This week’s ruling in the ongoing Howie Carr saga, despite the current media splash, essentially maintains the status quo in the case. At issue was Carr’s emergency motion for reconsideration of an earlier order — described here — refusing to invalidate the exercise by Carr’s long-time employer — Entercom — of a right of first refusal. The effect of that ruling was to continue Carr’s employment with an employer he wishes to leave and to place him at risk of significant damages if he refuses to return to his job and/or tries to take another job.
In the motion for reconsideration, Carr’s lawyers argued that Judge van Gestel was mistaken in finding that Carr’s employment agreement was extended by virtue of Entercom’s exercise of the right of first refusal. In this week’s decision, Judge van Gestel did not disguise his impatience with Carr’s arguments, especially taking issue with his assertion that the judge misread portions of the agreement at issue. And he repeated the fundamental holding of the previous ruling: that a right of first refusal exercised prior to the termination of an agreement that has the effect of extending the term of the agreement is substantively different than a noncompete. (If it were a noncompete, it would run afoul of a Massachusetts statute prohibiting noncompetes in the broadcasting industry.)
Again, the Court stated that Carr should have to live with the choice he made to negotiate an offer from another radio station and inform his employer of that offer while his existing agreement was still in place. Had Carr waited until the agreement expired, the judge found, he would not be in his current predicament. And, the judge again rejected Carr’s argument that this result subjects him to “lifetime employment” with Entercom.
Carr is indicating that he will pursue an emergency appeal of the decision.