carlson, calladine& peterson llp /| … defendants' trial brief plaintiffs, ) i date: vs- j...

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CARLSON, CALLADINE& PETERSON LLP /|Donald W. Carlson [Bar No.: 792581 dcarlson@ccpla%.a mMonica F. Wiley [Bar No.: 183005] [email protected] —Linda I. Yen [Bar No.: 221743] [email protected] Sacramento Street, 16th FloorSan Francisco, California 941 1 1Telephone: (415) 391-3911; Facsimile: (415) 391-3898

BAttorneys for DefendantENTERCOM SACRAMENTO, LLC andJOHN GEARY

FOLGER LEVIN & KAHN LLPDouelas W. Sullivan [Bar No.: 088136] [email protected] P. Barton [Bar No.: 221549] [email protected]

RLEE/™ORSED 1 'I lfc.B^C^X7 "-""": _

AUG 2 6 2009

C. Lewis , Deputy Clerk

Anne W. Kuykendall [Bar No.: 248720] [email protected] Center West275 Battery Street, 23rd FloorSan Francisco, C A 941 1 1Telephone: (415) 986-2800; Facsimile: (415) 986-2827

Attorneys for Defendants ENTERCOM SACRAMENTO, LLC, «,. . . _ENTERCOM COMMUNICATIONS CORP., and FU6Q "Y ™*JOHN GEARY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

WILLIAM A. STRANGE, individually and as ) CASE NO.: 07AS00377Guardian ad Litem for RYLAND STRANGE ) Consolidated With: Case No. 07AS02328and JORIE STRANGE, minors; RONALD E. ) Complaints Filed: January 25, 2007 andSIMS, as Guardian ad Litem for KEEGAN ) Mav21 2007SIMS, a minor, ) y '

D1 . ,„. I DEFENDANTS' TRIAL BRIEFPlaintiffs, )

I Date:vs- j Time:

ENTERCOM SACRAMENTO, LLC, ) Se:

ENTERCOM COMMUNICATIONS CORP., ) ^6pl"JOHN GEARY, STEVE WEED, ROBIN )PECHOTA, LIZ DIAZ, ADAM COX, )STEVE MANEY, PATRICIA SWEET, )

August 3 1,20099:00 a.m.Lloyd A. Phillips, Jr.

MATT CARTER, and DOES 1 through 40, ) Trial Date. A 1 3 1 2QQ9inclusive, )

. Defendants. )

203249J

DEFENDANTS' TRIAL BRIEFCASENO.:07AS00377

On Point NewsOn Point News

http://www.onpointnews.com


1 TABLE OF CONTENTS

2 TABLE OF AUTHORITIES iii

3 I. INTRODUCTION 1

4 II. PARTIES 1

5 A. The Strange Family 1

6 B. The Entercom Defendants 2

7 HI. STATEMENT OF FACTS 3

8 1. KDND's "Hold Your Wee for a Wii Contest." 3

9 2. Jennifer Strange Died of Hyponatremia After She Drove Home from theStation 3

103. KDND Learned About Jennifer Strange's Death 6 Hours Later 5

5 IV.DISCUSSION 6§ 12| A. Entercom Is Not Liable for Wrongful Death Because Jennifer Strange's Death11 = 13 From A Complicated Medical Condition Was Not Reasonably Foreseeable 6

||I| 14 B. The Failure of Entercom Sacramento's Former Employees to Follow Contest9 gl| Guidelines Is Not Negligence Per Se 83 5 £ 1 << " £u s 1. The Facts Regarding Entercom Sacramento's Contest Guidelines, Policies and| 16 Procedures in Place on January 12,2007 Are Undisputed 8

o 17 2. Under California Law, Entercom Sacramento Employees Disregard of theContest Guidelines Is Not Evidence of Negligence Per Se 9

18C. Any Alleged FCC Violation That May Have Occurred In Connection With The

19 Contest Is, As A Matter Of Law, Irrelevant To Proving Defendants' Negligence 10

20 D. Defendants' Decision To Terminate Employees Involved In The Contest IsInadmissible To Show Negligence 10

21E. John Geary Is Not Liable for Negligence Because He Had No Involvement in the

22 Planning, Approval, or Execution of the Contest and Did Not Learn About theContest Before It Occurred 11

23F. If Any Defendant Is Found Liable, Jennifer Strange Was Comparatively At Fault

24 Because She Knew As Much—If Not More—About the Dangers of DrinkingWater as Any Defendant 12

25V. DAMAGES 14

261. No Recovery for Family Members' Grief or Suffering 14

272. Loss of Financial Support 14

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DEFENDANTS' TRIAL BRIEFCASENo.:07AS00377




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3. Loss of Household Services 15

4. Loss of Love, Comfort and Companionship 15

VI. SPECIAL VERDICT FORM ,16

VII. CONCLUSION 16

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'

1 TABLE OF AUTHORITIES

2 Cases

3 ^/n. Motorcycle Ass 'n v. %>er. Gf. (1978) 20 CaL 3d 578 15

4 Beninativ. Black Rock City LLC (2009) 175 Cal. App. 4th 650 13

5 City of Los Angeles v. Superior Court (1973) 33 Cal. App. 3d 778 10

6 Diamond Springs Lime Co. v. Am. River Constructors (1971) 16 Cal. App. 3d 581 7

7 Gilbert v. Los Angeles (1967) 249 Cal. App. 2d 1006 13

8 Grimshawv. Ford Motor Co. (1981) 119 Cal. App. 3d 757 13

9 Ingham v. Luxor Cab Co. (2001) 93 Cal. App. 4th 1045 6

10 Li v. Yellow Cab Co. (1975)13 Cal.3d 804 15

11 Margaret W. v. KelleyR. (2006) 139 Cal. App. 4th 141 7

12 McCollum v. CBS, Inc. (1988) 202 Cal. App. 3d 989 .". 6

13 McDanielv. Sunset Manor Co. (1990) 220 Cal. App. 3d 1 9

14 McGettiganv.BARTDist. (1997) 57 Cal. App. 4th 1011 7

15 Nelson v.Los Angeles (2003) 113 Cal. App. 4th 783 14

16 Reynolds v. Bement (2005) 36 Cal. 4th 1075 12

17 Robison v. Six Flags Theme Parks, Inc. (1998)64 Cal. 4th 1294 7

18 Tarasqffv. Regents of the Univ. of Cal. (1976) 17 Cal. 3d 425 6

19 Thompson v. County ofAlameda (1980) 27 Cal. 3d 741 7

20 Turner v. Hearst (1*96) 115 Cal. 394 10

21 United States Liability Insurance Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal. 3d 586 12

22 Wawanesa Mut. Ins. Co. v. Matlock (1997) 60 Cal. App. 4th 583 10

23 Webster v. Orr (1917) 174 Cal. 426 10

24 Weirumv. RKOGeneral, Inc. (1975) 15 Cal. 3d40 7

25 Statutes

26 47 CFR § 73.1216 10

27 Cal. Civ. Code § 43.92 6

28 Code of Civ. Proc. §377.61 16

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Evid. Code § 1 151 1 1

Evid. Code §210 : 13

Evid. Code § 669 9

Evidence Code Section 699 9

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I. INTRODUCTION

This case involves the death of Jennifer Strange, a wife and mother of three young

children, who died at age 28 following her participation in a water drinking contest held at a local

Sacramento radio station on January 12, 2007. The contest was run by "The End" (KDND, FM

Radio 107.9), one of six radio stations owned by Entercom Sacramento, and members of the

"Morning Rave" radio show. The contest involved. 18 contestants drinking water at various

intervals. Any contestant who voluntarily dropped out, vomited, or went to the bathroom wass

eliminated from the contest.

No one who was involved in this Contest - from the radio station employees who planned

it to the contestants who participated in it and their family members and friends who were at the

station during the Contest - had any idea that the contest was even remotely dangerous. No one

understood that a person could die from voluntarily drinking too much water. To the extent that

KDND employees or contestants may have been aware of a prior incident of water intoxication,

such as the Chico State hazing incident, they believed that the incident was different from the

contest, involving factors such as forced consumption of water and strenuous physical activity.

