Professional Documents
Culture Documents
Clem Amended Complaint
Clem Amended Complaint
Plaintiffs,
Case No.: 2019-CA-1795-CICI
v.
Defendants.
Plaintiffs, Bubba Clem (“Clem”) and Bubba Radio Network, Inc. (“BRN”), sue Cox
Media Group, LLC and Cox Radio, Inc., (collectively “C0x”) and Michael Calta, and allege as
follows:
NATURE OF PROCEEDING
1. Bubba Clem is a well-known radio personality famous for the Bubba the Love
Sponge® Show. He brings this action against Cox and its agents t0 recover damages for
Defendants’ malicious and deceitful destruction 0f his business relationships and career. As
explained in greater detail below, Cox, Clem’s former employer and subsequent competitor, was
outraged by and jealous of Clem’s success after he left Cox. After leaving Cox, Clem quickly re-
established himself at his new station as number one in the Tampa market. Cox, its agents and
employees, were determined to destroy Clem both personally and professionally. Cox’s deceitful
and malicious acts did just that. When Cox was done, Clem’s lucrative contracts and business
relationships had been eliminated and the listener following he had cultivated was decimated.
***ELECTRONICALLY FILED 05/09/2019 03:28:18 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
PARTIES
Clem is a well—known radio personality and the host of an internationally—syndicated radio show
3. Bubba Radio Network, Inc. (“BRN”) is a Florida corporation with its principal
place 0f business located at 5021 West Nassau Street, Tampa, Florida 33607. BRN owns and
Delaware limited liability company, with its principal place 0f business at 6205 Peachtree
Dunwoody Road in Atlanta, Georgia. Cox Media is an integrated broadcasting, publishing, direct
marketing and digital media company. Cox Media currently owns and operates 14 broadcast
television stations and 61 radio stations in more than 20 media markets — including WHPT-FM
5. Cox Radio, Inc. (“Cox Radio”) is a Delaware corporation with its principal place
0f business at 6205 Peachtree Dunwoody Road in Atlanta, Georgia. Cox Radio is a wholly-
6. Michael Calta (“Calta”) is an individual who, upon information and belief, resides
in Pasco County, Florida. At all relevant times, Calta has been an employee 0f COX and Cox
Radio and the host 0fthe Mike Calta Show, a morning radio show 0n WHPT 102.5.
resides in New York. Guthrie is currently the president 0f COX. Guthrie previously served as
Cox’s executive vice president 0f National Ad Platforms and president 0f CoxReps fl the biggest
television representation firm in the United States, with over $3 billion in revenue.
resides in Hillsborough County, Florida. Lawless is a vice president 0f Cox and its Tampa
Market Manager.
10. Matthew Loyd (”Loyd"), is an individual who, upon information and belief,
resides in Hillsborough County, Florida. Loyd is a former employee 0f Cox and Cox Radio.
11. Nielsen Audio, Inc. (“Nielsen”) (f/k/a Arbitron, Inc.) is a Delaware corporation
with its principal place 0f business located at 9705 Patuxent Woods Drive, Columbia, Maryland
21046. Nielsen is authorized t0 do business in the State of Florida and maintains offices located
in Pinellas County, Florida at 501 Brooker Creek Boulevard, Oldsmar, Florida 34677. Nielsen
publishes opinions about audience size and composition for radio stations located in markets
throughout the United States, including in the Tampa—St. Petersburg-Clearwater market (the
“Tampa Market”).
12. Beasley Media Group, a subsidiary 0f Beasley Broadcast Group, Inc., (“Beasley”)
is a radio broadcasting company that owns and operates radio stations in various markets,
including WBRN-FM 98.7 in the Tampa Market. Beasley maintains its corporate headquarters at
established in 1963. Measurement services desiring MRC Accreditation are required to disclose
t0 their customers all methodological aspects 0f their service; comply with the MRC Minimum
Standards for Media Rating Research and other standards MRC produces; and submit to MRC-
JURISDICTION
14. This Court has subject matter jurisdiction because Plaintiffs seek relief in an
amount greater than $1 5,000, exclusive 0f interest, attorneys” fees and costs.
