefaces every post with a picture of a woman he wants to objectify might be an old boomer who doesn’t fully see women as equal to men. And I’m not even pointing out that oftentimes these objects of the great PMan’s lust are of an age that McClearin would be interested.
@ Out of Demo - I continue to be puzzled about Cat's ratings statement. He could be talking about the next numbers that we have not seen yet. However if he is lying or "embellishing" those numbers for the sake of the TRO hearing (asking as a non-lawyer), can that lie come back to bite him or Cumulus in December? Or is everything that happened Friday only relevant to the TRO hearing and is not relevant to the December trial date? Thanks
Joel, if your 1:03 comment is directed towards me, my answer is absolutely yes. I see so many careless mistakes from junior lawyers that I work with and from opposing counsel. And of course, I make mistakes too. I like to think my mistakes are not made out of laziness, but I can't say I never failed to read a judge's local rules before filing something in error as a younger lawyer. It happens.
If the biggest weight on your shoulders as a lawyer is that you neglected to update a footer in a random motion several years ago, I think you're doing alright.
Now, is there a reason that this opinion would get your hackles up?
Joel, although I am a big fan of MST3K, I must say you are showing your ass just a bit.
"You keep saying they violated a non-compete but if it were that simple surely the court wouldn’t be allowing them to keep posting podcasts and collecting money."
That is not true at all. There is a rather large distinction between the extraordinary relief of temporary injunction and success on the merits. The fact that you do not seem to grasp that suggests you should perhaps take a breather from criticizing the legal analysis of others.
Oh my, Joel Robinson, aren't you THE instantiation of a first-rate mind.
You lovely little Jacobite, you. You'll be one of Gill O Teen's first customers. It's always the truly pure ideologue who suffers for their hypocritical Elders' scam. "Elders?" you say. Yes, Joel Robinson, Elders. You hold deeply religious convictions. Oh, I hear you, "No! I do not!" Au contraire, mon ami. You are a zealot, a perfect, beautiful, zealot.
Question for everyone else but this guy. Does anyone actually find anything this doucher writes clever? He writes like what I think “Cruz from Aledo” must write like.
The legal analysis here has been fundamentally sound from the very first filing, especially based on the limited information we have about the case. Pretty much correct all the way down the line. And qualified and conditioned appropriately when info is lacking.
I welcome Mr. Robinson's legal analysis.
By the way, I should have mentioned: The article excerpted over at Reddit also states: "The parties and their lawyers have agreed before Judge Scholer not to discuss the pending litigation publicly, including, in the case of McDowell and Kemp, on any future episodes of The Dumb Zone."
"The point of view that noncompetes are nothing but oppression of "the little guy" is understandable. And, misused as to lower-level employees, they can be very unfair and should probably be done away with.
But I have a feeling that those who think they're never justified have never put their own capital at risk in running a business -- even a big giant business -- or starting one. Human talent, be it scientific, entertainment, artistic, management -- is capital. It's a valuable thing in which companies invest very heavily. It's not evil to protect that investment for shareholders -- many of which are the "little guys" that noncompete abolitionists claim to champion."
This sums it up pretty well. Maybe, just maybe, I don't think of people as human capital ripe for exploitation by capitalists.
Additionally, stock ownership is strongly correlated with household income, formal education, age, marital status and race. Only 29% of those under $40k annual income own any form of stock whatsoever. The top 10% of income earners own 70% of the market.
Your whole response is a great example of why I said you are a corporate bootlicker. You show great sympathy towards the companies and their "human capital," as if the people they employee should be thankful to have been graced with such employment by the benevolent company. The workers offer value as well.
"If you think noncompetes are never justified, then your argument is not with me, but with state legislatures (a Texas statute expressly authorizes noncompetes under circumstances which were met in this case), courts, and American contract law as it has existed for decades, all of which, I should add, have taken steps to lessen their harshness to former employees."
I didn't say they're "never justified," but the cases where they should be allowed are rare and not relevant to this conversation, in my opinion.
I can have arguments both with the "state legislatures....,etc" and with you at the same time. You maintain that this issue is settled law when the very question at hand in the case you're spilling countless pixels opining on is whether or not it really is settled law.
"But if Cumulus had gone in immediately when it became clear that Dan and Jake were going to violate their noncompetes -- even before the first one dropped, and certainly no later than the day, or within a day or two, after the first one dropped, and filed the appropriate papers.........."
This is another area where I accuse you of corporate bootlicking, or Chris is more accurate that you're just a big fan of white shoe firms. Cumulus clearly messed up with the original TRO, but you've hesitated to even accept that, claiming that perhaps it's some sort of strategy. You give all benefit of doubt to Cumulus and none to D&J.
You've also claimed that Cumulus gave Dan and Jake some help by waiting so long to file their initial suit and TRO/PI. Perhaps, we can imagine a world where corporations are not "good."
7/24 - First Dumb Zone podcast 7/25 - Cease and Desist sent 7/27 - D&J file NLRB complaints of overly broad NCs 7/27 - D&J read C&D as part of listener feedback, making it clear they will not cease, nor desist. 7/28 - NLRB sends notice to Cumulus as charged part (on Friday) 8/4 - Cumulus spends the week putting a suit together and files on Friday 8/8-8/10 - D&J file amended charges to the NLRB accusing Cumulus of filing their suit in retaliation for D&J practicing Section 7 protected activity.
Certainly not definitive, but the timeline does raise some questions about the delay in Cumulus filing suit, and doing so in an uncoordinated fashion.
Pman, I think it would be funny to just copy and paste your many quotes on this to show how incredibly wrong the above poster is. Poor fool has been so blinded by filtering everything through politics that he can't see he agrees with you.
@Nothing to see here: I was sort of thinking the same thing.
In any event, enough. We've all had our say. Let's get on to more important topics, if indeed there is anything more important, like whether Donovan and Matt have chemistry.
* * *
But I do have a Dumb Zone-related question: Is the Dumb Zone still offering the occasional free program? I was going to tee one up on my bike ride today, see what all the fuss was about, but it looked like all recent offerings required a subscription.
I was also a little bit surprised to see subscriptions still hovering below 4900. I thought there would have been a spike after the agreed TRO expired on August 29. Perhaps subscriptions will pop up now that it's clear that the show is very unlikely to be taken off the air as a result of the lawsuit.
By the way, one more technical bit of information:
Cumulus could appeal the denial of its preliminary injunction motion right now. Cumulus's pleadings are a little ambiguous, but it looks like it combined the TRO and preliminary injunction request, and the minute order recites that the PI request was part of the hearing. Assuming that yesterday's ruling was on the request for a preliminary injunction:
28 USC sec. 1292 states that courts of appeal shall have jurisdiction over appeals from "[i]nterlocutory orders of the district courts of the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions[.]" (An "interlocutory" order is an order issued by a court before it issues the final judgment in the case.)
To prevail on such an appeal, Cumulus would have to show that the district court "abused its discretion" or applied an incorrect legal standard, which are considered standards deferential to the trial court and tough to meet.
Based on what little we know about the factual record made at the trial, it seems unlikely Cumulus could meet that standard. Practitioners, check me on this, but I don't believe that filing such an appeal would stay any part of the case unless the court so ordered. My ass is guessing that Cumulus will not appeal.
They aren't putting out free episodes while litigation is pending (my guess is because it's hard to say that a podcast behind a paywall with 5k subs that drops at night is in direct competition with radio). And the sub count was like 4700-4800 a few weeks ago so it's a healthy clip for new subs.
The fact that someone would think "boomer" is an insult is pretty wild.
I guess when righteous conviction goes up against fundamental lack of knowledge, go with the righteous conviction.
Really, if you aren't an experienced attorney, your opinion on the D&J legal proceedings is about as useful as tits on a boar. So the Sam Hales and Joel Robinsons of the forum can take a seat while their human capital commodifying, corporate boot-licking betters are speaking.
Yes - surely those who don’t value humanity are the “betters”. I called you a boomer not because of your age, which I don’t know, but because you are a selfish ass. You don’t know what you’re talking about and however you choose to present it your time is done. Now go get your shine box.
Or maybe your view of what valuing humanity means isn't universal truth. That would take quite a stout amount of humility to admit, though, so I can understand doubling down on snark and pithless mockery instead. Now go ahead and hit me with the next 30-year-old reference, mister non-boomer.
@Nothing That makes absolutely no sense whatsoever. Please, unpack your last comment for the class. Do that, then we'll have a disussion on Boomers and their direct correlation to so-called wokeness.
I would like to remind Joel & everyone like him that this isn’t the subreddit where you can say crap with immunity. If you’re not going to act like civilized human beings, then you’re not welcome here. (Also, 1st time poster here.)
Ty Walker has left The Mothership. There really is a sea change happening. I'm beginning to think the Confessor who said he'd heard from several that The Musers are either in their last months/year on-air has good info.
Thing of it is, KTDK, and I'm not pushing back at you in any way, so please don't take it as such, but his most likely 45-55k-ish Ticket salary is actually around the average US salary for f/t workers. You can find some data that will show as high as 75k, but such data is rather easily debunked. My point is, between his earnings and his wife's, I imagine they are living a nice middle to slighlty, slightly upper-middle class life. Not a damn thing wrong with that. Now add onto this that he was working in a profession that is pure fantasy for most people. It's akin to saying, "I play music for a living." He talked about and reported on sports for a living for the majority of his adult life. That's amazing. He did what he loved. Now he's moved on. Yes, it might be a money thing. But it also might be something else. We don't know. Ty, in his always professional manner, did not elaborate. Like always, he did his A+ work, finished his workday. But this time, instead of saying to the effect, "see you tomorrow," he said, "so long and thanks for everything." And he added, "don't stop listening to the best station ever." What a fucking mensch. Cheers to you, Ty. I'll miss the shit out you, my man.