II. PARTIES

A. The Strange Family

The plaintiffs are the heirs of the decedent Jennifer Strange, and include her husband,

William Strange (age 30), her sons, Keegan Sims (age 13) and Ryland Strange (age 6), and her

daughter, Jorie Strange (age 3).

William Strange and his children are represented by Roger A. Dreyer, Esq. of the law firm

of Dreyer, Babich, Bucola & Callaham, LLP, in Sacramento and Harvey R. Levine, Esq. of the

law firm of Levine, Steinberg, Miller & Huver in San Diego. Mr. Dreyer represents William

Strange, the decedent's husband and their children, Ryland and Jorie, and Mr. Levine represents

Keegan Sims, Jennifer Strange's son from a previous relationship.

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B. The Entercom Defendants

The Strange Family filed suit against Entercom Sacramento, LLC, Entercom

Communications Corp. (Entercom Sacramento's parent company), and John Geary, the Vice

President and Market Manager of Entercom Sacramento, LLC. Plaintiffs have sued Mr. Geary for

negligence in his individual capacity, asserting that he should have prevented it from taking place.

However, in January 2007, Mr. Geary managed six individual Sacramento stations for Entercom

Communications Corp. and over 130 employees. Given his high-level responsibilities, he

necessarily delegated numerous tasks to other employees, including the planning, approval, and

execution of contests at the individual radio stations. As discussed more fully below, he had no

involvement in the Contest at issue in this case. Instead, Steve Weed, KDND's station manager

and programming director, and Robin Pechota, KDND's promotions director were responsible for

the daily programming and promotions/contests at the KDND station, which included vetting all

but simple call in to win contests through Entercom's corporate legal department.

Members of the Morning Rave radio station also were sued individually in this case. The

three disc jockeys, Steve Maney, Adam "Lukas" Cox, Patricia Sweet and Steve Weed, Robin

Pechota Ray and Peter J. Inzerillo ("Fester") were dismissed from the lawsuit after reaching

settlements with the Strange Family.

Punitive damages are no longer an issue in this case. The Strange Plaintiffs have

dismissed claims for punitive damage against all Defendants including the former employee

defendants,1 and the Davidson Plaintiffs have settled their case. Defendants' Motion In Limine

No. 20 seeks to exclude any reference to conduct or actions allegedly associated with or related to

malicious, despicable or oppressive conduct that would only be relevant to the dismissed punitive

damages claims.

1 Defendant Matt Carter is the only former Entercom employee that has not been dismissed byPlaintiffs. He is also the only employee who has filed a cross-complaint against Defendants—eventhough Defendants had arranged a defense through its carrier and successfully settled the caseagainst Mr. Carter, Mr. Carter insisted on having another law firm represent him. Plaintiffs haverepresented that there are only two sides remaining in this case and that Mr. Carter simply had notsettled yet because of some procedural issues. Defendants' motion to sever Matt Carter's Cross-Complaint is set for hearing on August 31,2009.203249 1 2





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1 III. STATEMENT OF FACTS

2 1. KDND's "Hold Your Wee for a Wii Contest."

3 On January 12, 2007, KDND, a Sacramento-area radio station owned by Defendant

4 Entercom Sacramento, LLC, hosted a contest entitled "Hold Your Wee for a Wii" (the "Contest").

5 The Contest required the 18 contestants to drink water at intervals until they voluntarily dropped

6 out, vomited, or urinated, and the winner of the Contest received a Nintendo Wii video game

7 console.

8 The Contest was held in the break room at KDND's radio station. The contestants started

9 drinking water at approximately 6:20 a.m. and continued until a winner was declared at about

10 9:30 a.m. During the Contest, the contestants (and members of their families who were allowed in

11 the kitchen area to watch the contest) engaged in light-hearted joking concerning the nature of the

12 Contest and each contestant's resolve to win the Wii. The contestants can be heard on the audio

13 broadcast of the Contest loudly cheering as they drank the bottles of water and making fun of

14 those contestants that voluntarily dropped out of the Contest.

15 Jennifer Strange finished second in the Contest by drinking approximately 9. eight ounce

16 bottles and 8 sixteen ounce bottles. She voluntarily dropped out of the Contest a little after

17 9:15 a.m. in the morning in exchange for tickets to the Justin Timber-lake concert. The DJs had

18 offered Ms. Strange the same tickets earlier in the Contest to encourage her to drop out, but she

19 declined them initially and went on to drink two more bottles of water before eventually accepting

20 the tickets. Photographs of Jennifer Strange taken after she dropped out of the Contest show her

21 holding the pair of concert tickets and smiling. Prior to leaving KDND that morning, Jennifer

22 Strange made plans to meet some employees of the radio station at the concert that night, and

23 Patricia Sweet, one of the three main on-air talent, arranged to meet Ms. Strange backstage at the

24 concert.

25 2. Jennifer Strange Died of Hvponatremia After She Drove Home from theStation.

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27 Jennifer Strange left KDND shortly after 9:45 a.m. Upon leaving, she spoke to her

28 husband and two co-workers by telephone and drove approximately 15 miles to her home.

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1 Sometime after arriving home, Jennifer Strange died from complications related to hyponatremia,

2 a complex medical condition that occurs when the body takes in more water than it can excrete,

3 which disrupts the body's sodium balance and its ability to process the excess water. It is

4 undisputed that the hyponatremia was caused by Jennifer's voluntary consumption of water during

5 the Contest.

6 The medical experts who will testify at trial all agree: the overwhehning majority of

7 reported cases of acute hyponatremia involve individuals participating in marathons and patients

8 with severe psychiatric problems who voluntarily drink excessive amounts of water. Dr. George

9 Kayseiu the plaintiffs' expert, testified at his deposition that he is unaware of any deaths that have

10 occurred in a situation similar to the one presented to this court. Moreover, despite 35 years of

11 treating "several hundred" patients with chronic hyponatremia (as opposed to acute

12 hyponatremia), only two have died. Dr. Kaysen has never treated an otherwise emotionally and

13 physically healthy patient for hyponatremia who voluntarily drank excessive amount of water in

14 this manner.

15 Stephany Fiore and Allyson Rogers, employees with the Sacramento County Coroner's

16 Office who performed the investigation into Jennifer Strange's death and her autopsy, will echo

17 Dr. Kaysen's testimony. In fact, Dr. Fiore conducted research and discovered that there have only

18 been 18 reported deaths from acute water intoxication since the late 1970s, 15 of which involved

19 psychotic patients. Defendants' medical expert, Dr. Geoffrey Manley, Chief of Neurotrauma at

20 San Francisco General Hospital, has treated numerous patients with hyponatremia and will opine

21 that hyponatremia caused by water intoxication is extremely rare and not well known. (In fact,

22 many cases of hyponatremia occur in the hospital setting due to intravenous feeding, showing that

23 even the medical community is not fully conversant in hyponatremia.) Dr. Manley will also

24 testify about certain complicating factors unique to Jennifer Strange, for example, her slim build,

25 brain function, idiosyncratic reaction to the amount of water consumed, and increased ADH level

26 (ADH is a hormone that encourages water retention as part of body's flight or fight response) as

27 reasons why she suffered injury and the other contestants did not.

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The evidence presented at trial will show that it was not reasonably foreseeable that

Jennifer Strange or any other contestant could die from voluntarily drinking water.

3. KDND Learned About Jennifer Strange's Death 6 Hours Later.

Between 3:45 and 4:00 p.m. KDND received a telephone call from Kerry Carnes, a co-

worker and supervisor of Jennifer Strange. She advised Theresa Cummings, the KDND

receptionist, that Jennifer Strange had died following her participation in the Contest. She also

told Teresa that she had discussed the Chico State incident with Jennifer (in which a college

student died after being forced to drink water during a fraternity hazing) and warned Jennifer

repeatedly not to participate in the contest because she believed it was dangerous. Ms. Cummings

then relayed this information to Steve Weed, KDND's Station Manager/Program Director.

