If you are following the ESB mess, you should peruse the following documents. The first one is from the law firm that represents the Empire State Building in the case against Pacifica, the second is an affidavit submitted in the name of Pacifica's CFO, Sam Agarwal, and the one signed by Berthold Reimers, contains his spin.
I don't know who actually wrote the two something-for-nothing pleas, but they have Reimers' tired I-didn't-do-nuttin' all over them and—as someone notes in the comments section below—these are not wholly original documents. Apropos the Comments section, I recommend reading what some of our astute visitors have to say.
ESRT Empire State Building
Agarwal
Berthold Reimers
Call The Empire State Building people and urge them to oblige WBAI to pay every cent they owe: No deals. No escape from the contract.
ReplyDelete212 687 8700
I agree.
DeleteAbsent the most sympathetic judge ever, these arguments are transparent, transparently clumsy, legally meaningless, and will not fly.
ReplyDelete~ 'indigopirate'
From a legal point of view, these affidavits are ridiculous; and are entitled to have absolutely no weight in opposition to the ESB motion.
DeleteChris,
ReplyDeletePlease note that Andrea Katz is listed as Interim Development Director after 7 years.
Steve "Bloodsucker" Brown has sucked the life out of WBAI with the hiring of Berthold Reimers and Andrea Katz.
Why doesn't anyone place the blame where it belongs- with Steve Brown and his happy psychophants. Pyscho not Sycho. Perhaps I have coined a new word.
Ed Manfredonia
There is so very much blame to go around, surely, and stretching for the many long decades since Percy Sutton’s people on the board accomplished their little coup in the late 1970s, playing on white liberal guilt and radically (pun intended) redefining WBAI’s ‘mission’ as one of leftist advocacy along racial/racist lines.
DeleteIt’s possible, I suppose, to single out those with particular responsibility, whether the Secular-Sainted Samori Marksman, Hero of the People’s Marxist African-Caribbean Revolution, or the many, many others who have followed since.
The blame, I would argue, lies not with particular individuals, worthy of scorn and condemnation though they may be, but with the institution as it abandoned and betrayed its foundational purposes and goals and then, in turn, became nothing more than a scam cash-machine for WBAI/Pacifica’s operators.
Would that they might find their just deserts, though I doubt that will come to pass.
~ ‘indigo, pirate’
Marksman was certainly no saint - in fact, many thought he was evil, as I do. The day he died was a relief - a dark cloud had been lifted, but the stench he left was unmistakable.
DeleteDo we have available a copy of the ESB's actual motion for Summary Judgement?
ReplyDelete~ 'indigo'
I'll check with Tracy.
DeleteAll the motions, affadavits and all else can be found at
ReplyDeletehttps://iapps.courts.state.ny.us/webcivil/FCASSearch?param=P
You will have to jump through a few hoops but there will be a search page -- search for Pacifica Foundation as defendant.
ESB has provided a ton of detailed documents describing deliquency. They must have spent a fortune in legal fees already -- and they are demanding legal fees on top of all else.
Aside from pleading hardship and worthiness, the doctrine of laches is their only defense.
That means that since WBAI has been paying $12k monthly since 2014 and ESB has not complained overmuch prior to the lawsuit, that implies ESB has somehow accepted this lower figure. There apparently have been a few meetings where words were said but not written down.
Judge Judy says, "Get it in writing!"
I'll once again repeat that I'm neither an attorney nor expert in this area. I have, however, read what appear to be the most relevant documents presented electronically to the court (thanks for providing that link).
DeleteESRT appears to present a simple, straightforward, well-argued case, and also appears to have all relevant facts on its side.
WBAI seems only to plead for special consideration because, well, because they’re WBAI. This seems to me rather a weak argument.
Weak, too, in the extreme, is their argument that claims ESRT accepted de facto an altered lease agreement – despite the fact that there’s absolutely nothing in writing, of any sort, or any other objective reason to believe that to have been the case.