Ty has gotten passed over for hosting and producer roles in the latest turnover. Writing was on the wall for him that the Ticket was not going to promote him beyond Ticker guy / weekend host. Time to move on unfortunately.
Yes and what you need to remember is Median is the point in which half make more and half make less. It is not a normal distribution though with a much longer distribution tail on the right side of the curve meaning there are many men that make many multiples of 72k (such as myself) where as the guys on the right hand side of that curve (Ty Walker Ticket salary) are tightly clustered from 35k to 72k. He wants to be a multiple of 72k guy at this point in his life. You can't blame him.
Decided to hit up Reddit & considering how Ty is the most vocal out of the on-air staff towards his hatred of the subreddit (& I don’t blame him at all), a lot of the tributes are nice. It surprised me, to say the least.
Ratings question - the better the Cowboys do the less I listen. If there is nothing to second guess then each show just repeats the same ideas and replays the same audio. I can’t listen as each show becomes the same. If the Cowboys continue to be so good will the Ticket’s ratings suffer?
Absolutely not. If anything, they will go up. Not trying to knock your opinion down, just a feeling. Look at that surge that 105.3 had when they were good a few years ago. It’s a common effect.
I would say 105.3 surge was because there was carryover from people using the station to listen to the games. My question is more about ratings driven based on if the games create radio content or not. I would say if there are no problems to discuss with the Cowboy’s games then ratings could suffer.
They've won 12 games each of the past 2 years too. They will eventually lose a few games and the stakes will be higher if they're considered championship contenders so I'd expect people to still tune in. The only example where listeners could decrease would be if they ever won multiple championships like the Chiefs and the regular season is just a time-waster until the playoffs start.
as someone who does Graphic Design for a living I wish him well but he's insane. It once again makes me wonder how possibly toxic the culture at the Ticket really is if someone would leave it for graphic design, because there are few more toxic fields than design and advertising. I know he has a tee public store so if he's got that running to where he can make a living of that and be his own boss it might be a step up from the ticket.
Hardline did a big sendoff segment on his last show. Mino and Sea Bass did one the following day. Word on the street is that Cat threw a fit over it, because the sweet spot was doing a segment about someone who doesn't work there.
Nice to see what your boss thinks about you 1 day after you leave the job that consumed most of your adult life!
KDF, there is no more toxic field than the arts. Yet it doesn't stop people from quitting their stable, decent or even well paying jobs to pursue their passion. No matter how many, say, lifer musicians asvuse them not to. I've seen folks in their 50s do it. If you heard Ty's farewell speech on Diamond Talk, you heard his love for The Ticket.
The court's order says pretty much nothing except that Cumulus's motion for a temporary restraining order and preliminary injunction was denied because they failed to prove each element required for emergency equitable relief. But we knew that.
What it doesn't say is that Dan and Jake's preemption defense, which goes to her jurisdiction to hear the case at all, has any merit. She ignores it entirely in this order.
The only interesting thing about the order is that it says a fuller opinion with reasons for the decision will be forthcoming. That's where the real action will be. Perhaps she will say something about that defense, and we'll find out where she thought Cumulus's proof was lacking.
A little unclear why it took a week to get this nothing order out after the hearing. Not sure whether Cumulus's time to appeal will run from the hearing, at which time an oral ruling (itself fully valid and final) was presumably rendered ("I'm denying Cumulus's motion"), or from the date this written order finally appeared in the public record.
The court has set a status hearing for Monday the 25th at 9:30. Only an attorney from each side is required to attend.
Guessing the court will further jawbone the parties on settlement, ask them about further discovery. Maybe have a chinwag about preemption. Perhaps set a further pretrial schedule. Cumulus must still respond to the motion to dismiss and the lads will have a chance to file a reply. Assuming the court denies the motion to dismiss, the lads will have to file a formal answer to the complaint.
As we have noted , while the lads defeated Cumulus's motion, which does give them an overall strategic and even psychological advantage going forward, it does not mean they have won the case. It goes on.
“The hosts of ‘The Dumb Zone’ are not, in fact, being dumb,” Block said. “Part of having agency in your own economic life is being able to take your skills, join with your co-workers, and bring them to where you think they’re best utilized — and in this case the hosts were being sued because they were trying to do that.”
They have talked in recent episodes about whether or how mermaids would tan, the induction of NBA legend Dirk Nowitzki into the Naismith Memorial Basketball Hall of Fame, how the phrase “leave room for” became associated with dessert and which male celebrity the heterosexual male hosts would have sex with, if they had to pick one.
Outside of the legal stuff that it is outside of my expertise. I think the 10-3 has improved with the start of the football season. MM is much better talking straight sports than guy talk, I think. I do wonder what changed that MM is able to do "Just the sip." when Jake said they had been told they couldn't do reviews of breweries. Even improved MM doesn't do much for me so I'm still pretty much out and on to podcast or Sirius after the Musers sign off.
That WaPo article reads more like a product of Matt Bruening’s contacts with sympathetic writers at his wife’s former paper than anything else. Our heroes got everything they could have wanted
Reddit’s reaction, despite them worshipping D&J like Jesus, is surprisingly mixed. Huh.
Not sure if anyone has mentioned this yet, but on a (slightly) unrelated note, Sirois has won the Observer’s Best Local Radio Personality award: https://www.dallasobserver.com/best-of/2023/sports-and-recreation/best-local-radio-personality-17520045. Ticket V. D&J won the Best Local Media Drama award: https://www.dallasobserver.com/best-of/2023/sports-and-recreation/best-local-media-drama-17520049.
Double post, forgot that it wasn’t in my name. Reddit is mad at the Observer because they said that Skin was one of the best radio personalities in DFW. Yeah, it’s a cult.
Putting all the legal, who's winning, The Man v The Little Guy stuff aside, the WaPo piece does not paint an interesting picture vis a vis TDZ content. In fact, it comes off as Ron and Don trying to do a Musers' bigfoot plays hoops segment.
I've been of mind from the onset of this situation that whoever "wins" isn't the story. The story is, once the dust settles, what does TDZ look like going forward? More so, a year, two years from now. Early days, for sure. But there are indicators that post pissing natches, hoopla, hype (local/national and local social media), and after the lawyers and their connections/PR machine are gone, the actual day to week to month to year content might not live up to its perceived standards. Indeed, in of all places, reddit Ticket and Dumb Zone, criticism of TDZ's content is beginning to pop up.
Sorry you never got passed Dick and Jane, Scott. Oh, Jonah! You perfect fanboy, you. Sam, are there? It's me, the other Sam. Knife still firmly stuck in my back.
I'm not a lawyer but was involved in a Communication Workers of America vs Verizon case back in the 90s. It was over who the company decided to layoff and them not abiding by the contract to do so according to seniority. It was well over two years before the NRLB reviewed the case. Like all .gov organizations, it moves at it's own pace.
The difference here is that this case could serve as a test case for the memo the NLRB general counsel put out in May regarding overly broad noncompetes. They need to swear in one more board member to be at their full 5, which a democratic majority.
I’m not. TDZ is usually somewhat entertaining. But if you’re a WaPo subscriber and read that article what’s the TDZ USP? What’s their unique selling point that’s going to get me to subscribe? So I can hear them tell me which athlete they’d have sex with? They’re show now isn’t much different then a ton of DFW area podcasts, they just are bigger names. And this may be a spicy HSO, but I think the show was better on radio. More production value, more people to interact or comment with, but most importantly, formatting. Radio forced them to do a tight 15 minutes on (subject). Last week they did Romo for what seemed to be an eternity. It’s like the pod has allowed Dans worst traits, his ability to bog and meander, to flourish. C
Article in the Observer, nothing new really just rehashing of recent events. https://www.dallasobserver.com/news/the-ticket-vs-the-dumb-zone-battle-draws-national-attention-17553204
As far as the last few filings are concerned, @stapleman01 and @Not Legal EGL, there is not much to analyze. They either note that a hearing has taken place, without comment on what took place, and there's that one court order that does little more than deny Cumulus's motion without stating the reasons (but promising that an opinion will be forthcoming).
A recent filing notes that the transcript of the September 15 hearing has been electronically filed, but it will not be available to the public for at least three months.
@Radio Knob 133: It would be possible for the NLRB to intervene in the court action. Governmental entities are allowed to intervene in court cases under Federal Rule 24(b)(2). However, they don't have the right to intervene -- the court would have to allow it.
Personally, while Dan and Jake's "federal preemption" defense, and the internal NLRB lawyer memo upon which it is based, have gotten a lot of ink, I think it is very unlikely that the NLRB would seek to intervene here, and certainly not anytime soon.
First, let's make sure we know what it would mean if the NLRB "stepped in." That does not mean they would come in and take the case away from the judge and start running things; rather, the NLRB would be aligned with Dan and Jake as a party, subject to the court's continued jurisdiction and rulings.
(1) The legal theory upon which the preemption defense is based requires a substantial shift in federal-state relations, a federal takeover of an area of common law and state statutory law that has existed for a long, long time. As I have noted several times, it sure looks like the court is rejecting it, at least informally. Intervention would require this court to actually decide the issue in a case in which the NLRB was a party, and if it rejected the theory it would be a real blow to the NLRB's legal theory even its own halls. Less so if the NLRB isn't an actual party to the decision.
(2) Dan and Jake are doing just fine without it. When federal agencies intervene, they tend to pick their spots carefully, and you usually see it when there is a huge disparity between the parties' likely fortunes in the case. No need to step in if the court isn't (so far) enforcing the noncompete.
(3) As others have noted, the NLRB itself has yet to advance this theory, and they're unlikely to do so until the NLRB changes its makeup, which is some ways off.
(4) Dan and Jake have already filed their unfair labor practice charges. They've provided the NLRB with the opportunity to introduce their legal theory without fear of judicial interference and rejection (at least at the NLRB level). No need to imperil that by involving itself in what looks like a garden-variety employee noncomp dispute.