Steve Weed and Robin Pechota then told John Geary about the phone call and Mr. Geary

directed Mr. Weed to return the call to determine if the call was a "hoax." When Mr. Weed called

Ms. Carnes back, she confirmed that Jennifer had died and again said that she had told

Ms. Strange that water drinking could be dangerous.2

Shortly thereafter, at approximately 4:00 p.m., Mr. Geary received a call from the Rancho

Cordova Police Department. A member of the police department advised Mr. Geary that it

appeared that Jennifer Strange died as a result of her participation in the Contest.

The Sacramento Sheriffs Department conducted a full criminal investigation into Jennifer

Strange's death, which ended with the District Attorney's Office declining to file any criminal

charges because it was an unforeseen event. Defendants' Motion In Limine No. 2 seeks to

preclude the Plaintiffs from introducing evidence at trial regarding any inquires made by

Mr. Geary to radio station staff after the death of Jennifer Strange related to whether the

contestants had executed releases to their participation in the Contest and Motion In Limine No. 10

seeks to exclude the circumstances surrounding the discovery of Jennifer Strange's body in her

home including: (1) the 911 Emergency call made by her mother; (2) the photographs taken by

2 While Ms. Carnes may now disclaim making these warnings, her testimony is directlyimpeached by the sworn testimony of both Ms. Cummings and Mr. Weed.203249 1 5





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Sheriff's deputies and the coroner's office which depict her body in the hallway of her home; and

(3) the Sheriffs Department's investigative report.

IV. DISCUSSION

A. Entercom Is Not Liable for Wrongful Death Because Jennifer Strange'sDeath From A Complicated Medical Condition Was Not ReasonablyForeseeable

The central issue in this case will be whether trie death of Jennifer Strange was foreseeable.

In personal injury cases, the question of whether a plaintiff has established the element of duty is

"determined by an examination of several factors": "the foreseeability of harm to the plaintiff, the

degree of certainty that plaintiff suffered injury, the closeness of the connection between the

defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct,

the policy of preventing future harm,. the extent of the burden to the defendant and the

consequences to the community of imposing a duty to exercise care with resulting liability for

breach, and the availability, cost, and prevalence of insurance for the risk involved." McCollum v.

CBS, Inc. (1988) 202 Cal. App. 3d 989,1004.

Foreseeability has been called "the most important" of the above factors "in establishing

duty..." Tarasoffv. Regents of the Univ. of Cal. (1976) 17 Cal. 3d 425, 434 (superseded on other

grounds by Cal. Civ. Code § 43.92). As BAJI Instruction 3.11 states,

One test that is helpful in determining whether a person wasnegligent is to ask and answer the question whether or not, if aperson of ordinary prudence had been in the same situation andpossessed of the same knowledge, [he] [or] [she] would haveforeseen or anticipated that someone might have been injured by oras a result of [his] [or] [her] action or inaction. If the answer to thatquestion is "yes»" and if the action or inaction reasonably could havebeen avoided, then not to avoid it would be negligence.

Under the facts of this case, the duty of care Entercom owed to Jennifer Strange will be

determined by the reasonable foreseeability of the risk.

California cases distinguish between two kinds of legal duty, the duty to act with

reasonable care, and, where the defendant has placed the plaintiff in peril or has a "special»

relationship" with the plaintiff, an affirmative duty to prevent harm or render assistance. Ingham

v. Luxor Cab Co. (2001) 93 Cal. App. 4th 1045, 1050; McGettigan v. BART Dist. (1997) 57 Cal.

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1 App. 4th 1011, 1017. Both types of duty, however, require that the harm suffered be reasonably

2 foreseeable to the defendant. Margaret W. v. Kelley R. (2006) 139 Cal. App. 4th 141, 153 (for an

3 affirmative duty to be imposed by a special relationship, harm must be foreseeable); Thompson v.

4 County ofAlameda (1980) 27 Cal. 3d 741, 751 (where defendant places plaintiff hi a position of

5 peril, an affirmative duty is imposed only "upon those who create ^foreseeable peril."') (emphasis

6 in original).

7 The "reasonable foreseeability" test is objective, and evidence regarding whether a

8 reasonably prudent person would have researched the consequences of hosting the contest and

9 been able to ascertain the dangerousness of the contest (and the likelihood that hyponatremia

10 would result from acute water intoxication) will be admissible. Significantly, "[tjhe question is

11 not whether a defendant did foresee [the injury] . . . [t]he question is whether it was reasonably

12 foreseeable that injury or damage would likely occur." Diamond Springs Lime Co. v. Am. River

13 Constructors (1971) 16 Cal. App. 3d 581, 598 (internal quotations and citations omitted). More

14 simply, the test is "whether the category of negligent conduct at issue is sufficiently likely to result

15 in the kind of harm experienced that liability may appropriately be imposed on the negligent

16 party." Robison v. Six Flags Theme Parks, Inc. (1998)64 Cal. 4th 1294, 1299. Whether a risk is

17 reasonably foreseeable is a question of fact for the jury, as is clear from the BAJI jury instruction

18 excerpted above. Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40, 46 ("While duty is a

19 question of law, foreseeability is a question of fact for the jury.")

20 Here, the death of Jennifer Strange was not reasonably foreseeable. Not one person

21 involved hi the contest seriously thought that someone could die from voluntarily drinking too

22 much water. In fact, hyponatermia (the complicated medical condition that eventually led to

23 Jennifer Strange's death) is so complicated that - as expert witnesses will testify - even doctors

24 have difficult recognizing the symptoms and effectively treating patients. Further, most cases of

25 hyponatremia are caused by doctors administering fluids post-operatively who do not foresee the

26 danger of doing so. Indeed, one of the contestants who voluntarily entered the Contest and

27 remained on the premises through its conclusion was a trained EMT, and she did not recognize

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either the dangers of the Contest generally or the need for any of the contestants to receive any sort

of medical treatment during the Contest.

B. The Failure of Entercom Sacramento's Former Employees to FollowContest Guidelines Is Not Negligence Per Se

1. The Facts Regarding Entercom Sacramento's Contest Guidelines. Policiesand Procedures in Place on January 12. 2007 Are Undisputed.

In January 2007, Entercom Communications Corp., had in place "General Contest

Guidelines" that, among other things, prohibited contests that were in bad taste or dangerous.

(Exhibit 1.) On August 31, 2006, less than five months before the Contest, Entercom

Communications Corp., Associate General Counsel Cannela Masi, re-circulated the "General

Contest Guidelines" to all program directors and promotions directors at the radio stations via an

email entitled "IMPORTANT REMINDER ABOUT CONTEST RULES." Contrary to plaintiffs'

claims that there was ambiguity in the type of contests that were to be sent to the legal department,

the August 31 email made it clear that any contest other than a simple "caller number 9 wins

tickets" contest was to be sent to the legal department for review. (Exhibit 2.) Further, the email

specifically highlighted contests with an unusual or complicated mode of entry or winning as

requiring legal review. Finally, the email explicitly stated that "when in doubt" about a contest,

one should submit the contest to the legal department.

Then, in October 2006, three months before the Contest, Entercom required that all

program and promotions directors (i.e. Steve Weed and Robin Pechota) participate in a training

session on contest rules. During the training, Carmela Masi conducted a detailed presentation

using PowerPoint slides to emphasize that certain types of contests were prohibited by Entercom:

• Contests which are illegal, dangerous, misleading, rigged orin bad taste;

• Contests that encourage people to act in an unreasonablydangerous manner or place themselves or others in extremedanger (e.g., goes over Niagara Falls in a barrel, first personto successfully run across six lanes of traffic, etc.); and

• Contests that reflect poorly on the morals or ethics of thestation and the Company.