Weaker, still, it appears they haven’t even any notes of their own re these meetings in which they now claim ESRT accepted a radically amended lease agreement.
So… I’m no expert, but their ‘case’ seems to me not in fact to exist.
ESRT argued that their arguments should be dismissed with prejudice, which seems to me, a layman, perfectly reasonable.
~ ‘indigopirate’
A bit off topic, but if you didn't catch Geoff Brady last night, you should check it out. He essentially did a laughable infomercial for the Zapper by having people come on and give their testimonials of how it cured all their ills.
ReplyDeleteObviously, Brady's ego is still wounded by his verbal beat down from Crosier, and he's looking to rationalize putting this crap on the selling block. Can the Pacifica ED fire someone? If so, Crosier should fire Brady and ban him from station premises.
SDL
It is very much on topic. This zapper nonsense is illegal, immoral and highly damaging to the station. Reimers and Bates are not just unrepentant about it but are actually disappointed about being made to pull it. They know very well that the zapper is BS but they don't care. Its easier to push the zapper than actual trying to improve the station.
DeleteAmazing that they can't get themselves together enough to just hawk Black Lives Matter T shirts, hats, posters and toilet paper.
DeleteSDL
Chris,
ReplyDeleteI believe that the Zapper is nothing but a TENS unit- price $25.
Ed Manfredonia
I'm no lawyer, let alone an expert on any of the issues involved. So, for what it's worth, the ESB affair sounds no different, to me, than a case involving a tenant who doesn't pay rent. The difference is, for me, that I have a bit more sympathy for the landlord, if you will, than I normally would. That is a result of the entitled attitude that forms all of BAI's and Pacifica's argument against the ESB.
ReplyDeleteAnyone notice the affidavits sound remarkably alike? Identical language in places. I bet they started as lawyer written boilerplate, later edited.
ReplyDeleteExcept at the end Argawal says, "... I was shocked when I learned that Plaintiff had commenced this action."
And Reimers says, "... I was shocked when I learned that Pacifica had commenced this action."
Shocked I tell you. Did Reimers have a covfefe moment?
jim
Good observation, Jim.
DeleteThis whole thing has a regrettable covfefe aura about it. Between WBAI and Trump, I think lies may be the new truths. :)
I have read Pacifica's memorandum of law in opposition to ESB's motion for summary judgment. The arguments presented are very weak. Also, it should be noted that, procedurally, Pacifica does not have the last word. ESB can (and probably will) respond to Pacifica by submitting reply papers on June 30. These papers (if submitted) would probably be available on line next week.
ReplyDeleteA question too, of course, is what happens next if indeed the court rules they owe ESRT ~$2.1m+. Clearly they'll disintegrate to at least a considerable degree, but what form will it take? Will they completely collapse? Will they seek voluntary bankruptcy?
ReplyDeleteIt's difficult to imagine, given their long-standing spectacular internal strife and dysfunction, that they could manage to address the situation in anything approaching a coherent fashion.
~ ‘indigopirate’
I think bankruptcy is a distinct possibility, station dumping is another. The fact is that the fan base is reduced to a not-so-precious few... not enough people care what becomes of Pacifica, a growing number would take its vaporization with a shrug.
DeleteThen, of course, there is the possibility of former listeners demanding reparations. :)
If ESB wins the motion, it will enter the judgment against Pacifica. The next step would be the filing of a judgment lien against any and all property owned by Pacifica. Under the "full faith and credit" clause of the U.S. Constitution, the New York judgment could be entered and enforced in any state in which Pacifica owns property.
ReplyDeleteThank you, that's very helpful clarification as to the mechanisms by which the process would unfold.
DeleteIs there any advantage or likelihood that Pacifica will seek voluntary bankruptcy protection? My (layman's) understanding is that in order to do that they'd have to present a credible survival plan, and I don't see that as probable.
~ 'indigo'
If the ESB were to get the MSJ granted, the idiots on the PNB will argue for as long as they can about how to beg/borrow/steal the money to pay it off. Of course, that's if they have time between arguing about negotiating a payment plan with the ESB to pay it off... in between Cerene and Adriana making points of disruption.