So while the lads' lawyers threats of the NLRB bigfoot coming storming into the case may come true -- I'm no expert in this area -- it just doesn't seem very likely to me, and less of an advantage fo the lads than people seem to be thinking.
in house's link goes to a brief order by the court that the parties have advised her that the case has been resolved. The parties are to file voluntary dismissal papers (likely a voluntary dismissal with prejudice under Rule 41(a)(1)(A)(i) or a joint stipulation by both parties under Rule 41(a)(1)(A)(ii).
As far as the practical result is concerned, this must be regarded as a victory for Dan and Jake.
We may never know the exact terms of the settlement -- I'm guessing there's a confidentiality clause in the settlement agreement which means neither party can disclose it -- but if anyone has access to NLRB dockets, it will be interesting to see if the lads' unfair labor practice complaints are withdrawn. My guess is yes; hard to imagine Cumulus folding its tents with a potential entire adversarial proceeding outstanding. But a lot of what Cumulus did in this case is puzzling. So, it's not a certainty that the NLRB case will go away.
But the court did hint pretty strongly that she was going to rule against Dan and Jake on their preemption argument -- which means their motion to dismiss would fail, which means the case would be tried for damages in December -- to a jury, if Cumulus would have remembered to file a jury demand.
So, despite the lads' resounding victory on September 15, there remained enough risk and expense on the table for them to fuel interest in settlement on their part. And, as mentioned before, Cumulus didn't want any additional bad things to happen to them in the case, so they were very incentivized to get rid of this dog.
If there’s a good thing to come out of this, it’s that the P1 discourse will hopefully come to an end. I know I harp on the subreddit a lot, but they have acted like Cumulus is the worst company on the planet, Cat is like Hitler, Bennett abuses animals, & Dan & Jake are gods during this whole ordeal. Everyone there should be ashamed of themselves for their actions & I hope they learn from this lesson they’ve been taught many, many times. It’s one of the worst subreddits on that site, & that is saying a whole lot. I’m glad this is over.
I was neutral throughout this whole thing. It was appalling to see their behavior towards anyone not named Dan & Jake. I don’t defend nor praise Cumulus. I, however, am not for people on there hijacking what is supposed to be a place for discussion into a soapbox for praising D&J like some sort of deity & everyone else being the worst human being in America. That’s half of the reason why I don’t like the Reddit page. And if that makes me a bootlicker, then excuse me for pointing out that 90% of the people there acted like animals.
Lol Javier, lol. But I’ll point out that Kingston said their case was a slam dunk for TDZ. Why do you settle a slam dunk? Why not win?
I read the transcript. I think she telegraphs that TDZ could lose if Cumulus gets better evidence. And if they lose, Dan and Jake are liable for damages and Cumulus’s legal fees. I don’t see TDZ wanting to risk that. Will be interesting to see what the agreement is. Do they continue to podcast? Give up the social media accounts? C
Why would you continue, as a 2 man LLC, to litigate? What would they win monetarily? I guess that's what I don't get with your comment. You're still not admitting that by not going to trial, they in fact won. Cumulus couldn't and can't prove irreparable harm or at least won't by December. An accountant at Cumulus was probably tasked with estimating the cost of litigating through trial with a 50/50 chance of losing. It's probably not that hard of a decision, as the Cumulus lawyer even said their non compete would end mid January. There was nothing about the non compete being extended until the case was resolved.
Let it go, let it go. D&J showed others the way if they decide to depart. When the next ratings books come out, The Musers and Hardline are going to be more valuable to them than they've ever been. Will be interesting to see what happens when Cumulus asks them to take a pay cut.
D&J said on a very brief podcast today that they would be back to usual starting tomorrow. No indication of any pause or any change to what they’ve been doing thus far
In my courtroom experiences there’s always a cloud hanging over both parties. Do we really want 12 jurors deciding this?
Two observations:
From the transcript- Cat comes off as a poor witness. Seems like some prep from the attorneys could have solved some of that. Lot a good look.
Jake and Dan’s legal strategy: make bold claims, air out some dirty laundry. Washington post article. Lots of publicity - make Cumulus call your bluff, then settle.
Yes we don’t know the terms of the settlement, but the short podcast that came out today let’s the listener know big shows are coming this week, so they can continue to podcast in some form.
If the settlement was to keep podcasting, D&J already had that for a the next few months. I always suspected any settlement would hinge on the right of first refusal that’s in D&J’s contracts
Well I guess that answers that. They dropped a short pod tonight to let everyone know that there will be a major pod announcement tomorrow along with a very long mega pod which I take to mean probably a few hours worth. I think the major announcement will be that they are adding a producer which could very well be Blake. I don't think Cumulus has the stomach to now file a Cease and Desist against Blake if that is the case. To sum up: D&J will not be paying Cumulus legal bills, will not be ceasing nor desisting, will not drop the Dumb zone name, will not suspend their social media accounts they were accused of appropriating for themselves, will not take a 6 month sabbatical all together, will not shy away from segments that closely emulate their Hang Zone program. Other than that Cumulus really stuck it to them.
Reading the transcript, I think the Cumulus lawyer messed up by initiating their argument that listeners only have some much bandwidth in their lives to dedicate to listening to audio mediums and thus Dumbzone infringes on that time. This opened up D&J's team to then point out that all the other hosts podcasts, twitches, Unticket replays, etc. would be just as harmful and competing. Also Cat really did not come across well (as mentioned previously).
I don't understand the outrage here. It's pretty obvious they thought Bob was worth more, he got moved to drive time. I think Dan is great, but if I had to rank the two for my listening, I would put Bob ahead of him. Sure, it is not what the P1 wants to hear, but it is a business decision from upper managements point of view.
Now that the war is over and hopefully it won’t be as contentious as both the station and DZ get back to business. But I have to wonder if Cumulus genuinely understand the nearly three decades of goodwill and listener loyalty that their own management has made evaporate overnight. The testimony of Cat and DB will do nothing to score any points with P1s who are not loving the new lineups. Once this litigation started, it seems like Dan and Jake just had to kind of get out of the way and give Cumulus and management enough rope. It’s pretty astonishing to see something as pencil pusher-y as this end up being so impactful that it takes an immediate 30% chunk out of their ratings. It also has made the round table segment where George got angry sound worse and worse (minus Bob’s very heartfelt and emotional reaction). The defensiveness and bravado haven’t aged well in light of recent developments.
I’m betting Cumulus ultimately spins this as “we got some sort of agreement that they won’t join a rival station for x>6 months,” but I’m betting that tomorrow’s announcement shows that they never intended to do so anyway.
I never understood why most everyone here thought that was their end-game. Looks like Cumulus/Ses is going to get that gesture and not be on the case that ends most non-competes, and the guys get their $35k/month. Have to think a head is going to roll somewhere for letting any of this happen.
Okay, look: Some people are very interested in the technical ins and outs about what’s going on in the lawsuit and want to know my opinions and those of other attorneys (I’m a former attorney) who have weighed in here at MTC.
ReplyDeleteSome people aren’t and find it all bullshit, or, more charitably, deadly dull.
That’s fine.
If you are in this latter group, just skip my next several comments.
(1) It is very difficult to say what to make of this hearing, because we (that is, I) don’t know what the court actually did. Did it deny Cumulus’s “emergency” motion for a temporary restraining order/preliminary injunction? If so, why? Did it do nothing or defer ruling or take the matter under advisement, which would have the effect of permitting Dan and Jake to continue issuing podcasts, since they were under no current order forbidding it?
ReplyDeleteWhat took place at the hearing itself? We got a brief account of Jeff Catlin’s testimony of lost sales, but, as someone pointed out, that’s as likely – more likely – to have been evidence of the change in middays caused by their departure (which Cumulus is not asserting was illegal) than their podcasting.
I’ve seen no order resulting from the hearing on the sites available to me. Will the court even issue an order? If so, will it be accompanied by an opinion setting forth her reasons for doing what she did, or perhaps some findings of fact and conclusions of law? (Probably not the latter.) Is she waiting for the parties, or one of the parties, to present a draft order to her?
For all of these reasons, trying to read something into yesterday’s result (Dan and Jake permitted to podcast for now, at least) is near-impossible. If anyone has more information on what took place, what the judge said, who testified other than Cat, whether the lads’ counsel’s out-of-court statements were referenced – anything – MTC would be grateful.
(2) Having said all that: This was certainly a provisional victory for Dan and Jake as far as the entry of equitable relief at this stage of the proceeding is concerned. Congratulations to them.
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ReplyDelete(3) However, for reasons I set forth at appalling length in the last post, Dan and Jake are almost certainly going to lose their motion to dismiss. This is because that motion is based almost entirely on their NLRA/NLRB preemption argument, which, if the court thought it had even a little merit, would have caused her to stop the proceedings while she considered it (motion to dismiss or no motion to dismiss). She certainly would not have held Friday’s full evidentiary hearing. This means the case will very likely go forward unless there is a settlement or Cumulus voluntarily dismisses the case.
(4) Why would it go forward? Didn’t Jake and Dan win the case? Well, no; they apparently defeated Cumulus’s motion for EMERGENCY injunctive relief. But Cumulus has a continuing case for damages, which will be heard by a jury (but see point 6), and its request for PERMANENT injunctive relief survives and will be considered at the full trial of this case, currently scheduled for December. However, among the factors the court will have considered in denying a preliminary injunction (if that’s what she did) is whether it is likely that Cumulus will succeed at trial. It is unlikely that Cumulus will have evidence in December that it couldn’t come up with now that would cause the court to reverse itself (again, if it made any ruling at all) and issue an injunction in December.
