The owners of KTCK “The Ticket” and former hosts Dan McDowell and Jake Kemp are close to settling a lawsuit over whether the duo’s new sports-talk podcast violates their noncompete agreement with the radio station, lawyers for both sides said Monday.
Informed that a settlement could be imminent, U.S. District Judge Karen Gren Scholer postponed until Aug. 29 an evidentiary hearing on a request by Susquehanna Radio, which owns The Ticket, for a temporary restraining order to silence the podcast called The Dumb Zone. Their afternoon show on The Ticket was The Hang Zone.
Kemp and McDowell agreed to “immediately cease” uploading new episodes of The Dumb Zone between now and Aug. 29, according to an order by Scholer. They don’t have to pull down existing episodes, the first of which was released July 24; but they cannot “promote or otherwise discuss or comment” on The Dumb Zone or say anything in public, including on social media, about the pending litigation.
Lawyers for both sides told Judge Scholer they hoped the Aug. 29 TRO hearing won’t be necessary. The judge, after meeting with them in chambers, said: “I am very confident you’ll work out a deal.”
Under an earlier court order, the two sides are scheduled to meet Tuesday morning with a mediator, J. Robert Arnett II of Carter Arnett in Dallas.
McDowell and Kemp, both longtime personalities at The Ticket, quit last month in a contract dispute stemming from, among other things, “their desire to embark on other media content creation activities,” according to court documents filed by their lawyers.
Their official last day was July 14. Ten days later, The Dumb Zone made its debut. On Aug. 4, McDowell and Kemp were sued by Susquehanna, a part of radio industry behemoth Cumulus Media Inc. The suit claims that by launching the podcast, whichlike The Ticket focuses on Dallas-area sports and appeals to male sport fans, Kemp and McDowell violated a six-month noncompete agreements with their former boss.
McDowell and Kemp argue in response that their new venture isn’t a competitor to The Ticket, because podcasting and “live terrestrial radio” are entirely different businesses, built on different technologies and sustained by different revenue sources — for radio, advertising; for podcasts, listener subscriptions.
Representing Susquehanna Radio in the case are L. David Anderson, a partner with BakerHostetler in Dallas, and David M. Pernini of Atlanta.
Representing Kemp and McDowell are former Dallas City Council member Philip T. Kingston of Sheils Winnubst, Frank G. Cawley of Frisco, and Matthew Bruenig of Stamford, Connecticut, formerly a lawyer with the National Labor Relations Board.
Susquehanna’s request for a TRO was supposed to be heard Monday. Judge Scholer had set aside the day for it and had video equipment installed in her courtroom so McDowell, travelling out of state with his younger daughter who is starting college, could be present, and so a defense witness who just had knee surgery could testify remotely.
The hearing was just getting under way when Cawley, one of the defense lawyers, told the judge that on Sunday evening his clients initiated the push for a settlement. Testimony unfavorable to both sides could come out if the suit went forward, he said, without elaborating, and McDowell and Kemp wanted to try resolving matters “before we have a full-blown evidentiary hearing.”
Pernini, the lawyer for Susquehanna, agreed.
“We hope there will be no need to come back into court,” he said.