15. As more specifically set forth below, this Court has personal jurisdiction over
Defendants under § 48.193, Florida Statutes, because they each personally, in concert with one
another and/or through an agent 0r co—conspirator, engaged in one or more 0f the following acts:
16. As more specifically set forth below, sufficient minimum contacts exist between
each Defendant and the State 0f Florida t0 satisfy Due Process under the U.S. Constitution
because Defendants have engaged in substantial and not isolated activity within and/or directed
conspired t0 commit intentional torts expressly aimed at Clem, the effects and harms 0f which
were calculated t0 and did cause injury to Clem, within the State 0f Florida; such that Defendants
should have reasonably anticipated being sued by Clem in the State 0f Florida.
17. Venue is pl‘Oper in this Court pursuant t0 sections 47.011 and 47.021, Florida
Statutes because, among other things, the claims at issue accrued within Pinellas County, Florida
18. A11 conditions precedent t0 the bringing 0f this action have been satisfied, waived
19. From January 2008 t0 December 31, 2014, Clem and BRN were under contract
with Cox. Pursuant t0 their contract, Clem hosted the Bubba the Love Sponge® Show 0n Cox-
owned radio stations, including 0n WHPT 102.5 in Tampa, and was consistently rated as the N0.
20. In August 2014, Cox elected not t0 renew its contract with Clem and BRN, and t0
move WHPT’s afternoon show, the Mike Calta Show, t0 its morning drive segment (6:00 t0
10:00 AM) in place 0f the Bubba the Love Sponge® Show. In an effort t0 retain Clem and
BRN’S audience, Cox removed the Bubba the Love Sponge® Show from broadcast 0n WHPT
for the remaining 4 months 0f BRN’s contract so that the Mike Calta Show would have 4 months
without competition from BRN and Clem t0 establish itself as the new morning show 0n WHPT.
21. Shortly after the expiration of Clem and BRN’s contract with WHPT. Clem and
BRN entered into contracts with Beasley under which the Bubba the Love Sponge® Show would
Sponge® Show made its debut 0n WBRN 0n 01‘ about January 5, 201 5.
B. Nielsen Ratings
22. Nielsen provides radio audience measurement and ratings services nationally and
23. In the Tampa Market, Nielsen primarily uses a device called a Portable People
Meter (“PPM”) to estimate radio audiences. A PPM is a portable device that captures a PPM
panelist’s exposure t0 radio broadcasts by detecting an inaudible code embedded in the audio
24. Nielsen’s subscribers include radio stations, advertisers and advertising agencies.
Advertising agencies, media buyers and advertisers use the data t0 decide whether t0 purchase
advertising 0n the various competing stations based 0n the size and demographics 0f their
25. Radio stations, such as Beasley’s WBRN and Cox’s WHPT, use Nielsen’s ratings
t0 compete for revenue through the sale 0f advertising. Nielsen’s ratings are also used by radio
26. During the siX-year period in which Clem and BRN were under contract with
Cox, the Bubba the Love Sponge® Show 0n WHPT was consistently the N0. 1 rated morning
show in the Tampa Market for the demographic categories 0f “Persons 25 to 54” and “Men 25 t0
54”. These two categories are highly sought-after, advertiser—friendly demographics that are the
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27. In or around August 2014, at the time Cox advised Clem and BRN that their
contract was going to be non-renewed in 2015 by Cox, WHPT was also N0. 1 in advertising
billings in the Tampa Market according to advertising revenue reports prepared by the
28. WHPT’s ratings and advertising revenue dropped significantly after Cox removed
Clem from the air in late August 2014 and moved the Mike Calta Show t0 the morning drive.
