The Other McCain

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Dana Loesch, Indentured Servant?

Posted on | December 21, 2012 | 40 Comments

Rumbles of discontent at Breitbart.com, which I’d been hearing from various sources since spring, have finally erupted into actual news, as Dana Loesch has filed a federal lawsuit seeking (a) $75,000 and (b) to be released from her contactual obligations:

St. Louis talk radio host Dana Loesch, also a frequent guest on CNN, alleges in the suit filed in federal district court in St. Louis that the site is refusing to publish her work while “sabotag[ing] her attempts to labor in a similar fashion elsewhere through public misstatements and private threats to sue those who would otherwise employ Loesch.” . . .
Breitbart.com is “binding Loesch to what amounts to an indentured servitude in limbo,” she charges in the suit, which was first reported by the St. Louis Post-Dispatch.

More at the BuzzFeed. It’s unfortunate that matters came to such a pass, and I don’t want to get into the blame game in a situation where I don’t know both sides of the story.

As I said, I’ve heard “rumbles” about the Breitbart.com operation for several months, but having spent so long in the newspaper business — where every newsroom is a seething cauldron of frustrated ambition — it’s something I didn’t want to read too much into.

Dana Loesch is one of my favorite people in New Media, and I know she was one of Andrew’s favorite people. It’s just very sad to see things break down so badly so soon after Andrew’s death.

Click here to read the eight-page text of Dana’s lawsuit.

UPDATE: Now a Memeorandum thread. I’ve printed out the lawsuit and may have further comment after I read it.

UPDATE II: OK, now having skimmed over the lawsuit, the claim is that in October 2011, Breitbart.com failed to exercise its option to renew Dana’s contract for another year, so that her employment thereafter was on a month-to-month basis. In September of this year — perhaps having been offered better terms by another site — Dana gave a month’s notice of her intent to leave Breitbart.com, at which point management claimed that she was still contractually bound to the company, and threatened legal action against any company that hired Dana.

Four word come to minds: Cuckoo for Cocoa Puffs.

Without regard for contracts, it is just plain nuts for Breitbart.com to try to keep Dana if Dana wants to leave. What is this, the Mafia or something, where once you’re in, you’re in for life?

Frankly, I’ve never heard of anything like this before. It simply doesn’t make sense: If, as Dana alleges, Breitbart.com no longer wants to publish her writing, why would they prevent her from taking her work elsewhere? If her services are not valuable to them, why deny her the right to find another publisher who might value her services more?

Maybe management at Breitbart.com can explain this, or maybe I’m somehow misunderstanding the dispute, but what it looks like is, they’re trying to drive Dana Loesch off the Web altogether: She can neither write for Breitbart.com, nor write for anyone else.

How the hell can they do that in America?

UPDATE III: Linked by Doug Hagin at Daley Gator and by The Lonely Conservative. Continuing rumbles indicate that the situation with Dana Loesch may be part of a larger issue with the business model and the management philosophy at Breitbart.com: More like an old-style Hollywood studio system, oriented toward celebrity “star power,” so that if they can’t have Dana Loesch, nobody can have Dana Loesch. Or something like that, anyway.

David Martosko at the Daily Caller points out that, since Andrew died in March, “a coterie of friends of the company’s late namesake has continued to run the  company, most recently hiring a raft of conservative bloggers and reporters that  included former Washington Times staffer Kerry Picket and former Daily Caller  reporter Matthew Boyle.”

Knew they had hired Boyle, a young investigative reporter, but didn’t realize they’d also hired Picket, an ultra-aggressive Capitol Hill reporter. And, to show you how little attention I pay to these things anymore, I hadn’t seen this Dec. 10 story by Betsy Rothstein at Fishbowl DC, talking about Breitbart.com’s Stephen K. Bannon hiring up reporters by the bushel basket load, signing them up to four-year contracts:

Reporters around town being wooed for Breitbart.com include: Katie Pavlich of Townhall, Lachlan Markay of Heritage, Charlie Spiering of the Washington Examiner, Caroline May of The Daily Caller and Daniel Halper at The Weekly Standard.
Some have described a cultish feel to the process, with phrases such as “This is the way Andrew would have wanted it” being bandied about in conversation.

So, if they’ve got all this cash to throw around for hot talent in D.C., why should they insist on keeping Dana Loesch sidelined?

To repeat: Cuckoo for Cocoa Puffs.

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Comments

  • http://evilbloggerlady.blogspot.com/ Evi L. Bloggerlady

    This is terrible news. I do not want to see Breitbart fail and Dana Loesch is great and a conservative national treasure. I am not taking sides, other than hoping this dispute gets resolved, pronto.

