HOWARD STERN'S NEMESIS DEFENDS STERN AGAINST CBS
...“Because the Pimp is More Culpable than the Prostitute”, so says Jack Thompson, Howard Stern’s chief nemesis (“This lunatic lawyer in Miami got me off the air” –Howard Stern), who is now actually DEFENDING Stern in the face of the blockbuster lawsuit just filed by CBS.
Thompson appeared on Clear Channel’s WFLA-AM March 1 in Orlando—one of the very stations Thompson helped kick Stern off of in February 2004—to explain that CBS’s lawsuit against Stern is without merit, both on the facts and on the law!
Said Thompson, “The core allegation in the CBS suit, which seeks in excess of $200 million in damages from Stern, Stern’s agent Don Buchwald, and Sirius, is that Stern harmed CBS Radio (then known as Infinity) for promoting his move to Sirius for well over a year, thereby converting valuable CBS airtime to his own and Sirius’ use. But there are huge factual and legal problems with CBS’s argument.”
Thompson contends that Howard Stern’s promotion of his then impending move to Sirius actually boosted Stern’s ratings for CBS, so no harm was done and that if CBS didn’t like that Stern was plugging his new gig, that CBS management had a remedy for that: their 7 second “dump button”, the same switch they flicked regularly whenever Stern’s language crossed the line, which was quite often.
“A pimp is more culpable than his prostitute,” quipped Thompson, adding, “CBS pimped Howard Stern for two decades for all he was worth to them, and now they’re shocked to find he is a prostitute who has sold his wares to the highest bidder? Please.”
Truly there is no love lost between Howard Stern and Jack Thompson. Thompson not only was the point man who bumped Stern from the terrestrial airwaves, forcing him into the arms of Sirius, but Thompson even went so far as to write a book about the man who “mentally molests minors”. But truth is truth and Thompson contends that regardless of how despicable Sterns mouth can be, the more despicable actions are now coming from top management of CBS.
In November 2004, Jack Thompson was part of a $3.5 million Consent Decree entered into between Viacom/Infinity and the Federal Communications Commission whereby Infinity promised to put into place and did install new and better technology to edit the Howard Stern Show in real time as it was being aired. Thus, Viacom/Infinity/CBS had in place the enhanced “dumping” capability to utilize the time delay to remove all references to Sirius and his announced move. CBS chose not to do that. CBS then chose not to remove Stern from the air for the promotion of Sirius, except for a paid one-day suspension last November.
Secondly, the reason why CBS chose not to edit Stern that is that Stern’s Arbitron ratings remained high and were arguably even enhanced by people tuning in to hear daily about Stern’s running feud with CBS and his move to Sirius. In other words, CBS actually used Stern’s discussion of the move to Sirius to make more money for CBS. CBS, however, now claims that Stern’s discussion of Sirius cost it money. Just the opposite is the case.
Thirdly, CBS is proceeding in this lawsuit under the bizarre notion that because Stern has made money--$200 million in accelerated payment of Sirius stock—that CBS is entitled to the extra money Stern has cleverly made. The measure of damages, however, in a lawsuit is based upon what the plaintiff has lost not what the defendant has made. Thompson contends that CBS needs better lawyers, referring to CBS’s Steve Lerman at Leventhal, Senter and Lerman as a “tactical idiot”.
Although Thompson disapproves of the foul content of Stern’s show, he said that the CBS suit looks like exactly like what Stern says it is: “a personal vendetta by CBS’ Les Moonves.”
Said Thompson, “Viacom/Infinity/CBS has always been more legally and morally culpable for putting Howard Stern on the air than Stern himself, as it corporately decided to allow him, for more than twenty years, to mentally molest minors for money--money that went to the giant corporation which used Stern as a money machine.”
“Stern has always been unabashed in describing himself as ‘a pornographer who puts a pornographic radio show on the air.’ Stern really can’t help being himself. Now CBS’s Les Moonves, like Claude Raines’ character in Casablanca, is saying ‘I’m shocked, shocked I tell you, to find out’ what (gambling) has been going on here?