(5) But there’s another reason to go forward: Cumulus is also seeking money damages for breach of contract, infringement, and other wrongdoing. To take the most vivid example: The lads breached their contracts, Dan arguably, and Jake certainly. That breach of contract gives rise to an action for damages, which was not at issue yesterday. (Unless the court held the noncompetes and other provisions alleged to have been breached invalid for one reason or another – seems unlikely, but I don’t know.) If the contract terms were valid, the breach of contract and infringement counts will be tried to a jury.
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ReplyDelete(6) Ah, but has Cumulus blundered yet again? Counselors, check me on this, but it appears that Cumulus has not to date filed a jury demand. Now, it’s not too late – Rule 38(b) provides that a demand must be filed no later than 14 days “after the last pleading directed to the issue is served.” That would probably be Jake’s and Dan’s answer to the complaint, which need not be filed until after the court decides their pending motion to dismiss. So Cumulus has some time to get this done. But in my years of practice I never saw a single complaint in federal or state court (at least, any filed by firms where I worked) that did not include a jury demand for all issuable triable to a jury (i.e., damage claims), and it’s an easy thing to forget to do if you haven’t done it in your initial filing.
(7) There has been a lot of chatter here about Jake’s and Dan’s scrappy lawyers having whupped up on the two silk-stocking Cumulus firms. There is some truth to this. Two thoughts:
FIRST, as noted, despite their preliminary victory Friday, the lads are almost certainly going to lose on their Big Legal Theory of preemption absent some direct federal intervention in the case. It seems unlikely that the NLRB would seek to intervene in this case as their counsel has suggested, but it could happen. But putting aside whether their legal theory was sound, the smart thing their lawyers did, ethically or not, was to leverage Cumulus’s earlier stumbles into putting this matter off for ALMOST A MONTH-AND-A-HALF between the filing of the complaint and the hearing on their claim of “irreparable injury.”
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ReplyDeleteSECOND, Cumulus gave them a lot of help. It’s dangerous to second-guess lawyer strategy, and we don’t know how much of what went on in Cumulus’s case originated in-house and how much was controlled by the lawyers. If one of them were sitting here, perhaps he could explain to me why they did things the way they did, and I’d say, hmm, OK, I can see that. But based only on what we see in the filings and other strategies, and with apologies to counsel if I’m way off base on any of this:
(a) Cumulus should have gone to court immediately with a complaint and proper motion for a temporary restraining order when the first podcast dropped, or even sooner, but they waited almost two weeks. Did the cease-and-desist letter give them some deadline that kept Cumulus from running in immediately? Dunno, but if so, that was another mistake.
(b) Although not fatal, their complaint was sloppy in failing to cite the Texas noncompete statute and spelling their client’s boss’s name wrong a couple of times. And failed to include a jury demand. It’s just not a good look if you want the court to think you’re on the ball.
(c) Cumulus’s “Emergency Application for Temporary Restraining Order and Request for Preliminary Injunction,” which both the court and I read as a request for an ex parte hearing and hurry-up TRO (although Cumulus apparently took no action to try to schedule one with the court), did not include the necessary certification regarding notification to the other side, causing the court to INSTANTLY deny the motion. , and causing Cumulus to come in and, to cover (what I believe to have been this major) mistake both with the court and, I suspect, their client, they took the position that they were not seeking an emergency ex parte order. But then they filed a renewed application that included the necessary certification, but, since they said they weren’t really seeking an ex parte order, the court set the matter for hearing several days later rather than scheduling an emergency hearing. And so Cumulus starts out the case with a huge loss and a delay caused by their own procedural error. Come on.
(d) Cumulus agreed to a delay in the hearing that included an agreed temporary restraining order knocking the lads off the air and social media for a little over a week, until the next hearing. But when THAT hearing got delayed based on the parties’ representations that mediation was continuing, Cumulus failed to require an extension of the agreed temporary restraining order. Allowing Jake and Dan to – well, to do whatever they wanted, and making Cumulus look like it didn’t really care all that much about an injunction.
So where does that leave us? We won’t know until the court issues some kind of order resulting from the September 15 hearing, and perhaps not even then. But until we do, we can guess at two main things: (i) Cumulus’s loss, so far, had at least as a contributing factor decisions and mistakes that negated their claim of a need for emergency injunctive relief and gave Dan and Jake time to prepare their defense and file lots of briefs. (ii) Dan and Jake have, in effect, if not by a specific ruling, already lost their preemption defense with this court, if not with the NLRB.
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thanks PMan, the ginger is absurdly hot.
ReplyDeleteI guess i’m hung up still on the noncompete as it pertains to paywalling a podcast with 5k patrons. I don’t know who the anus is on to prove damages that weren’t inflicted ultimately by Cumulus programming decisions.
I’m also still somewhat confused that IJB, 50% paywalled, was not a non starter or that Cumulus didn’t officially request Jake to stop doing it after his latest contract was signed. It seems to the layman if podcasting is competition to your product, you would at minimum own stake in it. They advertise other podcasts on their network, I’m just trying to make this all make sense.
Right now it just looks like a vindictive local entity flexing its muscles using the corporation it’s under to do the heavy lifting and warn other people under contract that they’re unemployable for a while when they leave.
In any case, great analysis. Keep doing what you do playboy.
All of this is way out of my lane, so I greatly appreciate the analysis and insight from Pman and others of that law-school ilk. Thanks for this summary
ReplyDeletePman,
ReplyDeletei ain't reading all that
i'm happy for u tho
or sorry that happened
"It’s dangerous to second-guess lawyer strategy"
Says the person who has second-guessed every single aspect of the defense's strategy
^^^^^^ So strange. Did that feel good to express, to get off your chest? You think you're rooting for the little guy. But you're not. Go do some research on the Legal Dream Team and their individual backgrounds and their ties.
ReplyDeleteHail Storm,
ReplyDeleteI thought I was rooting for the guys who were looking to put an end to unfair labor practices, in this case non-competes that only serve to benefit the big guys at the expense of all the little guys.
Why don't you enlighten me on their individual backgrounds and ties?
^^^^^^^Very predictable. If anybody has a contrary opinion to the party line on MTC we must always complain about said opinion because my god Cumulus can do no wrong.
ReplyDeleteI don’t get the “party line” comment or contentions that Pman is a shill for Cumulus. Where in the above recap of the case is there any evidence of bias? I think it is a well thought out analysis of where we are and how we got here. Yes, it contains opinions, but I don’t see those opinions slanting in one direction more than the other.
ReplyDeleteYou can disagree with non-competes, and hope the D&J case leads to them being deemed unenforceable, but I think it unfair to attack someone & call them a corporate shill simply for summarizing the current law and applying it to the facts in front of us. Pman didn't write the statutes and case law, so it is unfair to criticize him for simply interpreting the words of others.
I would never call PMan a shill but I do believe he holds white shoe law firms with too much regard. I’ve worked for one and had no idea what I was doing. The partner I answered to was cheating on her husband so she was far to busy to review my work. I once filed a motion that I copied from a previous motion and I forgot to update the footer. Every single page had the wrong client and matter printed in the bottom corner.
DeleteTo this day (years of litigation later) I’m still the only person who caught it and I’m not bringing it up to anyone at this point…
Point being, almost all lawyers are just dudes who are not particularly special even if they work at a fancy law firm.
Joey Jo-Jo Junior Shabadoo
ReplyDeleteI don't think he's a Cumulus shill, I think he's a corporate bootlicker. Some of his "legal analysis" or "fact laying" on this matter has indeed been factual and fair. But despite every decision or circumstance thus far going in Dan and Jake's favor, he has consistently asserted that D&J's legal strategy is flawed and each of these are just minor setbacks that will result in a big win for Cumulus.
Still waiting for Hail Storm to tell us about the Legal Dream Team's individual backgrounds and ties. Is he going to tell us that they're all Soros puppets?!?!
Hail storm, I must admit that I am rooting for D&J. So to make sure I am not getting duped as you insinuate, I did a brief Google search on their lawyers.
ReplyDeletePhillip Kingston - former Dallas city, councilman and far left politico. His ideology is more synonymous with helping the little guy as opposed to corporate interests.
Matt Bruenig - former lawyer at the NLRB. Another far left politico. His work history and ideology would appear to be consistent with helping the little guy.
Frank Cawley - he appears to have been a partner in a small Addison law firm. However, according to the court records, he now appears to be a solo lawyer. I didn’t find anything that suggests he is a corporate shill.
Elizabeth Griffin - senior attorney at a large national law firm. I’m guessing by the size of the firm she works for, they probably represent corporate interests the majority of the time. However, she does not appear to be one of the main lawyers running the show for Dan and Jake.
I don’t see anything in the background of these lawyers that indicates that there is some ulterior motive at play. Can you please enlighten me as to what you are referring to when you say we think we are rooting for the little guy but we’re not?
This place has become Reddit Jr
ReplyDeleteNew docs finally droppin'
ReplyDeleteThank you, LEGLEGL.
ReplyDeleteThe item that appeared this morning -- the first one, anyway -- is what I might have expected at the close of business Friday: A minute order noting that the hearing was held. It does not mention whether any order was entered or delivered orally from the bench. So we don't know anything more of interest than we knew Friday, but more filings may be forthcoming today or shortly.
In the prior thread someone posted a link to an article from a legal publication saying that the judge denied the Ticket’s injunction. Is that not accurate?
ReplyDeleteRe: Me being a "corporate bootlicker."
ReplyDeleteIt is true that I spent most of my career representing business interests.
The point of view that noncompetes are nothing but oppression of "the little guy" is understandable. And, misused as to lower-level employees, they can be very unfair and should probably be done away with.
But I have a feeling that those who think they're never justified have never put their own capital at risk in running a business -- even a big giant business -- or starting one. Human talent, be it scientific, entertainment, artistic, management -- is capital. It's a valuable thing in which companies invest very heavily. It's not evil to protect that investment for shareholders -- many of which are the "little guys" that noncompete abolitionists claim to champion.