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  • http://www.twitter.com/thebadger14 Badger Pundit

    Hopefully this can and will be resolved fairly quickly, as it may just be a matter of having the judge interpret the legal meaning of the contract (if the parties don’t work out some settlement before then). It would be nice to see the matter resolved without all the underlying facts being hashed over in public.

    Buzzfeed posts Loesch’s complaint, but it’s difficult to evaluate exactly what’s going on without seeing the written contract referenced in the complaint.

    On a quick read of the complaint, Loesch’s claim seems simple: (1) Breitbart.com allowed its initial one-year contract with her to go month-to-month starting in October, 2010 (failing to give notice to extend it another full year); and (2) she gave 30-day notice to end the month-to-month arrangement, on 9/13/2011. Apparently the next day Breitbart.com sent her something saying it was invoking an option on the third of three years, starting in October, 2012.

    I’m unfamiliar with the specific Missouri (or possibly California) law applying to the contract, but it seems odd that after allowing a contract to go month-to-month, a party could later try to resurrect a full-year option. But possibly there was some sort of understanding or side deal on that, or there’s some sort of industry practice to support Breitbart.com’s position.

  • http://wizbangblog.com/ Adjoran

    IF the terms are as alleged and they failed to renew their option, it’s just black letter law.

    But as a practical matter, it is almost impossible to prevent someone from taking another position in their field for more money. News organizations hid behind “non-competitive” clauses for years, but those are only enforceable in very narrow circumstances which rarely would include reporters or editors. They were used more as intimidation and preemption than anything else.

    But if the site has been falsely bad-mouthing her to prospective employers, she could own the place in a later civil action.

  • http://twitter.com/rogue1776 K.N.A.B.

    This is very interesting from my perspective. I see very closely eye-to-eye with Dana Loesch on most issues. I’d hate to see her leave the Breitbart.com operation, but think she’ll be successful wherever she goes.

  • robertstacymccain

    Dude, I’ve never heard of a contract like this. It’s more the type of contract you’d have as a recording artist or TV performer than as a journalist.

    Writers are a dime a dozen, and editors scarcely more. I ain’t half-bad, and I haven’t noticed any publishers flashing fat wads of cash in my face lately.
    So the idea of a one year contract, with two additional one-year options … for the love of God, WHY? Was there a risk that the bidding for Dana’s services as an editor/writer might escalate out of control? It makes no sense. And this idea of trying to keep her, when she wants to go … again, why?
    By God, that’s just not the way it works in the news business. If somebody wants to quit, let ‘em quit. And if you don’t like their work, fire ‘em.
    Contract, my skinny white ass! I worked for Wes Pruden, and there was never a day in my more than 10 years at his paper where he couldn’t have fired more — nor a day when I could not have quit on the spot. That is the ONLY way to run a news organization, and I don’t give a damn what anybody tries to tell you about employee “rights,” let alone a fucking CONTRACT!

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  • http://boogieforward.us/ K-Bob

    The whole thing got too big. I couldn’t really enjoy the vibe because it was like walking into a mall, and not a local tavern. Once Andrew left the building, I sort of forgot about them.

    I prefer to filter my news using google, or the heads of bloggers I respect. I don’t have time to wade through all the stuff they have at really big sites. Even PJ Media is too big.

    They were calling for the end-of-blogging, “now that all the big bloggers are working for pay at big sites.” Funny. I spend most of my time on the web at sites like Stacy’s and Doug Ross’, and Scoop’s (just to name a few).

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  • JeffS

    How the hell can they do that in America?

    It sounds more like a Stupid Thing, rather than an American Thing.

    But then, these days, those two are virtually identical.

  • jwallin

    Brietbart.com has made some other suspect moves since Andrew died. I suspect they would not have done things the way they did if he was still there.

    I don’t comment there much anymore (too difficult and you can’t follow your previous comments very easily one thing about everyone having disqus as their commenting gadget is that it stultifies the conversation and doesn’t encourage a back and forth.)

    This is typical when someone who breaks the mold starts an enterprise and then is suddenly removed from it’s operation; it regresses into the same ole same ole and since it’s the same stuff, you go where it’s easier and more informative.

    Like here.

  • jwallin

    That might be the best outcome for the blogosphere. I think they’re trying to become the next Townhall.com and sadly, they’re succeeding.

  • t-dahlgren

    I’m reminded of that phrase from the Glenn Beck Show ‘the fusion of entertainment and enlightenment.’ Never liked that, because it is just too close to infotainment for my comfort.