The FCC is set shortly to hand down new decency fines against stations for airing indecency on the Howard Stern Show. Miami attorney Jack Thompson ought to know. He is the complainant, and he has received FCC notices indicating this will happen.
If anyone wants to know the underlying strategic reason CBS has sued Stern, this is why:
“When the FCC hands down these new fines, some of which may be huge, CBS wants to be able to say ‘We were unable to control Stern to stop him from airing this stuff. We even couldn’t stop him from promoting Sirius.’ Good luck on that one, CBS. CBS Radio is clearly run by a bunch of liars, and they deserve precisely what they are going to get—everything from the FCC and nothing from Stern,” concluded Thompson.
THE FOLLOWING USA TODAY ARTICLE MAY BE HELPFUL WITH SHOW PREP:
CBS sues Howard Stern, who calls it 'bullying'
NEW YORK (AP) — CBS' radio division sued Howard Stern Tuesday, saying its former star shock jock breached his contract with them when he moved to Sirius Satellite Radio.
The lawsuit, which also names Sirius and Stern's agent as defendants, says Stern improperly used CBS radio's air time to promote his new show with Sirius, which began last month. CBS also says Stern discussed his plans with Sirius without disclosing them to CBS as required under his contract.
Even before the lawsuit was filed in New York State Supreme Court, Stern tried to upstage the action with a hastily arranged news conference in Manhattan Tuesday to strike first at his former employer.
Stern said the lawsuit was meritless, and said CBS was trying to "bully" him. He called the lawsuit a "personal vendetta" against him by CBS Chief Executive Leslie Moonves, whom Stern said held a grudge against him.
Stern said CBS officials knew of his plans to leave for Sirius and also condoned his references to satellite radio on the air and did nothing to stop him when he spoke about it on his show.
CBS Radio had formerly been known as Infinity Broadcasting, part of the Viacom conglomerate before CBS split up with Viacom at the beginning of this year.
Stern called the news conference after The New York Post's widely read gossip column Page Six published an item Tuesday saying CBS was on the verge of filing a lawsuit against him.
Stern moved his popular and bawdy morning show to satellite radio last month after years of railing against decency restrictions imposed on terrestrial radio by the Federal Communications Commission.
CBS wants Stern; his agent, Don Buchwald; and Sirius to return any financial benefits they received from using CBS radio's air time to promote Sirius, including the value of a tranche of Sirius shares that Stern and Buchwald received early for exceeding a target for subscriber increases by the end of 2005.
That block of 34.4 million Sirius shares was originally worth $100 million at the time the deal was announced in 2004, but its value swelled to $200 million by the time Stern actually received the shares at the beginning of 2006, bringing the total value of his five-year deal to about $600 million.
At current prices, the shares are worth about $175 million. Stern's deal with Sirius specifies that costs for producing and marketing the show must be paid out of the compensation he receives.
Sirius spokesman Patrick Reilly said the company didn't have a comment yet because its lawyers had not reviewed the suit. Copyright 2006 The Associated Press
ABOUT JACK THOMPSON…
Pictured on the cover of the book he wrote entitled, “Out of Harm’s Way” (Tyndale House Publishers, Nov. 2005), a book highly critical of Howard Stern, Jack Thompson is a 1976 graduate of Vanderbilt Law School, where he was a classmate of Al Gore.
Jack Thompson is a former “hands-off-business libertarian” and “First Amendment absolutist” who subsequently became convinced that the entertainment industry must be forced into taking responsibility for the brain-altering and deadly results of the violence and indecency it is spewing into millions of homes, families, and minds.
An attorney specializing in litigation against the entertainment industry since 1987, he has been interviewed for hundreds of radio and TV programs about the link between violent video games and teen violence. His legal successes include: securing the first FCC decency fines (1989); securing the first verdict that a sound recording is obscene (2 Live Crew case in 1990); forced Time Warner to pull rapper Ice-T’s “Cop Killer” from store shelves worldwide (1992); and received ACLU’s “Top Ten Censors of the Year Award” (1992).