American law has recognized this in permitting companies to forbid competition from former employees for a limited period of time and under other limiting circumstances. Noncompetes don't mean "you can never compete ever, or anywhere." Frequently, but not always, this also protects the former employer's trade secrets entrusted to the departing employee. (Although Cumulus has alleged that Dan and Jake got high-level info, that doesn't seem to be a big factor here.)
If you think noncompetes are never justified, then your argument is not with me, but with state legislatures (a Texas statute expressly authorizes noncompetes under circumstances which were met in this case), courts, and American contract law as it has existed for decades, all of which, I should add, have taken steps to lessen their harshness to former employees.
Dan and Jake agreed to those terms, and they violated them. They embraced a defense -- federal preemption -- that I believe be without merit on policy, constitutional, and statutory grounds and that will be unsuccessful in the long run, but it's damned imaginative and it will be interesting to see how it plays out. This court is certainly behaving as if she has summarily rejected that defense, although no formal ruling has been entered.
But my opinion that the defense is, and should be, a loser, does not mean Cumulus should have won their motion for injunctive relief or that Dan and Jake have bad lawyers or that Cumulus has good ones. There are lots of factors that go into the decision on injunctive relief, too many and too subjective to pass judgment on here, and we don't know what the court emphasized in doing what she did (or didn't do). But it at least seems as though the court thought Cumulus had not met its burden of proof, which includes, among several other elements, proving "irreparable harm," which, as noted at length above and elsewhere, their own legal moves tended to undermine.
So yeah: I think Cumulus had the better of its argument at the outset, which as I think I have said a dozen times, they frittered away with puzzling strategic moves (or failure to move). I also think Dan and Jake's LEGAL defense (preemption) is unmeritorious. But it is not their only defense, and they may eventually prevail or achieve a favorable settlement.
Everyone good?
Preemption is ONE of their legal defenses. And it appears it doesn’t even matter since cumulus can’t convince a Republican appointee to side with business. You keep saying they violated a non-compete but if it were that simple surely the court wouldn’t be allowing them to keep posting podcasts and collecting money.
DeleteJust admit that you’ve been biased from the jump (smilin Dan, I’m sure is a term of endearment and not meant to be pejorative) and wrong.
@Rizz Khalifa: I haven't seen anything referencing yesterday's hearing.
ReplyDeleteBut recall that the court DID reject Cumulus's initial request for emergency injunctive relief on technical grounds, and I do see some news stories on that from a month or so back.
See my point (c) in the 12:14 comment above.
This is the article that was posted about Friday’s hearing. Most of it is paywalled but the part that’s not appears to say D&J won.
ReplyDeletehttps://texaslawbook.net/ticket-denied-tro-against-ex-hosts-sports-podcast/
@Rizz: Hey, man, thanks a lot. Someone at Reddit cheated the paywall and cut and pasted the whole article, which may be found at the Ticket Reddit page under the headline "Ohhh, noooo. Whaat Happened?"
ReplyDeleteThe article states that the court did not believe that Cumulus had established "irreparable harm," as several here at MTC have posited as a likely weakness in Cumulus's case, and pointed out (as did a Confessor on the prior thread, I believe) that Cumulus presented testimony of a loss of ratings/revenue, which it attributed at least in part to the lads' podcast.
The judge also implored the parties to get together and settle this thing.
The article also notes that this isn't the end of the noncompete case -- it may still be prosecuted as a breach of contract.
Chris, that's about the most innocuous error ever. I see far worse on a daily basis. I understand your point that lawyers are just people, but I think you inadvertently undermined it by showing that you caught and cared about an error most wouldn't even change if they saw it right before filing. In other words, you are white shoe material. Congrats.
ReplyDeleteSo your opinion is most attorneys, who go to college for 4 years, law school for 3, and then pass the bar exam are too lazy to care about the quality of their work? I think, perhaps, you’re just telling on yourself my friend.
DeleteSince the issue here turned out to be "irreparable harm," we can see clearly why Cumulus's odd lassitude at the outset of the case cost it at least one strategic advantage.
ReplyDeleteAt least at the initial -- that is, ex parte or very early TRO stage of a noncompete proceeding, IRREPARABLE HARM FROM VIOLATION OF A NONCOMPETE IS PRESUMED without a hearing. That presumption may be rebutted, as Dan and Jake apparently did on Friday.
But if Cumulus had gone in immediately when it became clear that Dan and Jake were going to violate their noncompetes -- even before the first one dropped, and certainly no later than the day, or within a day or two, after the first one dropped, and filed the appropriate papers to get an ex parte hearing with the court, it would have been entitled to that presumption and, more than likely, gotten its temporary restraining order. But Cumulus (1) delayed, and (2) either didn't seek an ex parte order, or, as the court believed, intended to seek an ex parte order but didn't follow the rules to get one.
Having gotten the TRO at the outset would not necessarily have changed the result on Friday, but it would have enabled Cumulus to start from strength, and not have had egg on its face with the court.
“It’s a clone of the show they were doing on The Ticket,” testified Jeff Catlin, operations manager for the station.
ReplyDeleteKemp and McDowell disputed that characterization. The Hang Zone, McDowell said, was, like other Ticket shows: a slick, “well-produced machine.” The podcast, on the other hand, has “no format at all. … We’re just two guys.” Kemp agreed. “The format [of The Dumb Zone] is quite different, and, in my opinion, not very good,” he testified.
Just curious if Cat testified that ratings are down 45% middays and 30% overall do you think his sales team members are reporting accurate numbers to prospective clients?
ReplyDeleteI do respect the fact that you (P Man) have at least acknowledged that your career has made you fight for and perhaps even have a slight bias towards the interest of corporations. I think the current socioeconomic climate in the country is not incredibly sympathetic to the motivations and best interests of mega corporations and conglomerates. I will add that you yourself have called members of DZ too "woke" for your tastes sometimes.
ReplyDeleteI wonder if a lot of the back and forth here is not down to the talent on The Ticket currently or the entertainment value of DZ or the legal merits of non competes. But more a reflection of age of the most involved listeners and general attitude towards capitalism at all costs. I'm 42 and a former P1 who has been clean and sober from the station for almost two months now. I dig DZ but more importantly, I support the cause of workers fighting back against restrictive and short sighted corporate-friendly contracts.
I think a lot of the passion both here and in the Reddits of The Ticket and DZ are a reflection of a bigger issue and one that a lot of working class folks have faced in their professional lives. While corporate litigation may have been your side of the street, a hell of a lot of us were the folks hoping to stand up against all the money and power and lawyers to fight for the little guy.
If you complain that something is “woke” you’re just telling everyone that your an asshole. All “woke” is is the golden rule. Treat others how you would like to be treated. Anything past that is bullshit and you know it.
DeletePeople devote their lives to restricting the lives of others while not wanting those same restrictions to apply to them.
And yeah, a guy who still prefaces every post with a picture of a woman he wants to objectify might be an old boomer who doesn’t fully see women as equal to men. And I’m not even pointing out that oftentimes these objects of the great PMan’s lust are of an age that McClearin would be interested.
@ Out of Demo - I continue to be puzzled about Cat's ratings statement. He could be talking about the next numbers that we have not seen yet. However if he is lying or "embellishing" those numbers for the sake of the TRO hearing (asking as a non-lawyer), can that lie come back to bite him or Cumulus in December? Or is everything that happened Friday only relevant to the TRO hearing and is not relevant to the December trial date?
ReplyDeleteThanks
Joel, if your 1:03 comment is directed towards me, my answer is absolutely yes. I see so many careless mistakes from junior lawyers that I work with and from opposing counsel. And of course, I make mistakes too. I like to think my mistakes are not made out of laziness, but I can't say I never failed to read a judge's local rules before filing something in error as a younger lawyer. It happens.
ReplyDeleteIf the biggest weight on your shoulders as a lawyer is that you neglected to update a footer in a random motion several years ago, I think you're doing alright.
Now, is there a reason that this opinion would get your hackles up?
The numbers Pete posted a couple weeks ago showed midday ratings share declines of 32-34%
ReplyDeleteJoel, although I am a big fan of MST3K, I must say you are showing your ass just a bit.
ReplyDelete"You keep saying they violated a non-compete but if it were that simple surely the court wouldn’t be allowing them to keep posting podcasts and collecting money."
That is not true at all. There is a rather large distinction between the extraordinary relief of temporary injunction and success on the merits. The fact that you do not seem to grasp that suggests you should perhaps take a breather from criticizing the legal analysis of others.
The legal analysis that has been incorrect since day one. To quote a great man, “It stinks!”
DeleteOh my, Joel Robinson, aren't you THE instantiation of a first-rate mind.
ReplyDeleteYou lovely little Jacobite, you. You'll be one of Gill O Teen's first customers. It's always the truly pure ideologue who suffers for their hypocritical Elders' scam. "Elders?" you say. Yes, Joel Robinson, Elders. You hold deeply religious convictions. Oh, I hear you, "No! I do not!" Au contraire, mon ami. You are a zealot, a perfect, beautiful, zealot.
Poenas dare, as the Romans were wont to say.
Are you lampooning the “elegant writing style” of this place or are you so far up your ass you think this twee stuff is cool?
DeleteQuestion for everyone else but this guy. Does anyone actually find anything this doucher writes clever? He writes like what I think “Cruz from Aledo” must write like.
DeleteReddit Jr
DeleteSo you're the boot guy. What happeennnnedddduh?
ReplyDeleteThe legal analysis here has been fundamentally sound from the very first filing, especially based on the limited information we have about the case. Pretty much correct all the way down the line. And qualified and conditioned appropriately when info is lacking.
ReplyDeleteI welcome Mr. Robinson's legal analysis.
By the way, I should have mentioned: The article excerpted over at Reddit also states: "The parties and their lawyers have agreed before Judge Scholer not to discuss the pending litigation publicly, including, in the case of McDowell and Kemp, on any future episodes of The Dumb Zone."
