A federal judge in Dallas on Friday denied a request by the owners of KTCK “The Ticket” for a temporary restraining order that would have prevented former hosts Dan McDowell and Jake Kemp from producing a sports-talk podcast, pending a December trial on a civil suit accusing the duo of “flagrant breaches of contract and misappropriation of … intellectual property rights.”
The suit, filed by Susquehanna Radio, which owns The Ticket, contends that the podcast, The Dumb Zone, is a carbon copy of The Hang Zone, the afternoon Ticket show McDowell and Kemp hosted until they quit in July in a contract dispute. Both hosts signed six-month noncompete agreements while employed at the Ticket.
After a seven-hour evidentiary hearing that stretched into Friday evening, U.S. District Judge Karen Gren Scholer ruled that Susquehanna failed to present convincing evidence to justify the “extraordinary remedy” of a TRO, including evidence that the company would suffer irreparable injury without such an order.
The ruling means McDowell and Kemp may resume creating episodes of their podcast.Under an Aug. 21 court order, the two agreed to suspend the podcast while mediation and settlement talks were under way. Those efforts failed to produce an agreement, however, and on Friday Judge Scholer implored the two sides to try again.
“Getting this behind you is good for both sides,” she said, adding, “You guys should settle this case. … This case should go away.”
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, Elizabeth Griffin of Clark Hill in Dallas, and Matthew Bruenig of Stamford, Connecticut, formerly a lawyer with the National Labor Relations Board.
While the judge’s ruling means Kemp and McDowell are not prohibited from resuming their podcast, the question of whether the podcast violates their contracts remains to be determined at trial, should the dispute come to that.
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.
Ten days after the longtime Ticket personalities quit, their subscription podcast made its debut. Like their radio show, the podcast focuses on Dallas-area sports and is targeted primarily toward male sport fans.
“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, onthe 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.
Dan Bennett, a regional vice president for Cumulus Media Inc., the radio giant that owns Susquehanna, testified that since the departure of Kemp and McDowell, The Ticket’s ratings and revenues have declined, which he attributed, at least in part, to competition from the pair’s podcast.
Under cross-examination from Kingston, Bennett said The Ticket has 350,000 listeners a week and had net revenues of $22 million last fiscal year – while The Dumb Zone has fewer than 5,000 subscribers.
In her ruling from the bench, Judge Scholer said Susquehanna failed to show that any losses The Ticket has sustained are a result of the new podcast. Indeed, she said, if Ticket fans are irate, as reflected in emails the plaintiff introduced, it could well be because of the company’s well-publicized lawsuit and cease-and-desist efforts against Kemp and McDowell.