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Court Denies Cumulus Application For Restraining Order Against ‘Dumb Zone’ Podcast Hosts.


In a partial victory for former KTCK Dallas hosts Dan McDowell and Jake Kemp, a federal court has denied the latest courthouse move by Cumulus Media, their former employer, for a preliminary injunction to stop the hosts from releasing new episodes of The Dumb Zone podcast. Judge Karen Gren Scholer says in a brief order that Cumulus came up short on meeting the high legal bar for granting what’s known as preliminary injunctive relief.


To meet that legal threshold, applicants are required to establish that their case is “likely to succeed,” that they will suffer “irreparable harm” without it, that the “balance of equities tips in their favor" and that an injunction is in the public interest. The order says Cumulus “failed to ‘clearly carr[y] the burden of persuasion’ on at least one of the requirements for each claim on which Plaintiff moved for injunctive relief.” The judge added that an opinion explaining the court’s reasoning would be forthcoming.


The ruling comes after a Sept. 15 hearing where attorneys for both Cumulus and its former early afternoon personalities at sports “The Ticket” KTCK-FM & AM in Dallas argued their case.


The legal back and forth began Aug. 4, when Cumulus sued McDowell and Kemp in the U.S. District Court for the Northern District of Texas. The broadcaster alleges the pair violated their non-compete, non-solicitation, and non-disparagement clauses by launching “an identical” podcast to their former radio show at KTCK (“The Hang Zone”) and hijacking their former radio show’s social media accounts.


An initial application filed by Cumulus for a preliminary injunction to force Kemp and McDowell to shelve “The Dumb Zone” podcast was rejected in mid-August by Scholer, who wrote that Cumulus failed to show “that immediate and irreparable injury, loss, or damage will result” from the hosts continuing to anchor the podcast.


After Cumulus subsequently filed an emergency motion for an injunction, the court referred the case to a mediator and a hearing was held Aug. 21. After the hearing, the parties agreed to continue trying to resolve the dispute via mediation and the hosts agreed to cease uploading any new episodes of “The Dumb Zone,” and to not promote the podcast or discuss their dispute with Cumulus publicly until an Aug. 29 hearing. But the Aug. 29 hearing was cancelled to allow more time for mediation and the hosts then resumed uploading episodes of their podcast.


Cumulus maintains “The Dumb Zone” is “a carbon copy” of “The Hang Zone,” which the pair hosted for KTCK for three years.


McDowell and Kemp, who had been with “The Ticket” since 1999 and 2006, respectively, resigned July 14 after more than three years in the noon-to-3pm slot. Each of the hosts had a six-month non-compete clause in their contract with Cumulus, along with confidentiality and non-solicitation provisions.


The hosts have asked the court to dismiss the suit, arguing that the federal court lacks jurisdiction to hear the case and that the National Labor Relations Board has exclusive oversight for claims raised by Cumulus that the hosts secretly recorded their managers “during contract negotiations to use as content on a future show.”


Kemp and McDowell have also disputed allegations that they have violated the non-disparagement clauses of their employment agreements. Cumulus has alleged that the hosts “have already disclosed confidential information on The Dumb Zone” but the hosts contend that they have only discussed the cease-and-desist letter sent by the company to them, Kemp’s compensation history, skeptical comments from station management about how much money the pair could earn from podcasting, and the station’s new talent lineup.


If Judge Scholer decides not to dismiss the case, Kemp and McDowell say that she should order Cumulus to provide a more definitive statement of its claims against each of the men. They contend that the lawsuit brought by the company is “so vague and ambiguous” with broad allegations against both of them that Kemp and McDowell are unable to prepare a response.


A court-ordered status conference between the two parties was held Monday with a follow-up status conference set for Tuesday, Sept. 26 at 8:30am.

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