From 'indigopirate'
These recent filings from Himmelstein appear to me, a layman, to attempt to do two things: 1) Argue explicitly as opposed to implicitly for unconscionability as to the contract; 2) In support of that attempt, introduce a statement from Crigler, a well-regarded communications lawyer.
There is a great deal of noise in the unholy mess of Himmelstein’s arguments as presented, much of which seems to me to strongly suggest that Himmelstein is utterly and absolutely well beyond their depth. In addition to the sheer confusion of presentation and argument and a seemingly near-random presentation of citations in support, consider one trivial but striking minor item: Himmelstein at several points employs as if in quasi-magical fashion the legal phrase ‘nun pro tunc’. The actual term, however, is nunc pro tunc and would seem to me to have little if any valid applicability in this context, and even less as invoked by Himmelstein.
Perhaps I err.
As to substance:
Previously Himmelstein had at best argued en passant and implicitly for unconscionability. They seem, now, to be attempting to have another go at it, emphasizing in argument that it’s an affirmative defense while in no way addressing the shortcomings of that argument already addressed by ESRT – they simply repeat that market conditions were sharply adverse at the time the lease was signed, and they produce a statement from Crigler, a communications lawyer, to that effect.
ESRT has already fully addressed the unconscionability argument, though it was only implicitly presented, and none of this new material presents any new evidence of any sort that I can see.
‘Buyers regret’ that conditions at the time of lease favored ESRT and that in the time since WBAI/Pacifica has beggared itself is a less-than-compelling argument in my opinion.
It will be interesting to see ESRT and the Court’s response and judgement
~ ‘indigopirate’
Here are the documents in PDF format:
Notice of MotionAffirmation Support
Exhibit A
Exhibit B
"Market conditions" forced them to sign the ESB lease? Can you get any weaker in your argument?
ReplyDeleteNo, they don't come any weaker, but in this case there really never was an argument. The arrears and general lack of responsibility is compounded by the crap these people foist on what's left of the listenership.
DeleteHimmelstein is a good law firm, doing what it should be doing in a losing battle - using any and all delaying tactics to try and slow or stop a defeat. Don't ask how I know about Himmelstein, because i won't tell you, but they will take ANY real or specious item and try to use it, which is what an attorney should do.
ReplyDeleteIn the end, I think WBAI and the ESRT will negotiate (for real this time) and come to a financial and back payment deal of some sort. However, I see WBAI defaulting on the deal at some point and a new show beginning for us all to laugh at.
SDL
I agree that, Reimers' WBAI will probably wangle a short lived extension and ultimately crash for good. There is nothing left to warrant it staying on the air. New York deserves better,
DeleteThe arguments presented are a farrago and an embarrassment. If they constitute the work of ‘a good law firm’ our criteria appear to differ.
Delete~ ‘indigo’
I can only tell you my experience with them. However, WBAI has no arguments, so they have to throw whatever bullshit around that they can. I think Himmelstein wants to get negotiations going, if possible, by looking like they will fight.
DeleteSDL
With respect: I disagree.
DeleteTemporizing may or may not be an appropriate strategy – it depends, as do nearly all things, on the particulars.
I have no knowledge of this particular judge and his temperament, but as a rule presenting ill-formed, ill-informed, ill-argued submissions of the sort we’ve seen from Himmelstein serves no purpose other than to show the judge you’re ill-prepared, ill-informed, and out of your depth – but that you are prepared to waste their time.
I would argue that this is rarely helpful.
Temporizing is very nearly never appropriate if you’re up against the pros from Dover.
As in the case of a judge, you’re likely only to annoy them, and they’re more likely to give you the back of their hand.
ESRT is not a small-time landlord with twenty or thirty residential buildings, anxious for their money.
They want their money. They’re entitled to their money. Pacifica has the money, in the form of property and licenses. The only arguments presented by Himmelstein on behalf of WBAI/Pacifica have been absurd, bordering on laughable, and more appropriate, if at all, ever, in a minor dispute over repairs or back rent in Housing Court.
I have no knowledge of the particulars of ESRT internal position and perspective, but I think WBAI/Pacifica’s ‘strategy’ is both sad and ridiculous.
But I’ve been wrong before, who hasn’t?