29. In fact, after Clem’s removal, from October t0 December 2014, WHPT’s share
among men ages 25-54 declined to 8.0%, 7.4%, and 7.7%, respectively. In December, its share
for the morning drive segment amounted to only about 56.6% 0f the share it had received during
30. After Clem and BRN’s contract with Cox ended 0n December 31, 2014, Clem
and the Bubba the Love Sponge® Show debuted 0n WBRN on January 5, 2015. WBRN quickly
surpassed WHPT in the ratings for the morning radio shows broadcast in the Tampa Market.
31. As shown in the table below, WBRN surpassed WHPT in the ratings for the
“Persons 25-54” demographic by March 2015, and continued t0 d0 so until at least June 2015,
when Cox induced Nielsen to assist it in its scheme to remove Clem from the air in the Tampa
Market:
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32. Similarly, as shown by the table below, WBRN also began quickly to overtake
WHPT in the ratings for the “Men 25-54” demographic:
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33. Cox’s management team in the Tampa Market, including Guthrie and Lawless,
were highly frustrated by WHPT’s inability t0 achieve the success in ratings that it had when
Clem was the host 0f its morning drive show. In an effort t0 reclaim WHPT’s No. 1 status in the
Tampa Market, Cox, acting through its agents, including Guthrie and Lawless, set out to
34. On April 22, 2015, both WBRN and WHPT aired a live telephone call between
35. During the call, Calta, acting within the scope of his agency, falsely claimed that
WBRN’S ratings were improving because Clem was tampering with the ratings. Specifically,
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Calta made the following false statements about Clem:
(c) that Clem had PPMs on watch winders in a shed and/or a shipping container;
(d) the Clem had purchased a PPM from his dentist’s assistant; and
(e) that after Clem left WHPT, he stopped using the PPMs he
allegedly had control over t0 benefit WHPT, causing its ratings t0
fall.
36. Cox management encouraged Calta’s false on-air statements. Cox also adopted
Calta’s false statements by archiving the tape and promoting it on its website and on various
social media outlets as the “Mike Calta Show Featured Cut.” Cox directed its audience and
various news agencies to “[h]ear Mike Calta put Bubba in his place.”
37. Cox and Calta knew that the false statements would result in an investigation by
38. Calta’s false statements about Clem in fact led t0 an investigation by Nielsen.
39. As part 0f its investigation, Nielsen contacted Cox executives. The Cox
executives ultimately confirmed that the allegations were based 0n nothing more than rumors,
and not 0n any direct knowledge on the part 0f Calta 01‘ Cox.
40. Cox also identified Clem’s dentist’s assistants and confirmed that they were not
Nielsen panelists.
41. Nielsen visited Clem’s home and studio. and the homes 0fthe members of Clem’s
staff, with a super beacon designed to detect the presence 0f PPMS and confirmed that there were
none.
42. On 01‘ about May 5, 2015, Nielsen Closed its investigation into Calta’s on—air
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statements about Clem, having found no evidence 0f any wrongdoing 0n the part 0f Clem 01‘
43. Beasley later asked Nielsen t0 provide it with a letter stating, among other things,
that Nielsen had investigated the on—air allegations made by Calta 0n April 22, 2015, and found
n0 support for them. Cox directed Nielsen not t0 provide the letter t0 Beasley and Nielsen
complied.
44. For many years, Clem’s best friend was the wrestling sensation, Terry Gene
45. In 2007, Hogan had consensual sexual relations with Clem’s then wife, Heather
Clem (a/k/a “Heather Cole”). Heather Clem and Bubba Clem had an “open marriage” by mutual
consent. Clem had video cameras installed in his home that recorded both the sexual activity and
46. Clem and Cole filed for divorce in 201 1. The divorce was very public and caustic.
During the parties’ separation, Clem wanted t0 safeguard the Video material from public
dissemination.
47. Loyd, Calta and other Cox employees were aware 0f this situation and of Clem’s
concerns.