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1 (Exhibit 3.) The training also re-emphasized that while simple contests (such as call in to win)

2 were exempt from legal review, any other unusual, borderline or high-risk contests had to be

3 submitted to the legal department, as well as any complex contest or any contest with an unusual

.4 manner of selecting the winner. (Id.) Finally, in general, Ms. Masi had a practice of requiring

5 medical personnel to be present at any contest that had a physical component.

6 Unfortunately, the Contest was planned and executed by the KDND program director,

7 promotions director, and on-air personalities hi violation of Entercom's established contest

8 guidelines. The Contest was never submitted to the legal department, despite the fact that it was

9 not a simple "call in to win," involved an unusual mode of entry and winning, was in bad taste

10 (involving vomiting and urination), and though unforeseen at the time, was dangerous. Robin

11 Pechota Ray, the KDND promotions director, and Steve Weed, KDND Program Director/Station

12 Manager both received the August 31 email and attended the PowerPoint presentation less than

13 three months prior to the contest. Ms. Pechota's explanation for not having submitted the contest

14 was that she "didn't think anything would go wrong." However, as stated above, Carmela Masi,

15 -the legal department representative for KDND, testified that if the Contest had been submitted to

16 the legal department, it never would have been permitted to proceed as conceived.

I/ 2. Under California Law. Entercom Sacramento Employees Disregard of theContest Guidelines Is Not Evidence of Negligence PerSe.

18

19 Plaintiffs will argue that the failure of the Entercom employees to follow the contest

20 guidelines constitutes negligence, and Defendants anticipate that they will request a negligence

21 perse instruction pursuant to Evidence Code Section 699. However, the failure to follow

22 corporate procedures does not constitute negligence per se, and plaintiffs are not entitled to a

23 presumption of negligence under that theory. Under Section 669(a)(l) of the California Evidence

24 Code, it is a prerequisite to a finding of negligence per se that the Defendant "violated a statute,

25 ordinance or regulation of a public entity." Since no statute ordinance or regulation of a public

26 entity was violated, plaintiffs cannot establish the requisite requirements for an instruction

27 regarding negligence perse. McDaniel v. Sunset Manor Co. (1990) 220 Cal. App. 3d 1, 6

28 (discussing narrow scope of Evid. Code § 669).

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1 C. Any Alleged FCC Violation That May Have Occurred In ConnectionWith The Contest Is, As A Matter Of Law, Irrelevant To Proving

2 Defendants' Negligence

3 Plaintiffs' assertion that any violation of 47 CFR § 73.1216 that may have occurred in

4 connection with the Contest proves Defendants' negligence defies controlling law as well as the

5 FCC's interpretation of its own rules. For a violation of a regulation to constitute evidence of

6 negligence, the harm alleged must be the type of harm that the regulation was designed to prevent.

7 Wawanesa Mut. Ins. Co. v. Matlock (1997) 60 Cal. App. 4th 583, 587. It is undisputed that the

g purpose of Section .73.1216 is to avoid cheating in contests, rigged contests, or changing the rules

9 of a contest ha order to deprive contestants of prizes. While Plaintiffs emphasize that they believe

10 that Defendants violated Section 73.1216 by failing to disclose the Contest rules and changing the

11 Contest rules mid-stream, Plaintiffs have never alleged that Section-73.1216 has anything to do

12 with the personal safety of contestants. Indeed, the FCC has made clear that it does not. Seth A.

13 Neidhart, 22 FCC Red 14042, 14043-44 (Media Bureau 2007). As a matter of law, the alleged

14 violation is irrelevant and inadmissible to prove Defendants' negligence.

15 D. Defendants' Decision To Terminate Employees Involved In TheContest Is Inadmissible To Show Negligence

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17 Plaintiffs' assertion that the fact that Defendants fired the employees who were involved in

18 the unauthorized Contest constitutes an "unequivocal admission of wrongdoing" is wrong on at

19 least two fronts. (PL Tr. Brief 16:7-10.) First long-standing California Supreme Court authority

20 establishes that terminations or other disciplinary action taken against employees are inadmissible

21 to prove an employer's liability. Turner v. Hearst (1896) 115 Cal. 394, 401 (evidence that a

22 reporter who wrote a libelous publication was fired after the publication was inadmissible as proof

23 the employer negligently hired the reporter because the evidence was similar to proof of taking

24 precaution after an accident); Webster v. On (1917) 174 Cal. 426, 427-428, (evidence that a truck

25 driver involved in an accident was fired after the accident inadmissible on grounds that such

26 evidence is "indisputably incompetent and manifestly injurious"); see also City of Los Angeles v.

27 Superior Court (1973) 33 Cal. App. 3d 778, 783, (suspension of police officer resulting from

28 incident at issue neither discoverable nor admissible "in view of settled rule prohibiting the use of

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remedial measures undertaken after an event"); Evid. Code § 1151. Second. Defendants' reasons

for firing the employees were based on their own standards of employee conduct, which are not

the same as the standard for negligence.

E. John Geary Is Not Liable for Negligence Because He Had NoInvolvement in the Planning, Approval, or Execution of the Contestand Did Not Learn About the Contest Before It Occurred

John Geary cannot be held liable for the death of Jennifer Strange, as he had no

involvement in the planning, approval, or execution of contests generally or this Contest

specifically. Mr. Geary is^the Vice President and Market Manager of Entercom Sacramento,

which owns six radio stations in Sacramento. He oversees all six stations in the Sacramento

market, and supervises approximately 8 departments and about 130 employees. Mr. Geary's

responsibilities are numerous and at a high level, with him functioning essentially as a Chief

Operating Officer (COO). Hence, Mr. Geary had to delegate many tasks and responsibilities to

others at Entercom Sacramento, including responsibility for planning, approving and overseeing

contests.

The process by which contests at KDND were conceived and approved did not involve

Mr. Geary. Ms. Pechota Ray and Mr. Weed attended weekly "promotions meetings" with the on-

air talent and with others who reported to them hi the promotions and production departments.

During these meetings, contests that might be held in the future would be discussed. Mr. Geary

did not attend these meetings. Ms. Pechota Ray then had responsibility for drafting rules and

submitting the contests to the Legal Department for review. Contests were not submitted to

Mr. Geary for review. Mr. Geary's responsibilities did not include day-to-day management of

contests or promotions at KDND.

Just as he typically played no role in KDND contests, Mr. Geary played no role in the

planning, approval, or execution of the Hold Your Wee for a Wii contest. Virtually everyone

involved with the Contest (the DJs, the Producer, the Station Manger and the person in charge of

content, the contestants, etc.) has testified in this case. Not a single person testified that they ever

discussed the Contest with John Geary before it occurred; just the opposite, they all testified that

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they did not discuss the Contest with him. Furthermore, there is not a single piece of evidence -

not one memo, not one email — indicating otherwise.

Mr. Geary's only connection to the Contest occurred when, about ten minutes before the

Contest ended, he received a complaint from a salesperson, Micheyl Killer (whose work station

was located near the kitchen), about noise coming from the kitchen where the Contest was being

held. Ms. Killer will testify that it was clear that Mr. Geary was unaware of the nature of the event

in the kitchen. However, in response to the complaint, Mr. Geary stopped by the kitchen for three

to five seconds (as shown in the radio station's security cameras) and told one of the KDND

employees there to keep the noise down before leaving the area. No one was drinking water, and

Mr. Geary did not speak with a single contestant.

In sum, Mr. Geary did not participate in the Contest and therefore bears no liability for

Ms. Strange's death. In California, there is no vicarious personal liability for corporate officers.

Instead, personal liability must be predicated on the actual tortious conduct of the officer himself.

As the California Supreme Court explained in United States Liability Insurance Co. v. Haidinger-

Hayes, Inc. (1970) 1 Cal. 3d 586, 595, "officers of a corporation do not incur personal liability for

torts of the corporation merely by reason of then1 official position, unless they participate in the

wrong or authorize or direct that it be done." Id. (emphasis added); see also Reynolds v. Bement

(2005) 36 Cal. 4th 1075,1090 (liability of officers "stems from their own tortious conduct").