ReplyDeleteSDL
I agree as to your expectation of their behaviors.
DeleteI cannot, however, imagine the ESRT negotiating anything resembling a payment plan.
Why on earth would they?
They'll simply move to collect.
As they should.
~ 'indigopirate'
I didn't mean that the ESRT would be open to any negotiations. I only meant the PNB morons would argue about negotiating. You know how they use imaginary ideas to delay the inevitable.
DeleteSDL
Point taken. No worries. My apologies for my misinterpretation.
DeleteLOL I can imagine them arguing about 'negotiations' after they've been off the air and/or out on the street for many months or years.
~ 'indigo'
Yeah, they could get together in a private teleconference and argue just like the good old days. Kind of like how Babbling Bob still thinks it's 1969...
DeleteSDL
Has he gotten past 1968, then?
DeleteSurely that's a positive sign.
He always left Master a pig-sty after he'd been on, even compared to certain others. Clearly he never grasped elementary social skills like picking up after himself.
~ 'indigo'
In his mind, he was a star.
DeleteI suspect we may safely assume that, in his mind, he still is.
Delete~ 'indigopirate'
Uhhh....he's....not?
ReplyDeletePacifica and WBAI must be pretty scared about seeing the MSJ granted, considering all the promos that WBAI is doing for listeners to take action on it.
ReplyDeleteThe only thing that they seem to be able to offer as a defense is that the lease is an unconscionable contract. My question is still are any other transmitter room rental leases anywhere in the vicinity of WBAI's? If not, there could be a question. However, if so, I think WBAI is screwed.
SDL
I should reword "are any other transmitter room rental leases anywhere in the vicinity of WBAI's?" since it could be misunderstood. What I meant is whether there are any other ESB transmitter room rental leases with other radio stations that are approximately of the same financial level and feature similar stipulations as does WBAI's?
ReplyDeleteSDL
However, the rental paid by other transmitter lessees NOW is irrelevant. For the defense of unconscionability to apply, the contract has to have been unconscionable at the time it was made; later circumstances that make the contract extremely one-sided are irrelevant
DeleteI may have missed it in the course of looking over some but not all of the filings to which you helpfully pointed, but I saw no clear and explicit reference to unconscionability per se as opposed to a lot of arm waving and noise about being (supposedly) a worthy institution and a nonprofit and nice people who love dogs (something like that, I found it hard to read those statements for the tears welling in my eyes). The only claim I saw asserted was laches (a term new to me, but I was vaguely familiar with something along the lines of that concept as a layman).
DeleteAs for the lease, I recall there having been numerous references in recent years in which the terms of the lease were criticized and my recollection says that at least a fair number of them criticized the length of the lease, noting that at the time WBAI thought it terribly clever and prudent to sign a lease extending to 2020 (perhaps they didn’t see clearly enough?). So I don’t think they can claim ESRT held a gun to their head (though I’m sure they’ll try).
~ ‘indigopirate’
I believe that the Pacifica Memorandum of Law uses the legal term "unconscionability". In any event, the whining in the affidavits about the lease "not being fair" is, in essence, a plea that the lease should not be enforced because it is unconscionable.
DeletePoint taken. Thank you.
Delete~ 'indigo'
I’ve googled laches a bit and, while I won’t make the mistake of thinking even for a moment that that makes me meaningfully knowledgeable, I’ll make a simple point or two, simply as a means of putting the statements out there for correction by those more knowledgeable if my understanding is wrong. So…
ReplyDeleteThe principal aspects of the possible validity of an assertion of laches as defense on the part of the defendant appear to be: Delay, Unreasonableness, and Prejudice.