48. Subsequently, unbeknownst t0 Clem, the videos were stolen from Clem’s office.
Upon information and belief, in March 0r April 2012, Defendants conspired t0 release portions
0f the Videos t0 certain media outlets. Specifically, still photos appeared 0n Ihedirly.com 0n April
and Hogan. Initially, Hogan believed that Clem had leaked the Videos and the release caused
50. A subsequent law enforcement investigation determined that the video was stolen
from Clem’s office by Cox agent and employee, Loyd. A witness recalled seeing Loyd and Calta
together in 2012 watching a Video 0f Hogan and Cole having sex, which they were viewing 0n a
51. The release of the videos resulted in litigation by Hogan against Gawker that
ended in a $130 million judgment and, ultimately, Gawker ’s bankruptcy. Even as this Complaint
is being filed, the repercussions from the 2012 releases are continuing. Hogan is involved in
52. The Defendants’ exploitation 0f the Videos did not end in 2012.
53. In the live 0n—ai1‘ telephone call between Calta and Clem on April 22, 2015, Calta
telegraphed the Defendants’ next wrongful act. Calta announced, “I hear there’s a couple 0f
other sex tapes that are coming out. Because you’re a scum bag that videotaped your friend’s
54. Calta was not speculating. He was announcing the Defendants’ next malicious
move to destroy Clem. The Defendants intended t0 release additional information from the
purloined material.
55. Upon information and belief, in July 2015, the Defendants caused racially
insensitive comments recorded 0n the Hogan video with Cole to be leaked t0 The Enquirer and
Radar Online.
56. On July 24, 2015, the Enquirer published its story quoting racially insensitive
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excerpts from a Hogan video.
57. Defendants possessed, had access t0 and/or control over the material that was
leaked t0 the Enquirer, and all the Defendants had motive and opportunity t0 leak this material —
particularly in July 201 5, when the animosity between Cox/Calta/Loyd and Clem was at its peak.
the World Wrestling Federation (“WWF”), and erased from WWE’s Hall of Fame, network and
website. Hogan faced an onslaught of adverse media exposure, accusing him 0f being a racist,
59. Upon information and belief, Defendants released this additional material in 201 5
with the intent 0f tying Clem to the negative media coverage depicting Hogan as a racist, and
dredging up the 2012 stories 0f Clem’s alleged “betrayal” 0f his friend. Defendants took these
actions t0 depress Clem’s ratings and to interfere with the Plaintiffs’ contractual and business
60. The release 0f this material did further damage t0 Clem’s personal relationship
with Hogan. It also adversely impacted Plaintiffs’ business relationships and listener following.
However, the Defendants were far from done in seeking t0 destroy Clem’s career.
61. Upon information and belief, throughout 2015, COX pressured Nielsen to use its
monopoly power over the audience measurement and ratings for the Tampa Market t0 eliminate
Clem from broadcasting 0n WBRN in competition With WHPT by (1) improperly manipulating
Nielsen’s ratings for the Tampa Market simultaneously to increase WHPT’S share t0 the benefit
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0f Cox, while decreasing the share of WBRN to the detriment 0f Beasley, Clem and BRN; (2)
falsely accusing Clem and BRN of engaging in ratings distortion activities in an effort to, among
other things, conceal the wrongful conduct 0f Cox and Nielson with regard t0 monthly ratings
reports and interfere with Clem’s and BRN’s contractual relationships with Beasley and other
syndication and advertising relationships; and (3) engaging in unfair methods 0f competition and
various related unconscionable, deceptive, and unfair acts 01‘ practices in violation 0f Chapter
501 0f the Florida Statutes that were intended t0 simultaneously benefit Cox and harm Beasley,
62. Upon information and belief, Cox, acting through its agents, including Guthrie
and Lawless, used its position as a large Nielsen subscriber t0 exact revenge on Clem and coerce
Nielsen employees and management into agreeing t0 assist in its scheme. Cox demanded that
Nielsen take an unprecedented stance against Clem and BRN — who were not Nielsen subscribers
63. Upon information and belief, Cox’s twin motives for inflicting harm on Clem and
BRN were, (i) WHPT’s failure through legitimate means t0 achieve the ratings success that it
enjoyed throughout its contract with Clem and BRN; and (ii) Cox’s management team’s need t0
justify their ill-considered decision not t0 renew Clem (a long-time N0. 1—rated morning radio
personality in the Tampa Market) and to replace him with Calta (a radio personality who had
oI74090\183881\89onsm
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G. Cox Pressures Nielsen T0 De-Install PPM Panelists Who Are
Heavy Listeners Of Clem And WBRN
64. In furtherance 0f its scheme, Cox pressured Nielsen to identify the households
included in the PPM panel for the Tampa Market whose listening habits showed a preference for
Clem and WBRN, and to systematically remove (0r “de—install”) them from the PPM panel
65. At Cox’s insistence, 0n 0r around June 18, 2015, Nielsen de—installed two
households each comprised 0f two panelists on the PPM panel for the Tampa Market who it had
identified as having listening habits showing a preference for Clem and WBRN.