"The point of view that noncompetes are nothing but oppression of "the little guy" is understandable. And, misused as to lower-level employees, they can be very unfair and should probably be done away with.
ReplyDeleteBut I have a feeling that those who think they're never justified have never put their own capital at risk in running a business -- even a big giant business -- or starting one. Human talent, be it scientific, entertainment, artistic, management -- is capital. It's a valuable thing in which companies invest very heavily. It's not evil to protect that investment for shareholders -- many of which are the "little guys" that noncompete abolitionists claim to champion."
This sums it up pretty well. Maybe, just maybe, I don't think of people as human capital ripe for exploitation by capitalists.
Additionally, stock ownership is strongly correlated with household income, formal education, age, marital status and race. Only 29% of those under $40k annual income own any form of stock whatsoever. The top 10% of income earners own 70% of the market.
Your whole response is a great example of why I said you are a corporate bootlicker. You show great sympathy towards the companies and their "human capital," as if the people they employee should be thankful to have been graced with such employment by the benevolent company. The workers offer value as well.
"If you think noncompetes are never justified, then your argument is not with me, but with state legislatures (a Texas statute expressly authorizes noncompetes under circumstances which were met in this case), courts, and American contract law as it has existed for decades, all of which, I should add, have taken steps to lessen their harshness to former employees."
I didn't say they're "never justified," but the cases where they should be allowed are rare and not relevant to this conversation, in my opinion.
I can have arguments both with the "state legislatures....,etc" and with you at the same time. You maintain that this issue is settled law when the very question at hand in the case you're spilling countless pixels opining on is whether or not it really is settled law.
"But if Cumulus had gone in immediately when it became clear that Dan and Jake were going to violate their noncompetes -- even before the first one dropped, and certainly no later than the day, or within a day or two, after the first one dropped, and filed the appropriate papers.........."
This is another area where I accuse you of corporate bootlicking, or Chris is more accurate that you're just a big fan of white shoe firms. Cumulus clearly messed up with the original TRO, but you've hesitated to even accept that, claiming that perhaps it's some sort of strategy. You give all benefit of doubt to Cumulus and none to D&J.
You've also claimed that Cumulus gave Dan and Jake some help by waiting so long to file their initial suit and TRO/PI. Perhaps, we can imagine a world where corporations are not "good."
7/24 - First Dumb Zone podcast
7/25 - Cease and Desist sent
7/27 - D&J file NLRB complaints of overly broad NCs
7/27 - D&J read C&D as part of listener feedback, making it clear they will not cease, nor desist.
7/28 - NLRB sends notice to Cumulus as charged part (on Friday)
8/4 - Cumulus spends the week putting a suit together and files on Friday
8/8-8/10 - D&J file amended charges to the NLRB accusing Cumulus of filing their suit in retaliation for D&J practicing Section 7 protected activity.
Certainly not definitive, but the timeline does raise some questions about the delay in Cumulus filing suit, and doing so in an uncoordinated fashion.
Pman, I think it would be funny to just copy and paste your many quotes on this to show how incredibly wrong the above poster is. Poor fool has been so blinded by filtering everything through politics that he can't see he agrees with you.
ReplyDeleteThis is one of the most boomer things I’ve ever read.
Delete@Nothing to see here: I was sort of thinking the same thing.
ReplyDeleteIn any event, enough. We've all had our say. Let's get on to more important topics, if indeed there is anything more important, like whether Donovan and Matt have chemistry.
* * *
But I do have a Dumb Zone-related question: Is the Dumb Zone still offering the occasional free program? I was going to tee one up on my bike ride today, see what all the fuss was about, but it looked like all recent offerings required a subscription.
I was also a little bit surprised to see subscriptions still hovering below 4900. I thought there would have been a spike after the agreed TRO expired on August 29. Perhaps subscriptions will pop up now that it's clear that the show is very unlikely to be taken off the air as a result of the lawsuit.
By the way, one more technical bit of information:
ReplyDeleteCumulus could appeal the denial of its preliminary injunction motion right now. Cumulus's pleadings are a little ambiguous, but it looks like it combined the TRO and preliminary injunction request, and the minute order recites that the PI request was part of the hearing. Assuming that yesterday's ruling was on the request for a preliminary injunction:
28 USC sec. 1292 states that courts of appeal shall have jurisdiction over appeals from "[i]nterlocutory orders of the district courts of the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions[.]" (An "interlocutory" order is an order issued by a court before it issues the final judgment in the case.)
To prevail on such an appeal, Cumulus would have to show that the district court "abused its discretion" or applied an incorrect legal standard, which are considered standards deferential to the trial court and tough to meet.
Based on what little we know about the factual record made at the trial, it seems unlikely Cumulus could meet that standard. Practitioners, check me on this, but I don't believe that filing such an appeal would stay any part of the case unless the court so ordered. My ass is guessing that Cumulus will not appeal.
They aren't putting out free episodes while litigation is pending (my guess is because it's hard to say that a podcast behind a paywall with 5k subs that drops at night is in direct competition with radio). And the sub count was like 4700-4800 a few weeks ago so it's a healthy clip for new subs.
ReplyDeleteThe fact that someone would think "boomer" is an insult is pretty wild.
ReplyDeleteI guess when righteous conviction goes up against fundamental lack of knowledge, go with the righteous conviction.
Really, if you aren't an experienced attorney, your opinion on the D&J legal proceedings is about as useful as tits on a boar. So the Sam Hales and Joel Robinsons of the forum can take a seat while their human capital commodifying, corporate boot-licking betters are speaking.
Yes - surely those who don’t value humanity are the “betters”. I called you a boomer not because of your age, which I don’t know, but because you are a selfish ass. You don’t know what you’re talking about and however you choose to present it your time is done. Now go get your shine box.
DeleteOr maybe your view of what valuing humanity means isn't universal truth. That would take quite a stout amount of humility to admit, though, so I can understand doubling down on snark and pithless mockery instead. Now go ahead and hit me with the next 30-year-old reference, mister non-boomer.
ReplyDelete@Nothing
ReplyDeleteThat makes absolutely no sense whatsoever. Please, unpack your last comment for the class. Do that, then we'll have a disussion on Boomers and their direct correlation to so-called wokeness.
I would like to remind Joel & everyone like him that this isn’t the subreddit where you can say crap with immunity. If you’re not going to act like civilized human beings, then you’re not welcome here. (Also, 1st time poster here.)
ReplyDeleteWe've gotten a bit far afield here.
ReplyDeleteLet's take a break.
I'll resume acceptance of comments pretty soon, probably.
Back.
ReplyDeleteTy Walker has left The Mothership. There really is a sea change happening. I'm beginning to think the Confessor who said he'd heard from several that The Musers are either in their last months/year on-air has good info.
ReplyDeleteKind of amazing he stayed as long as he did, considering he’s 50+ with a wife and kid and probably bringing home 35K
ReplyDeleteThing of it is, KTDK, and I'm not pushing back at you in any way, so please don't take it as such, but his most likely 45-55k-ish Ticket salary is actually around the average US salary for f/t workers. You can find some data that will show as high as 75k, but such data is rather easily debunked. My point is, between his earnings and his wife's, I imagine they are living a nice middle to slighlty, slightly upper-middle class life. Not a damn thing wrong with that. Now add onto this that he was working in a profession that is pure fantasy for most people. It's akin to saying, "I play music for a living." He talked about and reported on sports for a living for the majority of his adult life. That's amazing. He did what he loved. Now he's moved on. Yes, it might be a money thing. But it also might be something else. We don't know. Ty, in his always professional manner, did not elaborate. Like always, he did his A+ work, finished his workday. But this time, instead of saying to the effect, "see you tomorrow," he said, "so long and thanks for everything." And he added, "don't stop listening to the best station ever." What a fucking mensch. Cheers to you, Ty. I'll miss the shit out you, my man.
ReplyDeleteTy has gotten passed over for hosting and producer roles in the latest turnover. Writing was on the wall for him that the Ticket was not going to promote him beyond Ticker guy / weekend host. Time to move on unfortunately.
ReplyDeleteMedian income for men 45-54 is $72K.
ReplyDeleteYes and what you need to remember is Median is the point in which half make more and half make less. It is not a normal distribution though with a much longer distribution tail on the right side of the curve meaning there are many men that make many multiples of 72k (such as myself) where as the guys on the right hand side of that curve (Ty Walker Ticket salary) are tightly clustered from 35k to 72k. He wants to be a multiple of 72k guy at this point in his life. You can't blame him.
Delete61k is the avg per US Labor data.
DeleteDecided to hit up Reddit & considering how Ty is the most vocal out of the on-air staff towards his hatred of the subreddit (& I don’t blame him at all), a lot of the tributes are nice. It surprised me, to say the least.
ReplyDeleteRatings question - the better the Cowboys do the less I listen. If there is nothing to second guess then each show just repeats the same ideas and replays the same audio. I can’t listen as each show becomes the same. If the Cowboys continue to be so good will the Ticket’s ratings suffer?
ReplyDeleteAbsolutely not. If anything, they will go up. Not trying to knock your opinion down, just a feeling. Look at that surge that 105.3 had when they were good a few years ago. It’s a common effect.
DeleteI would say 105.3 surge was because there was carryover from people using the station to listen to the games. My question is more about ratings driven based on if the games create radio content or not. I would say if there are no problems to discuss with the Cowboy’s games then ratings could suffer.
DeleteThey've won 12 games each of the past 2 years too. They will eventually lose a few games and the stakes will be higher if they're considered championship contenders so I'd expect people to still tune in. The only example where listeners could decrease would be if they ever won multiple championships like the Chiefs and the regular season is just a time-waster until the playoffs start.
DeleteOn Intentional Grounding Ty said that he had been wanting to get into graphic design.