Delay: It may be that the ESRT has taken action, first filed at the end of 2016, precisely because to continue further without taking formal legal action might give rise to a claim of laches as a defense. The critical component of delay would seem to be whether or not it placed defendant in an untenable position because the time elapsed made the defendant’s position untenable in and of itself. That would seem not to apply to WBAI. The fact that WBAI/Pacifica had become financially unable to make payments specified in the contract as of June 2014 would, alone, seem to make clear that any claimed delay had not negatively affected WBAI/Pacifica’s ability to meet the terms specified in the contract. WBAI/Pacifica had positively asserted by June 2014 that it was unable and unwilling to meet the terms of the contract, and it repeatedly continued to do so, so clearly any claim on defendant’s part that a supposed failure on the part of ESRT to take formal legal action against it placed it in an untenable position seems effectively risible.
Unreasonableness: Any claim of laches on WBAI/Pacifica’s part thus far presented would seem not even to claim that any alleged delay was unreasonable. Unless I missed it, I see no assertion on defendant’s part that ESRT supposedly delayed taking legal action in order to gain advantage in any way. So far as I saw in admittedly quick overview, no such assertion is even attempted. There’s a good deal of whining that WBAI/Pacifica are very unhappy with the agreement they signed, as to its cost, but that’s all that I see – ‘buyer’s regret’, in effect, which I rather doubt is in any way relevant to laches.
Prejudice: This would seem to completely overwhelm any claim of laches on the part of WBAI/Pacifica. For such a claim to be valid, the alleged delay must not only have existed, and been unreasonable (neither of which appears to be the case), but – critically – it must have prejudiced the defendant’s ability with respect to, eg, presenting appropriate witnesses or evidence in its defense (none of which is the case here), or, perhaps most critically, having led the defendant to make economic decisions it would not have made otherwise – which is certainly not the case here.
So… my meandering blathering layman’s overview-ramble would seem to suggest that any assertion by WBAI/Pacifica as to laches as defense would seem to have no merit. Indeed, it would seem to border on, as I said earlier, the realm of the risible.
As WBAI/Pacifica seem not to attempt to present any other meaningful defense other than ‘We’re nice guys and we can’t afford to pay and since we can’t afford to pay it’s unfair and mean and nasty and bad and ESRT is being elitist and greedy and mean and bad to say we have to pay what we agreed to pay’, I fail to understand their ‘defense’.
Perhaps I’m missing something.
I’m infinitely open to correction by anyone more knowledgeable and/or expert in this area.
~ ‘indigopirate’
In my opinion, your analysis is quite correct. In addition, there is a technical legal point as well. Laches is generally seen as a equitable defense, and, generally, equitable defenses do not apply in a lawsuit for money damages.
DeleteAgain, my thanks.
DeleteIn addition, again not pretending to be an instant expert, 'unconscionability', if they're groping for that defense, would seem to apply if and only if the unconscionable component(s) were present at time of signing, not simply because market conditions have since changed, and their financial circumstances have also since changed.
Again, I'm open to correction.
Frankly, I'm rather enjoying getting some admittedly amateur sense of these concepts and their application in law.
~ 'indigopirate'
You are right on target. The fact that a party to a contract incorrectly predicted the future is not a basis for finding a contract to be unconscionable. The party asserting unconscionability as a defense must establish that the elements of this defense existed at the time the parties entered into the contract.
DeleteOnce again, my thanks.
Delete~ 'indigopirate'
Who was on the PNB when the lease was signed? Who voted to approve it (assuming that the lease, unlike the contract with Democracy Now, was actually presented to the Board for consideration and not signed in secrecy by an ED acting alone). Was there an attorney who reviewed it for what could accurately be termed usurious conditions? Who, and why or why not? Was ESB's acceptance of partial payments over such a long period of time an admission that the terms of the lease took unfair advantage of an ignorant non-profit? As Indivisible as shown us, the weight of public opinion and bad publicity is heavier than many politicians (and by extension real estate moguls) would choose to bear. ESB is involved in serious financial dealings now, and WBAI could, if it were under competent management, alert the general public and the non-profit media world to the potential loss of a (albeit potential) powerful voice. A forensic audit of WBAI's finances might also be illuminating: could the station have handled its money better?