So why has John Geary been sued individually, in particular since Entercom would be

responsible for his actions (even if his actions rose to the level of liability, which they do not)?

The answer is above: Plaintiffs hope to use the presence of Mr. Geary as an individual defendant

to try to justify the presentation of prejudicial and confusing evidence that has nothing to do with

whether Entercom was negligent and nothing to do with the Strange family's damages.

F. If Any Defendant Is Found Liable, Jennifer Strange WasComparatively At Fault Because She Knew As Much—If Not More—About the Dangers of Drinking Water as Any Defendant

It is settled law that where a Defendant is found negligent, a plaintiffs knowing encounter

of a risk of injury constitutes contributory negligence, which, if proven may be the basis for a

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reduction in damages based on the jury's determination of proportion of fault. See, e.g. Beninati v.

Black Rock City LLC (2009) 175 Cal. App. 4th 650, 657-58; BAJI No. 3.50. A plaintiffs

knowledge of a risk is a question for the jury that "may be established by circumstantial evidence

from which the knowledge of the fact in question can be reasonably inferred." Gilbert v. Los

Angeles (1967) 249 Cal. App. 2d 1006, 1010-11; fee also Grimshaw v. Ford Motor Co. (1981)

119 Cal. App, 3d 757, 786-87 (evidence is relevant if it has "any tendency in reason to prove or

disprove any disputed fact" by making the "desired inference more probable than it would be

without the evidence"); Evid. Code § 210.

During the week prior to the contest, Kerry Games (Ms. Strange's coworker at

Radiological Associates) warned Ms. Strange repeatedly not to participate in the contest because it

was dangerous. Ms. Carnes may now claim she did not warn Jennifer about water drinking, but if

so, the testimony of KDND's receptionist and KDND's Station Manager/Program Director

directly impeaches her. Teresa Cummings (the receptionist at Entercom Sacramento) will testify

that she received a call from Ms. Games, in which Ms. Carnes said that prior to the contest she

"had warned [Ms. Strange] repeatedly" about the dangers of drinking water. (Cummings Depo.,

90:19-91:4; Handwritten Note showing that Ms. Cummings received a call from Ms. Carnes.) A

contemporaneous memorandum reflects that "[Ms. Strange's] supervisor called the station and

told [Teresa Cummings] she had informed her co-worker Jennifer about the Chico incident3 and

told her not to do it." Mr. Weed, KDND's station manager/program director, later returned the

coworker's call. The coworker again relayed that, prior to the Contest, "she had warned Jennifer a

couple of times over the course of that week about the dangers of drinking too much water."

Despite having been repeatedly warned about the risks of drinking too much water, Ms. Strange

conducted a "practice run" the day before the Contest to see how much water she could drink and

hold.

Then, shortly after arriving at the radio station the morning of the Contest, Ms. Strange

was presented with a written release, the title of which referred in bold text and large font to

3 The "Chico incident" refers to an incident at Chico State in 2005 after which a college studentdied as a result of being forced to drink a large volume of water.203249_1 13





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1 "Personal Injury." (Exhibit 4.) The reference to "personal injury" echoed the warnings that she

2 had already received about the Contest, yet she voluntarily chose to participate in the Contest

3 anyway.

4 That morning, the KDND employees also explained the Contest rules to Ms. Strange and

5 the other contestants, which made clear that one of the risks of participating in the contest was

6 vomiting or urinating.

7 After Ms. Strange signed the release, heard the Contest rules, and began the Contest,

8 Meredith Shanks, another contestant, testified that the broadcast of the Contest was playing in the

9 kitchen where the Contest took place, and that the contestants could clearly hear a caller warn that

10 water drinking was dangerous and possibly deadly. The Chico State incident (in which a college

11 student died following drinking too much water) and related dangers of water drinking- were

12 openly discussed by the contestants during the Contest. Ms. Shanks testified that she and Jennifer

13 "were sitting next to each other" and that they were both "nodding and kind of listening to what

14 everyone else was saying." None of these facts deterred Ms. Strange from continuing. In fact,

15 Ms. Strange elected to stay in the Contest even after she, like other contestants present, saw

16 several other contestants get sick and drop out. Ms. Strange also chose to stay in the Contest,

17 despite encouragement from radio station employees to drop out in exchange for tickets to a music

18 concert.

19 The facts show that Ms. Strange knew at least as much as the Defendants, if not more,

20 about the dangers of drinking water. As such, should the jury find Defendants liable, a key issue

21 in this case will be the role that Ms. Strange voluntarily played in her own tragic death.

22 V. DAMAGES

23 1. No Recovery for Family Members* Grief or Suffering.

24 Under California law, Plaintiffs may not recover for the grief or suffering they experienced

25 as a result of the death. Nelson v. Los Angeles (2003) 113 Cal. App. 4th 783, 793.

26 2. Loss of Financial Support.

27 Plaintiffs may recover the present value of future financial contributions that the decedent

28 would have made to the family. Because Jennifer Strange was 28 at the time of her death and had

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a high school education, her list expected work life was approximately 26.1 years. At the time of

her death, Ms. Strange's hourly wage was $20.88. Expert testimony will be presented at trial to

determined these damages, reduced to present value, and offset by personal consumption.

3. Loss of Household Services.

Activities that Jennifer Strange would have performed, such as-housekeeping, shopping,

cooking, and caring for her children, which would have saved the Plaintiffs the necessity of doing

hem or hiring a third party to do them, are also compensable losses. Expert testimony will be

presented to determine the amount of these damages reduced to present value.

4. Loss of Love. Comfort and Companionship.

In addition to funeral and burial expenses4 and the loss of financial support and household

services, Plaintiffs may be entitled to non-economic damages. Non-economic damages for

wrongful death include the loss of Jennifer Strange's (1) love, companionship, comfort, care,

assistance, protection, affection, society, and moral support; and (2) training and guidance.

William Strange is also entitled to recover for the loss of enjoyment of sexual relations. These

wrongful death damages cannot include compensation for Jennifer Strange's pain and suffering or

for the Strange Family's grief, sorrow, or mental anguish at the loss of their mother.

Furthermore, as discussed in detail in section IV(E), above, total recoverable wrongful

death damages are subject to reduction to the extent that decedent's own negligence contributed to

her injuries. Li v. Yellow Cab Co. (1975)13 Cal.3d 804; Am. Motorcycle Ass'n v. Super. Ct.

(1978) 20 Cal. 3d 578, 598. Evidence presented at trial will demonstrate that Jennifer Strange

knew at least as much—if not more—about the dangers of drinking too much water as any of the

Defendants did.

4 After Jennifer Strange's death, Defendants gave the Strange family $100,000 and requested thatthe family reach out to the Company if it required additional funds for their immediate financialissues. Defendants do not plan on introducing evidence of this gift unless Plaintiff opens the doorby attacking the Entercom entities with accusations of callousness, indifference, or corporategreed. (Defendants' Opposition to Plaintiffs' Motion In Limine No. 15)203249J 15





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VI. SPECIAL VERDICT FORM

Defendants anticipate that Plaintiffs will request a special verdict form that itemizes their

individual damages. Defendants will oppose this request. Pursuant to its statutory duty, the Court

"should determine the respective rights in an award of the persons entitled to assert the cause of

action" for wrongful death. Code of Civ. Proc. §377.61. There are four plaintiffs in this case,

including the three minor children of Jennifer Strange. Under the wrongful death statute and

California case law, the jury should be instructed to return a single, unallocated lump-sum verdict

representing the total of the awards for each beneficiary as directed by Section 377. The Court

should then determine the final apportionment of the award between the plaintiffs. (See, BAJI

14.51 and CACI3921 which both require single amount for all plaintiffs to be apportioned among

the plaintiffs after trial.)

vn. CONCLUSIONThe evidence presented at trial will demonstrate that Jennifer Strange's death was not

foreseeable by anyone involved in the "Hold Your Wee for a Wii Contest." No one understood

the ramifications of a person voluntarily drinking an excessive amount of water and developing

hyponatremia. If the jury finds that the Entercom entities were negligent and awards the Strange

family damages, those damages will be reduced by Jennifer Strange's comparative negligence.