66. Nielsen’s unwarranted de-installation 0f these two households from the panel
caused WBRN t0 lose approximately half of its 25-54 share and resulted in a dramatic drop in its
station rank.
67. Nielsen admitted on several occasions that its decision t0 de-install these two
households was not based 0n any misconduct by Clem 0r BRN. Upon information and belief,
Nielsen’s sole basis for de-installing the households at the behest 0f Cox was the fact that they
were the heaviest listeners 0f the Bubba the Love Sponge® Show 0n WBRN.
68. One 0f the households Nielsen improperly de-installed at Cox’s behest included
two panelists who were members 0f a local band that had performed at events sponsored by
WBRN. Following an investigation into these panelists, Nielsen concluded that they did not
manipulate 01‘ distort their listening preferences and that their high content exposure to WBRN
was authentic.
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H. Cox Arranges T0 Have Nielsen Conduct A “Sting” Operation
Designed T0 Entrap Clem
69. Over the course of several telephone calls between Cox and Nielsen from May t0
August 2015, Cox concocted a plan t0 conduct a “sting” operation designed to entrap Clem with
70. Upon information and belief, the sting operation planned by Cox was t0 involve
the purported inclusion 0f a third party onto Nielsen’s Tampa PPM panel who would be directed
by Cox and Nielsen t0 approach Clem and his staff as a trusted and loyal fan while wearing a
PPM device with the goal 0f enticing them into engaging in alleged ratings distortion activities.
71. Upon information and belief, at the behest 0f Cox, Nielsen selected a known felon
and fan 0f BRN and Clem, i.e. Nicholas Tabachuk, t0 become a Nielsen panelist. In turn, Nielsen
gave members 0f Tabachuk’s household gifts in excess 0f what it had provided other similar
72. In furtherance 0f the scheme, an agent 0f Cox and Calta, named Randy Hahn,
made contact with Tabachuk and prompted him t0 develop evidence of supposed wrong-doing
73. On August 13, 2015, Tabachuk communicated with Hahn and Calta to provide
this supposed evidence. Later that same day, Calta sent an email t0 Tabachuk promising t0 “take
74. On August 14, 2015, Calta again emailed Tabachuk and asked for more material
0n Clem. Tabachuk emailed back asking whether and how he was going t0 get paid. Tabachuk
then emailed his wife stating they would soon come into a large sum ofmoney as a result 0fthis
clandestine scheme.
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75. On the same day as the emails regarding payment for “evidence,” August 14,
2015, Cox reported t0 Nielsen that a PPM panelist in the Tampa Market (Le. Tabachuk) had
contacted Cox t0 report that Clem was engaging in ratings distortion activity. That same day,
Cox arranged a meeting between Tabachuk and a member 0f Nielsen’s security team for August
18, 201 5.
76. On August 17, 2015, Cox Vice-president Lawless contacted Nielsen and requested
a meeting with Nielsen’s security team 0n August 18, before Tabachuk’s meeting, “advising”
Nielsen that he wanted to provide background on the information that Tabachuk was expected t0
provide.