ReplyDeleteYou make some colorful assertions such as ‘what could accurately be termed usurious conditions’ which are precisely that – colorful assertions, nothing more, and for which you provide no actual argument.
DeleteYou also raise question as to the significance or its lack of the acceptance of partial payments which has been discussed here at some considerable length. You might want to take the trouble to read and consider the discussion, of which you appear to be ignorant, irrespective of what conclusions you might draw from it. The claim that the Evil ESRT took unfair advantage of an ignorant starving widow (I’m sorry, or was that ‘unfair advantage of an ignorant non-profit’?) is, again, it seems to me, rhetoric absent argument.
My limitation, I suppose.
As to your final point as I understand it, IF WBAI/Pacifica had had competent management and IF that competent management had produced programming more than four dogs and a fish found interesting and of educational value, then IF they attempted to rally public opinion in support of their valuable services to mankind, someone might notice, and even care.
IF.
These hypotheticals nicely illustrate, I think, that while hypotheticals can be of great use in some analysis and argument this is not such an instance.
Perhaps shouting from the ramparts? Or a random streetcorner? Or staring at the stars at night, hopelessly stoned on one’s personal ‘truth’?
The standard observation is that when facts and argument are lacking people have a tendency to shout, jump up and down, and wave their arms.
I think you’ve nicely demonstrated that concept, albeit figuratively, of course.
Once again, my limitation, I’m sure
The character of your assertions is, I would argue, perfectly aligned with WBAI/Pacifica’s standards – or, for that matter, the standards of our esteemed president, Mr Trump.
Other than that…
~ ‘indigopirate’
ps: A forensic audit would be an entertainment and a delight, agreed, but I doubt WBAI/Pacifica will be considered worth that sort of effort with respect to claims of fraud, etc.
Looks like ESB is pushing hard for judgement tomorrow. There are several new legal documents available here -- https://iapps.courts.state.ny.us/webcivil/FCASCaseInfo?parm=CaseInfo&index=A6%2FZgeqtgkPdPPcs0zQvnw%3D%3D&county=RTDbck4rl0fatIB3cnB7Bw%3D%3D&motion=M&docs=&adate=06/30/2017
ReplyDeleteI only glanced but they are saying that Pacifica's situation is not dire -- they own a fortune in station licenses.
I presume that WBAI reporters will be at the courthouse :)
I find ESRT’s argument clear, comprehensive, and devastating. As they note, Pacifica offers no valid arguments in law, nor evidence, and in effect simply attempts to elicit the court’s sympathies which is, in fact, no defense at all.
ReplyDeleteIt will be interesting to see how the court rules.
~ ‘indigopirate’
Oh, please, judge... We are but poor leftie anti-racist social justice warriors who are entitled to a free ride on the ESRT's money...
ReplyDeleteSDL
ESRT's reply memorandum of law completely demolishes the weak arguments that Pacifica has offered up in opposition to the motion for summary judgment.
ReplyDeletePeople who claimed to have been negotiating with ESRT since 2014: Bernard Duncan, iED (while Margy Wilkinson was chair), Raul Salvador, CFO (while Margy Wilkinson was iED and chair), John Proffitt (while Lydia was iED and chair). I wonder why these others had nothing to say as to what transpired during this time and their various "negotiations."
ReplyDeleteTrying to figure out what this lot thinks it's doing is every bit as fruitful as trying to figure out what Trump and his people think they're doing.
Delete~ 'indigopirate'
I have wondered—here and privately—why Proffitt hasn't popped in with his direct experience. He did, after all, meet with the ESP people and, as I recall, came away troubled but with some hope. My impression of Salvador is that he goes with the wind, but was on the side of the takeover faction. Wilkerson? Well, she was/is definitely on the wrong track. a major cleanup has been needed for several years—we are seeing the culmination of years of neglect and destructive efforts.
DeleteI think Proffitt wants to forget his Pacifica months.
DeleteSDL