ReplyDeleteas someone who does Graphic Design for a living I wish him well but he's insane. It once again makes me wonder how possibly toxic the culture at the Ticket really is if someone would leave it for graphic design, because there are few more toxic fields than design and advertising. I know he has a tee public store so if he's got that running to where he can make a living of that and be his own boss it might be a step up from the ticket.
DeleteIt is way more toxic than we think, and that's because of the cat man
DeleteDid the Hardline, Musers or any other shows other than Mino/Bass discuss Ty leaving?
ReplyDeleteHardline did a big sendoff. He asked that nothing be said but they did it anyway. Mino/Sea Bass did a nice tribute the next day.
DeleteHardline did a big sendoff segment on his last show. Mino and Sea Bass did one the following day. Word on the street is that Cat threw a fit over it, because the sweet spot was doing a segment about someone who doesn't work there.
DeleteNice to see what your boss thinks about you 1 day after you leave the job that consumed most of your adult life!
KDF, there is no more toxic field than the arts. Yet it doesn't stop people from quitting their stable, decent or even well paying jobs to pursue their passion. No matter how many, say, lifer musicians asvuse them not to. I've seen folks in their 50s do it. If you heard Ty's farewell speech on Diamond Talk, you heard his love for The Ticket.
ReplyDeleteCopy of the TRO ruling posted on reddit
ReplyDeletehttps://reddit.com/r/thedumbzone/s/gbjJgpb2ni
Hearing some buzz that Friday's wife swap was a test balloon.
ReplyDeleteDavey swapped to watch his daughter’s volleyball game.
DeleteThat was merely a beard.
ReplyDeleteI take it that wasn’t the steel-toed boot getting dropped?
ReplyDeleteSeems to be a lot of cobblers and foot fetishists here. Anyone into pick up hockey?
ReplyDeleteThe court's order says pretty much nothing except that Cumulus's motion for a temporary restraining order and preliminary injunction was denied because they failed to prove each element required for emergency equitable relief. But we knew that.
ReplyDeleteWhat it doesn't say is that Dan and Jake's preemption defense, which goes to her jurisdiction to hear the case at all, has any merit. She ignores it entirely in this order.
The only interesting thing about the order is that it says a fuller opinion with reasons for the decision will be forthcoming. That's where the real action will be. Perhaps she will say something about that defense, and we'll find out where she thought Cumulus's proof was lacking.
A little unclear why it took a week to get this nothing order out after the hearing. Not sure whether Cumulus's time to appeal will run from the hearing, at which time an oral ruling (itself fully valid and final) was presumably rendered ("I'm denying Cumulus's motion"), or from the date this written order finally appeared in the public record.
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DeleteYou're not Anonymous. You are Sam H.
ReplyDeleteThis comment has been removed by a blog administrator.
DeleteThe court has set a status hearing for Monday the 25th at 9:30. Only an attorney from each side is required to attend.
ReplyDeleteGuessing the court will further jawbone the parties on settlement, ask them about further discovery. Maybe have a chinwag about preemption. Perhaps set a further pretrial schedule. Cumulus must still respond to the motion to dismiss and the lads will have a chance to file a reply. Assuming the court denies the motion to dismiss, the lads will have to file a formal answer to the complaint.
As we have noted , while the lads defeated Cumulus's motion, which does give them an overall strategic and even psychological advantage going forward, it does not mean they have won the case. It goes on.
Kemp et al makes the Washington Post
ReplyDelete“The hosts of ‘The Dumb Zone’ are not, in fact, being dumb,” Block said. “Part of having agency in your own economic life is being able to take your skills, join with your co-workers, and bring them to where you think they’re best utilized — and in this case the hosts were being sued because they were trying to do that.”
ReplyDeleteThey have talked in recent episodes about whether or how mermaids would tan, the induction of NBA legend Dirk Nowitzki into the Naismith Memorial Basketball Hall of Fame, how the phrase “leave room for” became associated with dessert and which male celebrity the heterosexual male hosts would have sex with, if they had to pick one.
ReplyDeleteOutside of the legal stuff that it is outside of my expertise. I think the 10-3 has improved with the start of the football season. MM is much better talking straight sports than guy talk, I think. I do wonder what changed that MM is able to do "Just the sip." when Jake said they had been told they couldn't do reviews of breweries. Even improved MM doesn't do much for me so I'm still pretty much out and on to podcast or Sirius after the Musers sign off.
ReplyDeleteThat WaPo article reads more like a product of Matt Bruening’s contacts with sympathetic writers at his wife’s former paper than anything else. Our heroes got everything they could have wanted
ReplyDeleteReddit’s reaction, despite them worshipping D&J like Jesus, is surprisingly mixed. Huh.
DeleteNot sure if anyone has mentioned this yet, but on a (slightly) unrelated note, Sirois has won the Observer’s Best Local Radio Personality award: https://www.dallasobserver.com/best-of/2023/sports-and-recreation/best-local-radio-personality-17520045. Ticket V. D&J won the Best Local Media Drama award: https://www.dallasobserver.com/best-of/2023/sports-and-recreation/best-local-media-drama-17520049.
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DeleteDouble post, forgot that it wasn’t in my name. Reddit is mad at the Observer because they said that Skin was one of the best radio personalities in DFW. Yeah, it’s a cult.
DeleteCan anyone with actual expertise in law comment as to when anyone could expect the NLRB to step in, if in fact, they're going to?
ReplyDeletePutting all the legal, who's winning, The Man v The Little Guy stuff aside, the WaPo piece does not paint an interesting picture vis a vis TDZ content. In fact, it comes off as Ron and Don trying to do a Musers' bigfoot plays hoops segment.
ReplyDeleteI've been of mind from the onset of this situation that whoever "wins" isn't the story. The story is, once the dust settles, what does TDZ look like going forward? More so, a year, two years from now. Early days, for sure. But there are indicators that post pissing natches, hoopla, hype (local/national and local social media), and after the lawyers and their connections/PR machine are gone, the actual day to week to month to year content might not live up to its perceived standards. Indeed, in of all places, reddit Ticket and Dumb Zone, criticism of TDZ's content is beginning to pop up.
I have no idea what you said. Kudos for run on sentences. Ron and Don? Musers? What?
DeleteThis is one of he most poorly worded posts I've read on this website. Congrats Snuggles. Good hatin'
DeleteSorry you never got passed Dick and Jane, Scott. Oh, Jonah! You perfect fanboy, you. Sam, are there? It's me, the other Sam. Knife still firmly stuck in my back.
DeleteScott, I take it you've never read Hegel, yes? Also. If you don't get the Ron and Don and Bigfoot-Musers ref, not sure why you're here. Peace, bruh.
DeleteThank you
DeleteI'm not a lawyer but was involved in a Communication Workers of America vs Verizon case back in the 90s. It was over who the company decided to layoff and them not abiding by the contract to do so according to seniority. It was well over two years before the NRLB reviewed the case.
ReplyDeleteLike all .gov organizations, it moves at it's own pace.
The difference here is that this case could serve as a test case for the memo the NLRB general counsel put out in May regarding overly broad noncompetes. They need to swear in one more board member to be at their full 5, which a democratic majority.
DeleteYa I did see some on the Reddit page saying they were unsubscribing. Was kinda shocked.
ReplyDeleteI’m not. TDZ is usually somewhat entertaining. But if you’re a WaPo subscriber and read that article what’s the TDZ USP? What’s their unique selling point that’s going to get me to subscribe? So I can hear them tell me which athlete they’d have sex with? They’re show now isn’t much different then a ton of DFW area podcasts, they just are bigger names.
DeleteAnd this may be a spicy HSO, but I think the show was better on radio. More production value, more people to interact or comment with, but most importantly, formatting. Radio forced them to do a tight 15 minutes on (subject). Last week they did Romo for what seemed to be an eternity. It’s like the pod has allowed Dans worst traits, his ability to bog and meander, to flourish.
C
I feel like even the most ardent D&J fans (me) would agree the radio show was better. It was an institution!
DeleteSo what are the court meetings yesterday and today covering?
ReplyDeleteWhere are our PACER havin bros to break down all these recent filings?
ReplyDeleteArticle in the Observer, nothing new really just rehashing of recent events.
ReplyDeletehttps://www.dallasobserver.com/news/the-ticket-vs-the-dumb-zone-battle-draws-national-attention-17553204
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ReplyDeleteAs far as the last few filings are concerned, @stapleman01 and @Not Legal EGL, there is not much to analyze. They either note that a hearing has taken place, without comment on what took place, and there's that one court order that does little more than deny Cumulus's motion without stating the reasons (but promising that an opinion will be forthcoming).
ReplyDeleteA recent filing notes that the transcript of the September 15 hearing has been electronically filed, but it will not be available to the public for at least three months.
@Radio Knob 133: It would be possible for the NLRB to intervene in the court action. Governmental entities are allowed to intervene in court cases under Federal Rule 24(b)(2). However, they don't have the right to intervene -- the court would have to allow it.
Personally, while Dan and Jake's "federal preemption" defense, and the internal NLRB lawyer memo upon which it is based, have gotten a lot of ink, I think it is very unlikely that the NLRB would seek to intervene here, and certainly not anytime soon.
First, let's make sure we know what it would mean if the NLRB "stepped in." That does not mean they would come in and take the case away from the judge and start running things; rather, the NLRB would be aligned with Dan and Jake as a party, subject to the court's continued jurisdiction and rulings.
(1) The legal theory upon which the preemption defense is based requires a substantial shift in federal-state relations, a federal takeover of an area of common law and state statutory law that has existed for a long, long time. As I have noted several times, it sure looks like the court is rejecting it, at least informally. Intervention would require this court to actually decide the issue in a case in which the NLRB was a party, and if it rejected the theory it would be a real blow to the NLRB's legal theory even its own halls. Less so if the NLRB isn't an actual party to the decision.