77. On August 18, 2015, Calta, Lawless, and a lawyer representing Cox met with
Tabachuk at a restaurant and then escorted him t0 Nielsen’s office in Oldsmar, Florida, t0 meet
78. The meeting at Nielsen lasted approximately three hours. After the meeting,
several employees and/or agents 0f Cox, including Calta, Lawless, and Cox’s lawyer, took
Tabachuk t0 a dinner at the Salt Rock Tavern restaurant during which they encouraged Tabachuk
t0 continue t0 play along with Bubba so as to further implicate him in a ratings scandal and bring
him down.
79. On September 21, 2015, based on the information concocted and supplied by
Cox’s agents and representatives, Nielsen sent Beasley a written notice of allegations 0f ratings
distortion activities attributed t0 Clem. The notice also directed Beasley to provide Nielsen with
a written response t0 the allegations within seven days pursuant t0 Beasley’s contract with
Nielsen; and informed Beasley that upon receiving its written response, Nielsen would advise
l6
80. Thereafter, 0n September 25, 2015, under pressure from Cox and in furtherance
0f Cox’s scheme, Nielsen leaked t0 the press that it was investigating Clem for allegations that
he tampered with ratings. COX pressured Nielsen t0 leak the information for the sole purpose 0f
attempting t0 influence Beasley to terminate Clem and BRN and thereby eliminate them as
Cox’s competition.
81. Nielsen subsequently admitted that none 0f the PPM data obtained from any PPM
panelist alleged to have engaged in ratings tampering activities with Clem was ever included in
any 0f its monthly ratings reports. Nielsen’s ratings were never affected by any claimed action by
Clem. It was not necessary for Nielsen to reprocess 0r reissue any 0f its monthly ratings reports.
82. Nevertheless, at the urging of Cox, Nielsen imposed its most severe response t0
the alleged ratings distortion activity by delisting Beasley’s WBRN for the month 0f September
2015. Significantly, there have been several other instances involving on-air radio personalities
who have been accused 0f engaging in conduct similar to that which Clem is alleged t0 have
engaged in here (126., ratings distortion activity involving a PPM panelist). However, WBRN is
the first and only radio station in a PPM market that Nielsen has ever de—listed for any reason.
De—listment is Nielsen’s most severe sanction and its imposition against WBRN occurred only as
the result of Cox’s interference.
83. On October 4, 2015, Beasley notified Nielsen that it had decided not t0 terminate
its contract With Clem and BRN, but would require him t0 “apologize to Beasley, advertisers and
fans . . . admit to wrongdoing . . . and publicly state that he will never do it again.” Beasley’s
notice also informed Nielsen that it would issue a press release regarding the alleged ratings
17
distortion activities and require Clem and his staff at BRN t0 complete compliance training.
notified Beasley that it was reserving its right to delist WBRN for more than the month of
September 2015. Upon information and belief, the motive behind Nielsen’s threat t0 extend the
period of Beasley’s de-listment for additional months was the fact that Cox would not be
satisfied until Clem was terminated by Beasley and eliminated as competition t0 COX in the
Tampa Market. In fact, Nielsen predicted that Cox would be furious about Beasley’s decision not
t0 terminate Clem.
85. On October 5, 2015, after Nielsen informed Cox of Beasley’s decision not t0
terminate Clem, COX Vice-president Lawless called Nielsen t0 express his extreme dissatisfaction
that Nielsen had decided t0 only delist WBRN for one month. He said he was shocked by the
decision and predicted that the industry would also be shocked. He repeatedly demanded t0
know ifNielsen would be requiring that Clem come off the air.
86. Lawless contacted Nielsen again 0n October 6, 2015. This time he requested the
email address and telephone number for Nielsen’s CEO, Mitch Barns.