DATED: August 26,2009 CARLSON, CALLADINE & PETERSON LLP

By_DCfNALD W. CARLSONMONICA F.WILEYLINDA YENAttorneys for DefendantENTERCOM SACRAMENTO, LLCand JOHN GEARY

7

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2

I, the undersigned, declare that I am employed in the County of San Francisco, State of

(Code of Civil Procedure §§ 1013(e) & 2015.5, California Rules of Court, Rule 2008)

3 "

[email protected]: [email protected]: [email protected]

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PROOF OF SERVICE

California. I am over the age of eighteen years and not a party to the within action; my businessaddress is CARLSON, CALLADINE & PETERSON LLP, 353 Sacramento Street, 16th Floor, SanFrancisco, California 94111.

On August 26,2009,1 served the attached:

• DEFENDANTS' TRIAL BRIEF

on the party(ies) listed on the ATTACHED SERVICE LIST as follows:

BY Electronic Mail [E-Mail]: [email protected]: [email protected]: [email protected]:

I declare under penalty of perjury under the laws of the State of California that theforegoing is true and correct and that this declaration was executedjit San Francisco, California,on August 26,2009.

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PROOF OF SERVICECASENO.:07AS00377




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SERVICE LISTStrange v. Entercom Sacramento, LLC, et al.

Superior Court of Sacramento County - Case No. 07AS00377

Roger A. Dreyer, Esq.Robert B. Bale, Esq.Dreyer, Babich, Buccola and Callaham20 Bicentennial CircleSacramento, California 95826Telephone: (916) 379-3500Facsimile: (916) 379-3599Attorneys for Plaintiffs

Harvey R. Levine, Esq.Levine, Steinberg, Miller & Huver550 West C Street, Suite 1810San Diego, CA 92101Telephone: (619)231-9449Facsimile: (619)231-8638Associate Counsel for PlaintiffKeegan Sims, by and through his Guardianad Litem, Ronald E. Sims

Gerald Glazer, Esq.660 J StreetSacramento, California 95814Telephone: (916)442-3111Facsimile: (916)442-6524Attorneys for Matt Carter

Steven Schultz, Esq.Demas & Rosenthal701 Howe Avenue, Suite A-lSacramento, California 95825Telephone: (916) 442-9000Facsimile: (916)441-6444Co-Counsel for Matt Carter

Douglas W. Sullivan, Esq.Folger Levin & Kahn LLP275 Battery Street, 23rd FloorSan Francisco, CA 94111Telephone: (415) 986-2800Facsimile: (415)986-2827Attorneys for Entercom Communications,Entercom Sacramento and John Geary

PROOF OF SERVICECASENo.:07AS00377




EXHIBIT 1




ENTERCOM COMMUNICATIONS CORP.

GENERAL CONTEST GUIDELINES

I. FCC DISCLOSURE REQUIREMENTS

The FCC requires that a station that broadcasts a station sponsored contest on-the-air must fullyand accurately disclose the "material terms" of the contest on-air. No contest description may befalse, misleading or deceptive with respect to any "material term." The FCC also requires that theStation then conduct the contest in accordance with the rules that have been broadcast on-air.

NOTE: This means that if the Station's written rules differ in any material way from the rules thatare actually read on-air, the on-air rules control for FCC purposes. If a contest is promoted and/or

• broadcast on-air, it is NOT sufficient to merely make written rules available to the public. For •any station sponsored contest that is promoted on the air,-the FCC requires that all materialterms (essentially complete contest rules) be read op-air. Contest rules should be aired oncea day, seven days a week, in rotating day parts. Posting the rules on the Station's website,while it should be done, does not satisfy the FCC on-air requirement.

The rule of thumb regarding when contest-specific rules are required is that you produce apromo specifically to promote a particular contest, you need to draft, post and air contestrutes specific to that contest. The Station's generic contest rules will not suffice.

II. MATERIAL TERMS

As noted above, the material terms of the contest must be disclosed on-air.

Material terms Include:

(a) how to enter the contest;(b) where to'enter the contest;(c) eligibility restrictions (e.g., who can enter; who cannot enter and win);(d) no purchase is necessary to enter or win; •(c) the dates the contest begins and ends;(f) the date that entries must be received by;(g) a description of the prize(s);(h) the value of the prizes) (e.£.,MSRP, Retail Price, etc.); .(i) the number ofprize(s) to be given away;(j) when and how prize(s) can and will be won;(k) time, date, and means of selection of winner(s); and(1) tie-breaking procedures.

III. CONTEST LIMITATIONS

EC0000653




Contests which are illegal, dangerous, misleading, rigged or hi bad taste must be avoided:Examples of such unacceptable contests would be any contest that: (a) encourages someone tobreak the law (e.g^ stealing, breaking and entering, trespassing, exposing themselves in' public,etc.); (b) encourages people to act in an unreasonably dangerous manner or place themselves or..others in extreme danger (e.g., offering a prize to the first person who successfully goes overNiagara Falls in a barrel) (c) misrepresents the terms of the contest or overstates the amount thatcan be won; (d) broadcasts contest information where the outcome of the contest has beenpredetermined; or (e) would reflect poorly on the morals or ethics of the stations and thecompany.

NOTE; Contests that require anyone entering to either make a purchase or contributesomething of value in order to enter should be avoided. Such contests, are generally deemedto be. lotteries and are NOT legal in most states, If there are any questions as to whether aparticular contest is an illegal lottery, you should consult with the Legal Department.

IV. MEANS OF DISCLOSURE

The material terms of the contest must be disclosed both in writing and by on-air announcements.It is also recommended that contest rules be available for pick up from the Station and that therules be posted on the Station's website

A. WRITTEN CONTEST RULES

Contest terms and conditions must be disclosed in written contest rules. Written contest rulesshould be made available at the Station to all members of the public. The hours that contest rulesmay be picked up at the Station, along with the Station's street address,'should also be included.(See attached sample of General Rules.) Written rules should also be posted on (he Stationwebsite where available.

B. ON-AIR ANNOUNCEMENT OF CONTEST RULES

The obligation to broadcast the material terms of a contest on-air arises once the contest ispromoted on-air and/or potential contestants are asked to participate on-air in the contest. Astation must broadcast the material terms of a contest (including instructions as to how one canobtain a complete set of the written rales) at least once each day while the contest is beingpromoted or conducted. The Station should adopt a strategy in which the full contest rules arebroadcast once a day, seven days a week in rotating day parts to ensure that the morning,

- afternoon and evening audiences all become familiar with the rules.

For simple call-in contests, of which the Station may be running several at one lime, it issufficient to air a promotion or announcement explaining the prize and how to win and thensimply add at the end of the promotion or announcement that: "The Station's General Contest

EC0000654




Rides apply."' The Station should air its 'general contest rules at least once a day in varying dayparts.

For more complex contests or contests/promotions that deviate in any significant way fromthe general contest rules, the Station should air the full contest rules (in an abbreviatedform) once * day in addition to the Station's airing of its general contest rules.

C. OTHER PROMOTION

If a station promotes a contest other than on its own on-air (e.g., print) the material terms of thecontest must also be included in such advertising.

NOTE: For contests that are not promoted or conducted on-air, the Station is not required tobroadcast the contest rules on-air. For example, if a contest is exclusively conducted through theStation's website and the contest is not promoted on-air, then the Station is not required to

• broadcast on-air the contest rules. Written contest rules, however, should always be drafted andshould be made available to the public at the Station and on the website.

D. SALES PROMOTIONS/CONTEST . .

There often appears to be a misconception that contests conducted by the sales department fortheir clients are not subject to these guidelines. THAT IS NOT THE CASE. If a station isinvolved in administering'the contest (drawing winntrs, collecting entries, promoting the contest,etc...), all of these Guidelines apply- The only exception is that if we .have NO involvement incontest administration whatsoever (other than providing prizes) and the contest is promotedONLY in paid commercial advertising, then we are not required to comply with the policiesoutlined in these Guidelines.