Recently, Thompson has represented parents of three girls shot at a school in Paducah, Ky., by a 14-year-old video gamer. He also got shock jock Howard Stern kicked off all Clear Channel radio stations and Clear Channel fined $495,000 for illegal indecent broadcasts. He also successfully predicted a “Columbine-type” incident on national television one week before it occurred, and he also predicted that the DC Beltway Sniper triggerman would be “trained on a sniper video game.”
A frequent speaker on college campuses, Thompson lives with his family in south Florida where he is a lay leader in his Presbyterian church.
THE FOLLOWING IS A COPY OF THE CBS NEWS RELEASE ON THE LAWSUIT:
CBS Radio Inc. Files Suit Against Howard Stern and Related Parties for Multiple Breaches of Contract, Misappropriation and Unjust Enrichment
Tuesday February 28, 2006
NEW YORK, Feb. 28 /PRNewswire/ -- CBS Radio today announced that it has filed suit against Howard Stern, his company One Twelve, Inc., his agent Don Buchwald, his agent's firm Don Buchwald & Associates, Inc. and Sirius Satellite Radio, Inc.
The lawsuit is for compensatory and punitive damages for multiple breaches of contract, fraud, unjust enrichment, and misappropriation of CBS Radio's broadcast time. It further seeks damages from Sirius Satellite Radio, Inc. for unfair competition and tortious interference with Stern's CBS contract.
The 43-page complaint charges:
* Howard Stern repeatedly and willfully breached his written contract
with CBS Radio over the last 22 months of that contract,
misappropriated millions of dollars worth of CBS Radio airtime for his
own financial benefit, and fraudulently concealed his interest in
hundreds of millions of dollars of Sirius stock while promoting it on
the air.
* That on or about January 9, 2006, Sirius paid over 34 million shares of
stock, valued at approximately $220 million, to Stern and his agent
because Sirius exceeded by the end of 2005 certain subscriber targets
that were set in the Sirius-Stern contract. The complaint alleges that
the Sirius-Stern contract provided that Stern was to receive this stock
payment in 2010, but it had an acceleration provision that allowed
Stern to receive the compensation as early as January 2006 if these
subscriber targets were met. All of Stern's actions for which he
received this expedited compensation occurred during the time that
Stern was under exclusive contract with CBS Radio, when the Sirius
payment terms to Stern were kept secret.
* This contract thus provided a compelling incentive for Stern to do all
that he could to help Sirius reach the subscriber targets by the end of
2005 so that he could receive his Sirius stock payment as soon as
possible while Sirius's stock was extremely valuable. Without the
accelerated payment, Stern would risk the decline of the Sirius stock
value. By taking action on CBS Radio's airtime in 2004 and 2005, Stern
assured himself of immediate access to $200 million in assets that
could be readily converted to cash.
* By engaging in continuous promotion of Sirius on CBS Radio airtime
without any payment by Sirius to CBS for these advertisements and by
pocketing over $200 million dollars for his personal benefit, Stern
misappropriated millions of dollars worth of CBS Radio airtime for his
own financial benefit and the financial benefit of Don Buchwald, his
agent, and Sirius in contravention of repeated directives by CBS Radio.
* That Stern also breached his contractual obligation to inform CBS Radio
of plans that might have a bearing on his future. Under the Agreement,
Stern had the obligation to give CBS Radio the first opportunity to
discuss participation in radio projects that are conceived during the
term of the Agreement, even if the concept or project was launched or
implemented after the term. Stern ignored that responsibility, and
negotiated and concluded his agreement with Sirius in secret.
* To this day, Stern continues to breach his contract by refusing to
return property that belongs to CBS Radio -- the recordings of his CBS
radio program that, under his Agreement with CBS Radio, belong to the
company.
The suit further charges that Sirius intentionally interfered with and procured Stern's breach of the Agreement. Sirius knew that Stern had a contractual obligation to maximize the prospects for the success of the CBS Radio program and to comply with his duty of good faith. Sirius intentionally induced and caused Stern to breach these contractual provisions by offering to accelerate Stern's payment of millions of dollars in stock options to promote Sirius on CBS airwaves and by concealing Stern's stock interest from CBS Radio.
The complaint in this lawsuit was filed in the Supreme Court of the State of New York, County of New York.
--Source: CBS Radio Inc.