87. Shortly thereafter, Nielsen sent members of its security team t0 reinvestigate the
households that it had previously investigated and de-installed for reasons unrelated t0 any
misconduct 01‘ ratings distortion activities committed by Clem 0r BRN. During the
reinvestigation of the households, Nielsen threatened t0 bring criminal charges against the
former panelists and certain non-panelist members 0f the household if they refused t0 admit t0
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J. Cox Compels Nielsen T0 Issue False Product Notification
Concerning Clem
88. On November 2, 2015, after having failed t0 bring about the termination 0f
Clem’s contract with Beasley, Cox compelled Nielsen t0 issue a second Product Notification
stating that it had decided t0 de—list WBRN for an additional month based 0n alleged “further
(Emphasis added.)
90. The Product Notification falsely implied that Nielsen had discovered evidence 0f
new, current, and ongoing panel tampering attempts by Clem. In fact there was n0 such new
91. On information and belief, Nielsen’s decision t0 exclude WBRN from its October
2015 ratings was the direct result of pressure by Cox. Cox sought t0 eliminate Clem as
competition and t0 punish Beasley for not terminating its contract with Clem and BRN.
92. By engineering the omission 0f WBRN’s ratings information in the October 201 5
radio market report, Cox substantially impaired WBRN’S ability t0 compete and operate 0n an
equal basis with the other stations in the Tampa Market and therefore caused Clem and BRN t0
advertising.
93. In addition, Clem and BRN have been unable to procure additional broadcast
syndication agreements with any U.S.-based radio broadcaster as a result 0f Cox’s actions.
94. Despite the substantial benefit COX had already derived from its scheme, and the
harm caused t0 Clem and BRN, Cox continued t0 use its status as a large Nielsen subscriber t0
pressure Nielsen to impose additional sanctions against Beasley such that Beasley would have n0
95. Cox demanded that Nielsen immediately start preparing and implementing,
among other things, a “Death Penalty” level sanction against alleged wrongdoers. If not, Cox
threatened t0 take actions, including: (i) filing a lawsuit against Nielsen; (ii) seeking a public
audit 0f Nielsen’s compliance with MRC ethical standards; and (iii) seeking a Congressional
97. Specifically, 0n October 6, 2016, Nielsen notified Beasley that it deemed certain
on—air comments made by Clem expressing his disappointment with recent audience estimates t0
be 0f serious concern. This was highly unusual as similar comments are commonly expressed by
radio show hosts throughout the country. Under pressure from COX, Nielsen later notified
Beasley that it intended t0, and in fact did, note Clem’s comments 0n the special notices page 0f
20
98. Cox also pressured Nielsen t0 suppress ratings for all 0f Beasley’s radio stations
in the Tampa Market, including WBRN, causing those radio stations t0 rapidly decline in ratings
and making them unable to achieve the level of success they had consistently achieved
previously.
99. On December 9, 2016, Beasley terminated its contract with Clem and BRN via
letter. Beasley cited Nielsen’s decision to include the special notice in its October 2016 eBook. It
also noted that Clem’s “ratings and WBRN’s revenue continued t0 be substandard causing
100. Clem and BRN have incurred substantial damages as a result of Cox’s scheme,
and Defendants’ actions, including but not limited t0: (i) lost income; (ii) lost advertising
revenue; (iii) 10st relationships with current and prospective advertisers; (iv) lost value in
contracts with Beasley; and (V) lost relationships with syndication partners and new prospective
syndication markets.
101. Clem and BRN will also continue t0 incur damage t0 their business relationships
103. This is an action seeking money damages against Defendants for their tortious
interference with Clem and BRN’S contractual and business relationships with Beasley.
104. Clem and BRN were parties t0 a contractual agreement with Beasley (the
on WBRN.
among other things, the termination 0f the Contract and the elimination 0f Clem and BRN as
108. Clem and BRN had existing business and contractual relationships with the
purchasers 0f advertising 0n its network and WBRN, including but not limited t0, McDonald’s,
Omaha Steaks and several other large corporate advertisers (collectively, the “Business
Relationships”), from which Clem and BRN received substantial financial benefit directly, and,
indirectly through profit sharing. The retention 0f these Business Relationships was 0f Vital
109. On an ongoing and systematic basis, directly and through others working 0n their
behalf, Defendants engaged in conduct intended t0 influence Clem and BRN’S advertisers t0
terminate, decline to continue, and decline t0 embark upon Business Relationships with them.