    But thinking on it, I at least have to credit it for honesty. This is big business and as much as outfits like Breitbart are engaged in aggregating or even gathering news they are also about the creation and marketing of the persons involved in those activities. In doing so many of those people acquire a marketable persona. Well, that means the people involved in that creation have an interest in the personality they’ve helped create, maybe even something akin to a property right.

    I’m not arguing this as a matter of settled law, and from a straight contractual standpoint I don’t think Breitbart has much to stand on. I’m just pointing out that maybe what Breitbart is doing is trying to lay claim to something that in practice is often viewed as rightfully theirs. I also think the old line media organizations have been doing this very same thing for a long time, they just have the big bucks and media savvy to keep the dirty laundry out of the public eye.

    I hope they settle the issue to the benefit of both parties, but also hope this serves to pull back more of the veil that hides the truth of what goes on in the ‘news’ media.

  • SDN

    Classic MBA “succession fail” scenario; seems to come up every time a company run by a charismatic leader loses the leader suddenly without a designated successor and a plan.

  • http://twitter.com/DaTechGuyblog Peter Ingemi

    Actually it sounds more like Baseball’s old reserve clause, if accurate.

    I don’t know details either but it seems to me once Dana Loesch because a semi regular on TV she became what Andrew had suggested we become, a full fledged Media figure that could not be ignored.

    With Andrew Dead she is really the only Breitbart figure crossing over to MSM on a semi regular basis, although I suspect Kerry Pickett has great potential there.

    I don’t know the details but I’l just say Andrew when he was alive and the Breitbart people and writers have never been anything but nice to me (although I’ve never worked for them) and that goes for Dana and her husband who have been kind, friendly and accessible.

    A real shame

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  • Wombat_socho

    I was thinking the same thing (about the old reserve clause) when I read Stacy’s post.

  • http://twitter.com/FilmLadd Film Ladd

    ‘Twas fairly obvious when on the anniversary of a certain “gate” (that really pushed AB into the stratosphere) that things were amiss in Camelot – they ignored new developments in the story, (and your predicament, McCain), until the very last minute, publishing Loesch’s article on the Weinergate very late in the afternoon.

  • http://twitter.com/FilmLadd Film Ladd

    ‘Twas fairly obvious when on the anniversary of a certain “gate” (that really pushed AB into the stratosphere) that things were amiss in Camelot – they ignored new developments in the story, (and your predicament, McCain), until the very last minute, publishing Loesch’s article on the Weinergate very late in the afternoon.

  • kryon77

    It’s not spelled out in the complaint – which seem strategically vague at points – but the complaint seems to hint that Breitbart.com was sending out explicit or implied threats of an Interference with Contract claim against those who would hire Dana Loesch.

  • http://www.twitter.com/thebadger14 Badger Pundit

    Agreed. But instead of thinking of a TV/music contract, or baseball player contract (comment by Peter Ingemi), I thought of a football or basketball coach contract. If, somehow, under the contract Loesch signed with Breitbart.com, it has a right to her services through October, 2013, then isn’t she like the coach who wants to leave to coach for another team?

    If that’s the contract model we’re looking at, there’s a pretty clear template. The coach stops coaching for the first team, signs a contract with the second team — even though that risks a breach-of-contract suit — and the second team negotiates with the first team a settlement of any contract breach (and of course a settlement of any claim that it tortiously interfered with the original situation). That is, a buyout of the coach’s contract with the first team. Often the whole deal is done up front.

    When John Calipari moved to Kentucky in 2009, Kentucky bought out his contract with Memphis for $200,000. USA Today recently had a story on how successful college athletics programs make tidy profits collecting buyout money when their coaching stars switch to other schools: http://usat.ly/Sdu2zD.

    The point is that under these contract arrangements, you don’t see the coach file suit against the first team complaining that being held to the full term of the contract is “indentured servitude in limbo.” (Second page of complaint — note to complaint-writer: it helps to use page-numbering).

    The “indentured servitude” reference seems dicey, as it doesn’t seem like peonage if Loesch in fact signed a contract binding her through October 2013. I better understand the “limbo” part, as apparently it’s alleged she’s not being assigned any duties. But if Breitbart.com’s still paying her, while not assigning her to do anything, what to hard-working Loesch is “limbo” might seem to others a paid vacation.

    I disagree with Adjoran’s comment that the general judicial hostility to “non-compete” clauses is relevant here. As I understand it, Breitbart.com isn’t telling other prospective employers that Loesch can’t compete against it for, say, a year after leaving Breitbart.com. It’s saying it currently has a contract with her through October, 2013.

