Bubba Makes Wild Conspiracy Charge in Nielsen Counterclaim.
Attorneys for Bubba “The Love Sponge” Clem on Monday asked a Florida court to grant them a leave to file a sensational counterclaim against Nielsen in the measurement giant’s $1 million ratings tampering suit against the syndicated host. Among the accusations: The suggestion that Nielsen conducted a “sting operation” against the morning man.
Clem’s lawyers are claiming that Nielsen and Cox Media Group were in cahoots on a conspiracy to prevent Clem from broadcasting on Beasley’s WBRN Tampa, in competition with CMG’s own “102.5 The Bone” WHPT. Also that Nielsen manipulated the Tampa ratings to the benefit of WHPT and the detriment of WBRN.
The startling allegations come in a Motion for Leave to File Counterclaim and Third Party Complaint filed by Clem’s legal team in U.S. District Court in Tampa.
The wild accusations also implicate WHPT morning man Michael Calta, a former member of Bubba’s morning show.
WBRN was beating WHPT in the ratings from Mar. 2015-Jun. 2015, right around the same time Nielsen and Cox entered into the alleged conspiracy to remove Clem from the Tampa airwaves, thus removing a competitor to Calta, according to the counterclaim. Calta replaced Clem in mornings on WHPT in Aug. 2014. Clem started at WBRN in Jan 2015.
The counterclaim references a live telephone call between Bubba and Calta that aired on both stations on April 22, 2015 where Calta “falsely claimed that WBRN’s ratings were improving because Clem was tampering with the ratings.” During the call, Calta said Clem had control over PPMs, including some that were on watch winders, and that Clem bought a PPM from his dentist’s nurse. After Clem left WHPT, he stopped using the meters to benefit WHPT, causing its ratings to drop, the filing says. It also alleges that Cox “encouraged Calta’s on-air defamatory statements” about Clem by archiving and promoting a tape of the conversation on WHPT’s website and social media outlets. The filing includes numerous redacted portions, which appear to detail how Nielsen responded to the allegations in the call.
Cox used its position as a large Nielsen subscriber to “influence Nielsen into agreeing to participate in the conspiracy,” the counterclaim says. As for Cox’s motivation, WHPT was unable to achieve the same ratings it had with Bubba in mornings and needed to justify not renewing Clem’s contract and replacing him with Calta, it claims. Nielsen participated, per the counterclaim, to appease Cox and to encourage Cox to enter new contracts “to purchase expensive products and services” from Nielsen and to “conceal the fraudulent conduct of Nielsen’s employees” with respect to the data used in Nielsen’s ratings.
The outrageous allegations accuse Nielsen and Cox of conducting a sting operation from May-Aug. 2015 “designed to entrap Clem into engaging in ratings distortion activity.” This alleged operation involved Nielsen adding a Tampa PPM panelist who would approach Clem and his staff while wearing a ratings meter, trying to entice them into engaging in ratings distortion activities. The rest of the story is well known—Nielsen took the rare action of delisting WBRN from the Sept and Oct. 2015 ratings, which Clem calls “further evidence of Nielsen’s conspiracy with Cox,” since Nielsen had already removed the PPM panelists from its sample that Clem’s activities had allegedly compromised. Nielsen sued Clem in Oct. 2015 for ratings tampering, which Clem’s legal team says was “in furtherance of its conspiracy” with Cox to eliminate Clem as competition to WHPT and to punish Beasley for not ending its contract with Clem. The redacted portions of the filing apparently detail further sanctions against Beasley taken by Nielsen to pressure it to cut ties with Clem, which it did in Dec. 2016. It also accuses Nielsen of “suppressing” ratings for WBRN and all of Beasley’s Tampa stations.
The counterclaim argues that Nielsen used its “monopoly power” to interfere with Bubba’s contractual relationships with Beasley and with Bubba’s relationship with WBRN’s advertisers and syndication partners. It accuses Nielsen of publishing “knowingly false, defamatory allegations of ratings distortion activities” against Clem and says that Nielsen unfairly applied its rules and imposed “unprecedented sanctions” on Beasley to cause it to end its contract with Bubba. In addition, there are charges of unfair competition, anticompetitive behavior and other deceptive acts, along with a claim that the actions by Nielsen, Cox and Calta cost Bubba several million dollars in damages.
The accusations are based on hundreds of pages of documents produced by Nielsen in discovery, almost all of which have been designated by Nielsen as confidential.
In a separate Motion to Modify Protective Order filed on Friday, Bubba’s lawyers asked the court to allow a procedural mechanism for challenging the designations of some of the documents as “confidential” or “confidential—attorney’s eyes only.” In the Friday filing, Bubba’s lawyers ask the court to rule that any party that disagrees with the designation of any discovery material as confidential can notify the opposing party in writing. The designating party then has 10 days to convince the court to issue an order upholding the designation. That places the burden of proving the material warrants confidentiality on the designating party. If they’re unable to convince the court, or the court decides the confidential designation is inappropriate, the challenged designation would be rescinded and the parties wouldn’t have to treat the information as confidential.
Bubba’s legal team says the modification is necessary because all but 66 pages of the 80,000 pages of discovery material Nielsen produced in the case has been designated by Nielsen as confidential. The defendants claim their use of the discovery materials “has been severely limited” by the protective order and that the Proposed Counterclaim and Third Party Complaint quotes, cites or references 300 pages of discovery material that Nielsen has “improperly designated” as confidential.
Bubba’s attorneys say they’ve been trying to resolve the confidentiality issue directly with Nielsen but have been unsuccessful, arguing that they don’t think any of the info referenced in their Counterclaim and Third Party Complaint is actually confidential. Nielsen’s position is that the deadline for asserting counterclaims or third party claims passed on Dec. 19, 2016. Bubba’s lawyers disagree, saying they have until Jan. 19 to amend pleadings and say they gave Nielsen a copy of the Proposed Counterclaim and Third Party Complaint on Nov. 18 but that Nielsen’s conduct prevented it from filing with the Court.
Bubba’s motion also asks the court to extend the deadline for filing motions to amend pleadings by 10 days after the court rules on the Motion to Modify Protective Order.
Inside Radio 17th Jan 2017
