Tsuris is a Yiddish word for trouble or aggravation. I’ve heard it all my life (as the Fox family specialized in trouble and aggravation). Tonight, there’s tsuris in store for Howard Stern. He’s being sued by his former employer.
I’ll start with the obvious – I am not a lawyer. Still a quick read through CBS’s press release shows some reasonable grounds for CBS to sue Howard.
I don’t think it was just luck that this came out after the first post-Stern ratings. Now they can show damages. The former Stern stations have tanked.
Most entertainment law suits look like hot air. This looks real. I’m not anti-Howard nor am I pro-CBS. I’m just fascinated by what will come next.
I hate to admit this in a public forum, but I am a lawyer. 🙂
CBS Radio has an excellent case against Stern- but there is one weakness. The company could have mitigated the damage by suspending Stern rather than allow him to “misappropriate” millions of dollars worth of air time, as they call it. They decided to keep Stern on the air as long as they could because it was more profitable to do so- in fact, people were tuning in to Stern to hear him rant against the Man and talk about Sirius, how he might get yanked off the air any minute, etc.
The option was always there to take Stern off the air and withhold payment. CBS is trying to have its cake and eat it too. But they might get away with it- David Boies (of Microsoft prosecution and Bush v. Gore fame) is the go-to outside litigator at CBS. Mr Boies is as good as they get.
Another attorney asked me to post this for him anonymously:
Just read your blog entry on CBS v. Stern. I am emphatically not a fan of Stern’s show nor his persona, but at first blush, I don’t think CBS has a case.
Stern clearly has a right to make a living, and he cannot be expected to wait until the conclusion of his contract with CBS to find other employment (his “future plans”).
His contract with Sirius was no secret and a court is not going to find that he was obligated to reveal its details to CBS. Nor were his statements about CBS and Sirius a secret.
As others noted, CBS did nothing to stop him. They don’t even claim that they complained to him during his time with CBS.
CBS will also have to show damages, not because of Stern’s leaving (that was their economic choice) but because of Stern’s conduct during the contract’s term. They won’t be able to do that.
I think that this could be an interesting case, however, since all parties are rich enough and have enough at stake to push it as far as it can go. We might therefore have some clearer law on non-competition clauses (explicit or implied) and on an employee’s legal obligations to an employer that refuses to retain the employee at his fair market value.
Contrary to your previous blog commenter, I don’t think that the make-up of the legal team on either side will matter very much. At this level of visibility, the issues will be clear, and the courts will decide based on the perceived impact of a decision on the overall economic health of the market.
In this case, I don’t think Stern has much to worry about. In fact, all the fuss will be to his economic benefit.
I agree with the post you put up, Geoff. I’m sure that both sides will be represented by the best. As I’ve had more time to fully contemplate this, CBS has a weak position- for many of the reasons outlined above.
Add another fact: CBS had a dump button for Stern and never once used it. (Perhaps they saw what happened when Pig Vomit took Howard off the air in the movie Private Parts.)
Not to belabor this, but given the talk about a current NBC morning host named Katie moving to CBS to replace Bob Schieffer, one wonders if the Tiffany Network’s behind-the-scenes negotiations with Katie in any way resemble Sirius’s with Stern’s.