(2) Dan and Jake are doing just fine without it. When federal agencies intervene, they tend to pick their spots carefully, and you usually see it when there is a huge disparity between the parties' likely fortunes in the case. No need to step in if the court isn't (so far) enforcing the noncompete.
(3) As others have noted, the NLRB itself has yet to advance this theory, and they're unlikely to do so until the NLRB changes its makeup, which is some ways off.
(4) Dan and Jake have already filed their unfair labor practice charges. They've provided the NLRB with the opportunity to introduce their legal theory without fear of judicial interference and rejection (at least at the NLRB level). No need to imperil that by involving itself in what looks like a garden-variety employee noncomp dispute.
So while the lads' lawyers threats of the NLRB bigfoot coming storming into the case may come true -- I'm no expert in this area -- it just doesn't seem very likely to me, and less of an advantage fo the lads than people seem to be thinking.
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Dammit! Trajan Troll is plyinghis craft over on reddit. WTF?!?!
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ReplyDeleteSeems the transcript is available now:
ReplyDeletehttps://www.bentonwilliamspllc.com/wp-content/uploads/2019/04/DumbZone-Injunction-Hearing-Transcript.pdf
Curious about the settlement terms. It will be confidential, we will have to wait 4 months to see if D+J go anywhere or do anything to really know
ReplyDeletePressure in the press via WaPo and the Dallas Observer had someone at Cumulus sweating not to create bad precedent
Case is over. Per Twitter
ReplyDeletehttps://x.com/mctrees02/status/1706785947852140850?s=46&t=SKCCeQqmpoIRvwXbxUf7Dg
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ReplyDeleteMy half assed take away is she wants them to settle very badly.
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ReplyDelete@in house: Thank you very much.
ReplyDeletein house's link goes to a brief order by the court that the parties have advised her that the case has been resolved. The parties are to file voluntary dismissal papers (likely a voluntary dismissal with prejudice under Rule 41(a)(1)(A)(i) or a joint stipulation by both parties under Rule 41(a)(1)(A)(ii).
As far as the practical result is concerned, this must be regarded as a victory for Dan and Jake.
We may never know the exact terms of the settlement -- I'm guessing there's a confidentiality clause in the settlement agreement which means neither party can disclose it -- but if anyone has access to NLRB dockets, it will be interesting to see if the lads' unfair labor practice complaints are withdrawn. My guess is yes; hard to imagine Cumulus folding its tents with a potential entire adversarial proceeding outstanding. But a lot of what Cumulus did in this case is puzzling. So, it's not a certainty that the NLRB case will go away.
But the court did hint pretty strongly that she was going to rule against Dan and Jake on their preemption argument -- which means their motion to dismiss would fail, which means the case would be tried for damages in December -- to a jury, if Cumulus would have remembered to file a jury demand.
So, despite the lads' resounding victory on September 15, there remained enough risk and expense on the table for them to fuel interest in settlement on their part. And, as mentioned before, Cumulus didn't want any additional bad things to happen to them in the case, so they were very incentivized to get rid of this dog.
And forgot to add: Congratulations to Dan and Jake
ReplyDeleteIf there’s a good thing to come out of this, it’s that the P1 discourse will hopefully come to an end. I know I harp on the subreddit a lot, but they have acted like Cumulus is the worst company on the planet, Cat is like Hitler, Bennett abuses animals, & Dan & Jake are gods during this whole ordeal. Everyone there should be ashamed of themselves for their actions & I hope they learn from this lesson they’ve been taught many, many times. It’s one of the worst subreddits on that site, & that is saying a whole lot. I’m glad this is over.
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DeleteI was neutral throughout this whole thing. It was appalling to see their behavior towards anyone not named Dan & Jake. I don’t defend nor praise Cumulus. I, however, am not for people on there hijacking what is supposed to be a place for discussion into a soapbox for praising D&J like some sort of deity & everyone else being the worst human being in America. That’s half of the reason why I don’t like the Reddit page. And if that makes me a bootlicker, then excuse me for pointing out that 90% of the people there acted like animals.
DeleteEveryone hold a good thought for C Minus. He’s likely just staring off in the distance mumbling “But Jake had a non compete that included podcasts.”
ReplyDeleteThis made me chuckle
DeleteWorld turned upside down. You hate to see it.
DeleteLol Javier, lol. But I’ll point out that Kingston said their case was a slam dunk for TDZ. Why do you settle a slam dunk? Why not win?
ReplyDeleteI read the transcript. I think she telegraphs that TDZ could lose if Cumulus gets better evidence. And if they lose, Dan and Jake are liable for damages and Cumulus’s legal fees. I don’t see TDZ wanting to risk that. Will be interesting to see what the agreement is. Do they continue to podcast? Give up the social media accounts?
C
My guess is the settlement is each side agreeing to drop their action and walk away. DZ pull their NLRB complain. Cumulus drops this lawsuit.
DeleteBut why would Dan and Jake settle, you ask? Dan and Jake get what they want here: they get to keep podcasting.
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DeleteThis is a tough time for you, we get it.
DeleteWhy would you continue, as a 2 man LLC, to litigate? What would they win monetarily? I guess that's what I don't get with your comment. You're still not admitting that by not going to trial, they in fact won.
Cumulus couldn't and can't prove irreparable harm or at least won't by December. An accountant at Cumulus was probably tasked with estimating the cost of litigating through trial with a 50/50 chance of losing. It's probably not that hard of a decision, as the Cumulus lawyer even said their non compete would end mid January. There was nothing about the non compete being extended until the case was resolved.
Let it go, let it go. D&J showed others the way if they decide to depart. When the next ratings books come out, The Musers and Hardline are going to be more valuable to them than they've ever been. Will be interesting to see what happens when Cumulus asks them to take a pay cut.
D&J said on a very brief podcast today that they would be back to usual starting tomorrow. No indication of any pause or any change to what they’ve been doing thus far
ReplyDelete@C Minus good points.
ReplyDeleteIn my courtroom experiences there’s always a cloud hanging over both parties. Do we really want 12 jurors deciding this?
Two observations:
From the transcript- Cat comes off as a poor witness. Seems like some prep from the attorneys could have solved some of that. Lot a good look.
Jake and Dan’s legal strategy: make bold claims, air out some dirty laundry. Washington post article. Lots of publicity - make Cumulus call your bluff, then settle.
Yes we don’t know the terms of the settlement, but the short podcast that came out today let’s the listener know big shows are coming this week, so they can continue to podcast in some form.
Maybe they had a plan all along.
If the settlement was to keep podcasting, D&J already had that for a the next few months. I always suspected any settlement would hinge on the right of first refusal that’s in D&J’s contracts
ReplyDeleteWell I guess that answers that. They dropped a short pod tonight to let everyone know that there will be a major pod announcement tomorrow along with a very long mega pod which I take to mean probably a few hours worth. I think the major announcement will be that they are adding a producer which could very well be Blake. I don't think Cumulus has the stomach to now file a Cease and Desist against Blake if that is the case. To sum up: D&J will not be paying Cumulus legal bills, will not be ceasing nor desisting, will not drop the Dumb zone name, will not suspend their social media accounts they were accused of appropriating for themselves, will not take a 6 month sabbatical all together, will not shy away from segments that closely emulate their Hang Zone program. Other than that Cumulus really stuck it to them.
ReplyDeleteExactly as the legal and inside baseball minds in this room have predicted, lo these many weeks
DeleteJake letting the court know that his/their agent once had Vanilla Ice as a client was funny. Haven’t had time to read much further than that.
ReplyDeleteReading the transcript, I think the Cumulus lawyer messed up by initiating their argument that listeners only have some much bandwidth in their lives to dedicate to listening to audio mediums and thus Dumbzone infringes on that time. This opened up D&J's team to then point out that all the other hosts podcasts, twitches, Unticket replays, etc. would be just as harmful and competing. Also Cat really did not come across well (as mentioned previously).
ReplyDeletehttps://x.com/zacbabb/status/1706847543236153774?s=46&t=FNJ_C87pvoF9Opy71Vj_xw
ReplyDeleteWow. Dan Bennett is a real piece of work.
I don't understand the outrage here. It's pretty obvious they thought Bob was worth more, he got moved to drive time. I think Dan is great, but if I had to rank the two for my listening, I would put Bob ahead of him. Sure, it is not what the P1 wants to hear, but it is a business decision from upper managements point of view.
DeleteThe point is this started when Dan found out Bob was getting more and was moved to afternoon drive. This point was made in a previous post.
DeleteAnd why Dan spent a lot of time discussing this. Dan’s answers are very telling as to why this came to be.
DeleteNow that the war is over and hopefully it won’t be as contentious as both the station and DZ get back to business. But I have to wonder if Cumulus genuinely understand the nearly three decades of goodwill and listener loyalty that their own management has made evaporate overnight. The testimony of Cat and DB will do nothing to score any points with P1s who are not loving the new lineups. Once this litigation started, it seems like Dan and Jake just had to kind of get out of the way and give Cumulus and management enough rope. It’s pretty astonishing to see something as pencil pusher-y as this end up being so impactful that it takes an immediate 30% chunk out of their ratings. It also has made the round table segment where George got angry sound worse and worse (minus Bob’s very heartfelt and emotional reaction). The defensiveness and bravado haven’t aged well in light of recent developments.
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ReplyDeleteI’m betting Cumulus ultimately spins this as “we got some sort of agreement that they won’t join a rival station for x>6 months,” but I’m betting that tomorrow’s announcement shows that they never intended to do so anyway.
ReplyDeleteI never understood why most everyone here thought that was their end-game. Looks like Cumulus/Ses is going to get that gesture and not be on the case that ends most non-competes, and the guys get their $35k/month. Have to think a head is going to roll somewhere for letting any of this happen.
New post/red. No new content.
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