110. The aforementioned conduct included the improper and wrongful use 0f email,
social media and the airwaves and the unauthorized access 0f and distribution 0f confidential,
111. Defendants also schemed t0 intentionally and unjustifiably bring about the
share 0f the radio listening audience would appear much smaller than it actually is in order t0
discourage advertisers from continuing 01‘ embarking upon Business Relationships with
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Plaintiffs.
112. As a result of the Defendants’ actions, Clem and BRN’s contracts with its
advertisers and prospective advertisers have been harmed in that several large corporate
have terminated, declined to continue, 0r declined t0 embark upon Business Relationships With
them.
113. As a further result of the Defendants’ conduct, Beasley initially required Clem
and BRN to enter into an amended contract under substantially less favorable terms than the
previous contract.
115. As a result 0f the Defendants’ conduct, Clem and BRN have suffered damages in
116. Defendants’ conduct was intentional, willful and calculated t0 cause damage to
the Defendants. The conduct was perpetrated with the intentional and improper purpose 0f
C. For such other and further relief as the Court deems just and proper.
0174090\183881\8910852v1
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(Torll'ous Interference with
w
Advantageous Business Relationships)
119. This is an action seeking money damages against Defendants for their tortious
interference with Clem and BRN’s contractual and advantageous business relationships with the
purchasers 0f advertising on the Bubba the Love Sponge® Show on WBRN, and BRN’s
network.
120. Clem and BRN had existing business and contractual relationships with the
purchasers of advertising 0n its network and WBRN, including but not limited to, McDonald’s,
Omaha Steaks and several other large corporate advertisers (collectively, the “Business
Relationships”), from which Clem and BRN received substantial financial benefit directly, and,
123. On an ongoing and systematic basis, directly and through others working 0n their
behalf, Defendants engaged in conduct intended t0 influence Clem and BRN’s advertisers t0
124. The aforementioned conduct included the improper and wrongful use of email,
social media and the airwaves and the unauthorized access 0f and distribution 0f confidential,
about the termination 0f the Business Relationships by manipulating Nielsen’s ratings so that
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WBRN’S share of the radio listening audience would appear much smaller than it actually is in
126. As a result of the Defendants’ actions, Clem and BRN’s contracts with its
advertisers and prospective advertisers have been harmed in that several large corporate
have terminated, declined to continue, 0r declined t0 embark upon Business Relationships with
them.
conjunction with them, Clem and BRN have suffered damages in an amount exceeding $15,000,
128. Defendants’ conduct was intentional, willful and calculated t0 cause damage t0
the Defendants. The conduct was pelpetrated with the intentional and improper purpose 0f
C. For such other and further relief as the Court deems just and proper.
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DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury 0n all issues so triable.
ReSpectfully submitted,
MW
Jeffrey E. Nusinov,
jnusi110v@nusin0vsmith.com
Paul D. Raschke,
PHV
PHV
# 1015001
# 1015126
praschkeQDnusinovsmith.com
NUSINOV SMITH LLP
6225 Smith Avenue, Suite 200B
Baltimore, Maryland 2 1 209
Telephone: (410) 554-3600
Facsimile: (410) 554-3636
W. Drew Sorrell
/s/
W. Drew Sorrell
Florida Bar N0. 0160903
drew.sorrell@lowndes—law.com
LOWNDES, DROSDICK, DOSTER,
KANTOR & REED, P.A.
2 1 5 North Eola Drive
Orlando, Florida 32801
Telephone: (407) 41 8—6281
Facsimile: (407) 843—4444
Dated: Mayi ,
201 9
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