V. PRIZE LIMITATIONS

Prizes which are illegal or which can be unusually hazardous or dangerous should not be awarded.For example, free sky-diving lessons or similar unusually hazardous prizes should be avoided.

Any prize that a sponsor has agreed to provide and/or give to the Station should be confirmed bythe Station in writing. Have the sponsor counter-sign a confirmation letter indicating theiragreement to provide and/or give the prize to the Station. In the confirmation letter, it isimportant to describe the prize in as much detail as possible so that there is no dispute as to whatthe sponsor promised to provide versus what the sponsor later delivers. (It is important to confirmin writing that the sponsor has agreed to provide the prize because if the sponsor fails to do so, theStation must purchase the prize to give away and then try to enforce its contractual right againstthe sponsor based upon the written confirmation letter.) Also, the letter should provide for who.pays any taxes relating to the award of any prize and who is responsible for IRS 1099 notification,to winner.

EC0000655




VI. PRIZE WINNER RELEASES

Each contest winner of. a prize-worth over 525.00 must sign a release form. (See attachedsample.) The Winner's Release gives the parties the right to use the contest winner's voice, name,likeness, and biographical information for advertising and promotional purposes. It also releasesthe Station from liability in connection with, the winner's receipt and use of the prize(s).Additionally, a social security number must be provided to the Station or the winner may notcollect the prize.

Please note" that if the contest winner is a minor (under 18 years of age), then the release mastalso be signed by the minor's parent or guardian. ' •

VII. STATION CONTEST FILES

Stations must maintain a file for each contest that contains all the following materials: (a) the contestrules (including a print-out from the website); (b) the signed contest winner's release; (c) any letters ofcomplaint; (d) copies of all material that has been broadcast with respect to the contest; (e) all

- advertising, promotion and publicity material; and (0 a record specifying the days and times that contestrules were broadcast.

III. FCC TAPING/RECORDING REQUIREMENTS

A. When a listener calls the station on a hotline or call-in line

When a listener calls the Station on a hot-line or on a call-in line to win a contest, answer a question, etc.,it is presumed that the listener is aware that (a) the call is being taped or that it is very likely that the callis being recorded and (b) it may be broadcast on-air. Therefore, the Station does not need to give listenerscalling into the Station any notice that the call may be taped or broadcast. Stations should periodicallyannounce that callers to the call-in telephone number may be put on the air.

B. When the Station calls a listener or any member of the public

When the Station calls a listener or any member of the public to broadcast or record the telephone call(even in response to a contest entry sent into the Station by the listener), the FCC requires that the Stationgive the person being called "notice" that the telephone call will be broadcast or recorded for broadcast.The person calling from the Station should first identify that he/she is calling from a radio, station and theninform the person that the phone call will be recorded for broadcast. It is at this point - after giving noticethat the call will be recorded- that the Station may begin recording the call. The Station may NOT

. record prior to this point Once the Station begins recording, the Station should simply repeat and confirmthat the person being called has been given notice that the caller is from a radio station and that the call isbeing recorded. The Station may NOT record "blind" calls in which the recipient's consent to

(0

EC0000656




record or tape the telephone call is later obtained. This does not comply with the FCC's rules! '"Afler-the-fact" consent or notice is NOT sufliciejit .

Use of a delay mechanism is not sufficient to avoid violating FCC rule, unless (a) the caller is told inexplicit language during the delay interval that this is a radio station calling and unless they hang up now,

.' theywill be broadcast on the air and (b) then allow sufficient Time for the person to hang up. Less explicitmessages have resulted in fines by the FCC.

Additionally, the FCC requires that you also give notice before recording and broadcastinganyone's answering machine message, hi reality, this means that the Station .cannot record or broadcastan answering machine message until after a person at that number actually answers the phone so that'he/she can be put on notice of recording. (It is not sufficient for (he Station to merely leave a message onthe answering machine" that the message is or was recorded.)

At some point during the telephone call, the Station should obtain consent from the person who was calledto broadcast the recording of the telephone call on-air. -If the person being called refuses to consent orexpressly states that they do not want the call broadcast on air, it is Enlercom's policy NOT to air the call.Although the FCC does not require "consent" to air the call — it is company policy to obtain this consent,unless extraordinary circumstances exist and PRIOR management approval is obtained.

IX. SAMPLE CONTEST RULES

Attached for your reference and use are samples of the following:

A. Generaj Contest Rules

-B. * Template for Specific Contest Rules (including attachments with sample drop-in language for"How to Enter", "How to Win" and "Prizes" sections.

C. Rules for Call-in Contests

C. Winner's Release

EC0000657




1̂h

EXHIBIT 2




From:^ent:./To:

tubject:

ittachments:

. Carmela Mas! [[email protected]]Thursday. August 31.200& 12:20 PMJim Rising; Joseph Level; Brad Carson; Michael Ignatz; Tias Schuster; Andrews Karris;Chase Murphy; Lizarm Hunt; Amy Caplan; Andrea CappeUetti; Alicia Cleese; AUan Davis;Amy Dillon; Andrea Glinski; Amy Griesheimer-Mandeau; Andy Holt; Alan Ktrshbom; AnneLeadford; Ann Marie Mulholland; Adam Ralston; Andre RRey, Andy Roth; Arthur Vdpe; BillAlfarto; Beth Anthony; Bob. Boyd; Bruce Cherry; Brian Douglas; Bob Edwards; Brad Homing;Brian Johnston; Brian Kelly; Ben Kulis; Brian Lee; Bobby Martinez; Barry McKay; Brent Millar;Butch Mitchell; Drop Box - GM List; Bill Pasha; Beau Raines; Barry Smith; Cathy Cahgiano;Curtiss Johnson; Claire Jordan; Chris Moline; Charisie Moore; Carlson Mozdiez; ChristinaNeenan: Clark Ryan' Cindy Schtoss; Cory Van Pelt; Charlie Weiss; Chris Wilson; DarieneAdams; John Compton; Dustin Boehm; Danielle D'AcontI; Dave Dexter; Dave DiDon; Debra

• Jones; Dennis Glasgow; Dick O'Neil; David Uchtman; Don London; Dick Loughney; DarryiMiner: Diane Newman; Dan Oshea; Dana Panepintb; Divina Meyer; DanyeDe Pertten DanPersigehl; Delia Pizzati; Dan Prendiville; Dave Pridemore; Donald St. Sauveun DaveSymonds; Don Tomasulo; Deanria Wukovits; Doug Zanger; Erin Casey; Erin Hubert Ethan