After all, I’m simply an…
~ ‘indigopirate’
I'm not disagreeing with you, but try to keep in mind we're dealing with WBAI, which has no case. All they can do is throw any shit at a wall and hope something sticks.
DeleteLet's go back and remember what the "Gentleman's Agreement" actually was - WBAI would pay $12,000/month ACCRUING the difference to be paid in the future. WBAI has been conveniently forgetful of that last part recently.
WBAI has also been conveniently forgetful about how they have had periods where they didn't even pay the $12,000 for two or three months in a row, only to finally pay up when pressured.
For some reason the $12,000 number is stuck in peoples' heads, but WBAI has proven they can't even afford that, so that number should not be used as a basis for anything.
In the end, WBAI is an unknown, little radio station with very few listeners and not nearly enough money to operate. It may live as a memory to some older people who listened to it many years ago but no longer, but now it is meaningless. One need only look at what sort of premiums bring in donations to know what sort of listeners they have.
SDL
It’s safe to say we’re overwhelmingly in agreement with respect to WBAI/Pacifica and their worthlessness.
DeleteGiven the fact that, as I understand it, Himmelstein is supposedly to make some sort of move today, and there’s to be some sort of offer from ESRT tomorrow, with the actual court date still set for 2 August, where, exactly, ESRT is coming from may become somewhat clearer fairly shortly, as well as, I suppose, the negotiating position of Pacifica and the perspective of the court.
As a person in no way fond of WBAI/Pacifica, if it were my call to make I’d offer to settle for the full amounts due and a buyout of their remaining contract at the price of a signal swap and the monies derived therefrom.
That, though, is just me, and I’m non-objective.
The actual situation may become clearer, I would hope, in reasonably short order.
Again, speaking only for myself, I’d be delighted to see them dead or marginalized to less-than-nothing at all.
That’s only me…
~ ‘indigopirate’
Personally, I think the end result will be a deal where no one is happy. WBAI will get stuck for a couple of million, but the ESRT won't get all they are owed. Kind of a middle way. if that happens, be ready for tons of beg-a-thoning!
DeleteSDL
Bear in mind that there's no indication of meaningful change in programming and presenters. The continuance of what they are presently scaring listeners off with is not going to become an attraction.
DeleteWhy do Reimers and his coterie of confidants and con artists not see what so many of us have noted and history has devastatingly proven.
The clowns won't change because they are never personally penalized for anything. They get away with their nonsense no matter what happens around them. There's no incentive to clean up their acts.
DeleteSDL
One would think that there is strong incentive in a mounting pile of unpaid bills and a a fully justified lawsuit threatening to pull the plug.
DeletePerhaps Reimers, Credico and the rest of these fools think they can form a circle and blather at each other... which is pretty much what they have been doing in recent years.
Surely, Yugoslavia can retroactively pay for WBAI's fabled "coverage" of their civil war. WBAI has a lot in common with the Yugo, doesn't it?
Those bills aren't personal. These clowns aren't losing anything out of their own pockets because The Remanants pick up the bills. That's why they don't even care about CPB money.
DeleteSDL
They are desperately attempting to preserve the status quo, not because the alternative will drain their wallet (OK, in some cases...), but because they need the false sense of importance that being on the air gives them.
DeleteIf CPB money can prolong their fantasy, they want it to kick in, but they are not willing to earn it.
BAI wants me to send in money to be used to fight a bogus legal argument? Just end this and pay ESB everything that you owe. Besides, I'm surprised that the presiding judge in this case hasn't thrown the book at Pacifica for tying up the courts with a ridiculous case.
ReplyDeleteI think Reimers et al have found a business model that works for them. There are enough desperate elderly people, many of them physically ill, listening to the radio that a few of them accidentally land on WBAI and get tricked into buying some snake oil and a bit of hope.
ReplyDeleteWBAI can pull in a few million a year from that, even if there were literally dead air during the non-pledge-drive periods. There is a total disconnect between the regular programing and the pledge drives, because a minority of wbai money comes from actual listeners. The exception being the health shows that target the ill, desperate, and vulnerable on a weekly basis.
But basically, Berthold has landed on a minimal revenue stream that is not insubstantial. As long as they still have that 99.5 slot on the dial, they can leverage the potential reach of millions of listeners in nyc to swindle a couple hundred desperate elderly people every couple months. That's not a totally stupid business model, as long as you are completely unscrupulous.