The judge in the federal court case between Cumulus Media and two former Michigan jocks has issued a mixed decision, but decidedly more in favor of Johnny Burke and Bonnie Holzhei. They originally sued their former employer, alleging age discrimination, in February. How the case turned out and the “why” behind that is instructive for all owners.
The due were former morning hosts on WHNN(FM), Saginaw.
In a counterclaim, Cumulus alleged their Internet radio show violated their six-month non-compete agreements and they were “impermissibly” accessing confidential information and soliciting Cumulus’ current and former advertisers. Cumulus claimed they were not to use any information from their former show because that is considered the broadcaster’s IP.
U.S. District Court Judge for the Eastern District of Michigan Thomas Ludington wrote in his decision the differences in the employment agreements for Burke and Holzhei were striking and relevant. Burke earned a base salary of $125,000 a year and Holzhei only $31,200 yet her non-compete was for a full year and his was for six months. Cumulus sought to enforce only Holzhei’s on-compete. Her post-employment limitations were more than his as well, restricting the use of her name, her professional name and nickname for advertising and publicity.
In the face of declining ratings Cumulus, terminated their employment, citing their refusal to play more music as one reason. Burke and Holzhei alleged they lost their jobs because of their ages, 61 and 53 respectively, and were replaced by jocks in their 30s.
Their Internet show is similar to their former morning show and Holzhei continues to use the name “Blondie.” Cumulus objected to that, alleged they still use the WHNN calls and said the broadcaster has lost at least one advertiser since the show began streaming.
Overall, the internet show can continue. Burke and Holzhei won a big decision, in that the judge decided a streamed show is not the same as a radio station, agreeing with the DJ’s arguments.
Burke and Holzhei argued they did not solicit any station sponsors; they all came to them, however the judge told them specifically they cannot solicit WHNN advertisers. The judge also agreed with Cumulus that the DJs must stop using the WHNN calls because those are trademarked-protected. Burke testified he got Twitter support to remove the calls from his account.
They cannot use the phrase “Tweet of the Day,” or any other segment created when they worked for Cumulus.
Cumulus tried to prevent Holzhei from using the “Blondie” nickname but lost that count because the judge said the broadcaster failed to prove that “it developed the nickname or any features of the Blondie character. Instead, it is undisputed that Blondie has been Holzhei’s nickname since she was a child,” Judge Ludington wrote.
Cumulus also claimed the DJs had access to confidential Nielsen rating information, but the judge said that wasn’t proved.
The judge denied a Cumulus request to make the DJs turn over a detailed accounting of their new business income; nor will he award Cumulus payment for attorney’s fees, costs and interest.