. Kelly; Fred Hormelt; Fletcher Keyes; Greg Carpenter; Greg Ried; Greg Spencer GillianTrimbofi; Greg Williams; Hope Angetone; Helen Cenlanni; Hank Dple; Heather Rainey; IrisKarasick; Janna Harrington; Jeff Brown; John Burkavage; John Capuano; JC Kirwan; JimmyClarke; Judy Combs: Jerry Dean; Joe DeAngetis; Jim Donohue; Jerry McKenna; JessicaFarias; James Fitzgerald; Jamie Foehner, Jim For. John Geary; Jane Graber JackieGuenlher; Jeffrey Havis; John Henis; Jim Scott; Jack Hutchison; Jeff Jeanpferre; JJ Morgan;Julie Kahn; John Karpinski; Joby Koren; Jill Kowalski; Jerome La Chance; Jeff White; Jeff.McHugh; Jim Morales; Jennifer Morton; John Nelson; Joe Nicholson; Jack Oliver; JamieOlsen; Jim Robinson; Jim Rushton; Jeff Silver; Jon Spinder; Joey Stokes; Jennifer Wisbey. •Jackie Wise; Ken Beck; Kevin Klein; Kyle Dachsel; Kati Daniels; Kevin Johnson; kelli Gowan;Kevin Scales; Karin Shipley; Kelly Sulton-Hargraves; Kent Van Amam; Keevin Wagner;Kristin Kelleher-Wong; Lazfo; Lisa Crider; Lindi Glasgow; Lee Hansen; Liz Kay; Lisa Mettlen;Lisa Powell: Larry Robb; Linda Smith; Mike Bongtoyannl; Mark Boudreaux; Michael Bryan;Marcy CaldweH; Melissa Capuano; Michelle Cody; Megan Cole; Mike Donovan; MichaelDoyle; Melissa Forrest; Michael G. Davis; Mark Hamilton: Mark Hamlin; Mark Hendrix;Michelle Green; Mike Johnson; Mark Jorgensen; Mike Kaplan; Michael Keck; Mark Leopold;Michael McKeel; Marijane Milton; Mike Moore; Mike Morgan; Mike Nelson; Malcolm Pdham;Maureen Pulicella; Mike Rockwell; Mark Yearout; Natalie DiPtetro; Neil Larrimore; PaulCooper; Pat Gallagher; Pat Galloway; Phil Hoover; Paul Meade; Patrick Neas; Pat Paxton;RandaN Bliss; Rick Crandall; Rich Deutsch; Ryan Flynn; Roxanne Marati; Robin Pechota;Ray Quinn; Ron Raybourne; Ray Schey; Ron Steinman; She! Bailey; Sharon Day; SeanOven Steve Forsyth; Steve Fortunate; Steve Hartley: Sam Hicks; Steve Jonsen; ScottMaenner, Scott Mahalick; Sara McClure; Sue Munn; Sue O'Neil; Stefanie Porotniczak; SaraReifschneider; Scott Rogers;'Stefan Rosenberg: Shannon Rovak; Steve Sandman; ScottSands; Skip Schmidt; Stephanie Starr; Scott Tom; Steve Weed; Tom Clendening; TerriCouch; Tami Davenport; Tony Duesing; Traci Gregory; Tim Holly; T J Hart; Thorn McGinty:Toni Williams; Tim.Thompson; Tom Watson; Tim Wenger;- Vince Tortorich; Wendy Duhon;Wes Malejka; Wayne ParteDo; Wayne Walker; Doc Medek; Tony Bartocci; Dave Richards;Jennifer Orr. Shawn Stewart; Greg Bergen; Billy Kidd; Joe Harrington; Jason Wolfe: NancyKman; Shilynne ColeAnna Kordan; Andrew Sutor; Jack Dpnlevie; Michael Dash; Mike MilsomIMPORTANT REMINDER ABOUT CONTEST RULES

EntercomConlestGuidelines 7-05.pdf

iterojmContesHSu

This is a reminder that under FCC rules, all listener contestsincluding sales-contests) require official contest rules and -on-air rulesfior to the start of any promotion of that contest. Entercom's contest

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guidelines are attached below for your reference..

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With the exception of simple contests, contest rules must b'e submitted forview by your Enter com 'Legal representative. This is especially 'true forj unusual or complicated mode of entry, winning or any large

prize (valued at more than $10,000). A simple contest is one in whichthe form of rules 'have been .approved before by Entercom Legal, that fallunder the Station's generic contest rules (used only for simple one-offcall-in, on-site or on-line simple random selection contests. • .9th callerfor a stereo. system or concert tickets, entry to win CD at a station event,on-line entry to randomly select one -winner of a TV, etc.'..) and that doriot include any unusual mode of entry/winning or large prize. When indoubt as to whether a giveaway fits into your generic contest rules, checkwith your Entercom Legal representative.

Contest rules should be submitted to Entercom Legal 1-2 weeks before youstart "promoting the contest. PLEASE NOTE THAT CONTEST RULES FOR CONTESTSTO BE CONDUCTED IN NEW YORK STATE MUST BE SUBMITTED 6 WEEKS IN ADVANCE FORANY CONTEST IN WHICH THE AGGREGATE VALUE OF ALL PRIZE COMBINED IS $5,000 ORMORE (in order to get the bond and file 30 days in advance with the stateas- -required) AND CONTESTS IN RHODE ISLAND THAT INVOLVE RETAILERS MUST BESUBMITTED AT LEAST 3 WEEK IN ADVANCE (in order •to file with the state) . Failure to do so could result in a mandatorydelay in the start of your contest.

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To 'facilitate prompt review of rules by Entercom Legal, you must make surethat the rules are in the proper form and are complete before submitting

•>m for review. Otherwise, you will lose time by having to;aft and resubmit them to us. We have hundreds of approved contest

rules on-air and can always provide you with a "starting point" byproviding "approved rules from .a similar contest conducted by another market— just email your Legal Representative with a.request for sample rules byexplaining how people enter, how they, win and what the prize will be.

Requests" made to the Entercom Legal Department to review last-minutecontest rules may be escalated to..the Market Manager and sometimes theRegional Vice President. IN NO EVENT SHOULD ANY CONTEST BE PROMOTED ON-AIRUNTIL THE CONTEST RULES ARE APPROVED BY LEGAL, POSTED ON-LINE, AVAILABLE ATYOUR FRONT DESK, AND YOUR ON-AIR RULES ARE RUNNING AT LEAST IX PER DAY PERCONTEST. Failure to do.so could result in significant FCC fines and legalfees that will be charged against your station's PSL- easily at least $20,000 and sometimes as high as $50,000. All ittakes is one on-line complaint to the FCC about your contest and EVERYTHINGyou have done wrong in connection with that contest could be subject to afine by the FCC, For example, a listener complains that they think they -should have won a prize and even if the Station is right, you will be finedfor failing to have proper rules disclosures and/or failing to run on-airrules. .

Let us know if you have any questions. Thanks.

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Carmela Masi.Associate CounselEntercom20 Guest StreetBoston, Massachusetts 02135Phdne: 617-7T9-3508.Fax: 617-779-5449Email; [email protected]

This email may contain material that is confidential, privileged and/orattorney work product for the sole use of the intended recipient-. Anyreview> reliance or distribution by others or forwarding without expresspermission is strictly prohibited.. If you are" not the intended recipient,please contact the sender and delete all copies.

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EXHIBITS




III. CONTEST LIMITATIONS

Contests which are illegal, dangerous,misleading, rigged or in bad taste must beavoided.

Examples of UNACCEPTABLE contests:

(a) Contests that encourage someone tobreak the law (e.g., stealing, breaking andentering, trespassing, exposing themselvesor having sex! in public, etc.);

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(b) Contests that encourage people to act in anunreasonably dangerous manner or placethemselves or others in extreme danger (e<g.,offering a prize to the first person who survivesgoes over Niagara Falls in a barrel, first personto successfully run across six lanes of traffic,etc.);

(c) Contests that misrepresents the terms of thecontest or overstate the amount that can bewon;

(d) Contests where the outcome has beenpredetermined; or

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(e) Contests that reflect poorly on the morals orethics of the station and the Company.

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EXHIBIT 4




Entercom Sacramento ' . 5345 Madison AvenueSacramefltot CA 95841

Td: 916334.7777Fax: 916339.4292

Release For All Claims Including Personal Injury .

In consideration of goods and valuable consideration received and to be received, I,my heirs, assignees, legal representatives, or any other party having the capacity torepresent me, do hereby release entercom Inc. KDND, KRXQ, KSEG, KCTC, KSS3,KWOD, It's subsidiaries, franchises, agents, officers, directors, employees, and altother parties In interest from all daims, demands, grievances, and causes of actioneither legal or.equitable, including but riot limited to, ail damages of any kindincurred by myself or by others to me for the duration outlined herein and that I amunable to amend the aforementioned arrangements, in part or In full.

Prize;.

I have read and understand this agreement.

^*

Name: ,

Address: 3WI

City: Me _ State: .flfr _ Zip:

Date of Birth;

Plrone # Work:

Effective this date{s):

Or Signature of authorized agent/legal guardian:




carlson, calladine& peterson llp /| … defendants' trial brief plaintiffs, ) i date: vs- j...

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