    Now, as I indicated in my earlier comment, there’s reason to believe that Breitbart.com is legally incorrect in telling this to prospective employers. Crediting Loesch’s complaint, if it leaves nothing important out there’s reason to believe that Loesch has validly ended her contract with Breitbart.com according to its terms, so she’s now a free agent. But as long as Breitbart.com has a good-faith basis to believe it validly triggered a third year on her contract, unlike commentator kryon77, I don’t see what’s wrong with Breitbart.com informing others of that position (from a legal perspective, that is; I’m inclined to agree with you that this is a terrible PR situation for Breitbart.com).

    My bottom line here is that I don’t particularly fault Breitbart.com if it’s using a basketball-coach model for its contracts, so that if some other media organization wants to pick off one of its stars, it has to buy out the contract — as you put it in Update III of your post: “if they can’t have Dana Loesch, nobody can have Dana Loesch.” Such a model may make business sense in the internet media field, as a gig with a high-profile site like Breitbart.com can quickly turn a talented, initially obscure, person into a star, just as a gig on “American Idol” can turn an unknown into a star, an opportunity that carries with it long-term contracts entered into up front.

    But if Breitbart.com is going to continue to press its contract claim rather than just let Loesch go and wish her luck, to avoid brand damage won’t it need to explain, at internet speed, the legal and factual basis for its view that Loesch is contractually bound to it through October 2013? One can quibble with some of the asides added to the complaint, but it tells a pretty simple story that Loesch terminated her contract, fair and square, months ago. Loesch is a justly popular and respected figure. It’s hard to root for an organization not dominated by a single, popular and respected person, especially if the organization doesn’t explicitly and promptly set out a competing narrative.

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  • SunnyJS

    You describe that Brietbart.com had the opportunity to extend her contract by a yr and did not. Did they offer and she refused? Or did they not? If they did not and just went to the “month by month” then Dana has every right to seek more secure employment. And we, have every right to hear from her.
    Andrew didn’t have a jealous bone in his body. He encouraged and loved it when anyone would go into the lions den and take up the cause! Afterall, look how he started at HuffPo and left and started his own concept.
    Since we don’t know all the ins and outs, suffice it to say, this may not be about the letter of contract law, but the spirit of the law…and if there ever was anyone that was all about “spirit” of everything he did…it was Andrew Breitbart. I’d like to suggest both sides to their corners to reconsider the “spirit” they wish to live and be seen living by, and try again for resolution.

  • http://pfoct.blogspot.com/ James Knauer

    This is how cults operate.

  • Joe_Detweiler

    I was wondering about this story yesterday…I should have known to come to the OtherMcCain first. (Busy with holiday stuff.)

  • pococolo

    Good point. Usually, the charismatic leader is surrounded by people who might be very good but who don’t really fit the charismatic leader roll…because generally, there’s only room for one charismatic leader. The loss of that person can make a pretty big hole, often unfillable by the surrounding good but not leader folks. I love Breitbart.com. I love Dana; have missed seeing her work on Breitbart and have wondered why. Don’t understand why they don’t use her or won’t let her go. Makes no sense. If it’s true, it’s very stupid on their part. Freedom is what all conservatives should be about.

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  • http://www.redstateeclectic.typepad.com AngelaTC

    Sure, but the media is much more opinion-entertainment driven than real journalism. Brietbart was the new media genius – no reason to believe that he didn’t view the personalities as marketable on their own right.

  • http://wizbangblog.com/ Adjoran

    Leftist pig.

  • http://twitter.com/richard_mcenroe richard mcenroe

    Phil Foglio, the cartoonist (http://tinyurl.com/yp6owe) had a term for that, “journalistic infotainment-like art product”.

  • http://twitter.com/thejimmyzshow Jimmy Z

    Maybe you need to get Breitbart’s side in this. If there is a contract, then it’s not cuckoo at all.

  • http://boogieforward.us/ K-Bob

    That’s odd. Disqus provides a much better back-and-forth than many other commenting systems (some are as good, but not better). I’m guessing they don’t have it set up correctly at Breitbart.

    The biggest problem with Disqus is that once comments get beyond a few hundred or so, the “click to load more” button shows up, and that kills the thread structure, putting replies to folks in odd places.

    But at least they provide a remedy. If you use your Disqus dashboard, you can see all replies to you, at least.

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  • http://pfoct.blogspot.com/ James Knauer

    Happy Holidays to you, too! Though you can probably only read about “happy” at this point,and for quite a while now.

  • http://profiles.google.com/rob5136 Rob Crawford

    Some of the choices they’ve made of who to publish have been bizarre. One nutjob who tries to describe EVERYTHING according to generations — and often gets the years of events or the ages of people wrong — comes to mind.

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