Attorneys for Bubba “The Love Sponge” Clem have asked a federal court in Tampa to overrule a magistrate judge’s order in the syndicated morning man’s case against Nielsen. The order partially denied Clem’s motion to force Nielsen to release Media Rating Council documents related to the accuracy of its PPM service in markets beyond Tampa.
In its lawsuit against Clem, Nielsen alleges that ratings tampering by the Tampa-based host called the integrity of its ratings system into question and caused it damages up to $25 million, based on contract price concessions purportedly demanded by Cox Media Group. But Clem’s legal team argues that Nielsen’s system has “fundamental flaws” known throughout the radio industry and it wants to use MRC documents, including those from markets where the ratings watchdog has not accredited the service, to bolster its case. Magistrate judge Amanda Sansone earlier limited Clem’s MRC documents discovery to just those for the Tampa market from 2014-16. Clem’s team says it needs the wider national documents to properly defend against Nielsen’s claims and to prosecute its own counterclaims. Clem is also asking the court to require Nielsen to make a corporate rep available for it to depose on the MRC subject.
Clem’s lawyers have been trying since June 2016 to get their hands on confidential MRC documents to help buttress an argument central to their defense—that “Nielsen’s ratings are inaccurate and, therefore, any purported damages claimed by Nielsen in this matter cannot be properly attributed to Defendants.” The MRC has so far refused to turn over any documents, claiming they’re not named in the lawsuit. In June 2017, Clem’s side asked the court to order the MRC to hand over those documents.
In its filing last week Clem’s team says limiting its MRC discovery requests to only Tampa “unfairly blocks Defendants from obtaining information which is crucial to their claims and defenses.” By suing Clem for alleged ratings tampering, “Nielsen put its reputation and integrity of audience estimates and ratings system at issue and made them relevant topics for discovery,” Clem’s filing says. “Defendants have a right to defend themselves and question the integrity and accuracy of Nielsen’s audience estimates and ratings system….This Court should again instruct Nielsen that it cannot bring a lawsuit seeking millions of dollars from Defendants and then not allow them access to properly discoverable information.”
Clem’s filing itemizes a battery of methodological mishaps that have called the accuracy of Nielsen’s ratings into question. Among them are an August 2016 incident when Nielsen removed nearly three-dozen PPM households from the Los Angeles panel during the August survey after finding “irregular compliance patterns” among 35 L.A. panelists, and on Nov. 10 2016 when Nielsen reported the loss of 8% of installed meters across its entire PPM panel in week one of the December ratings survey. Clem’s filing also references that 18 meters “were improperly installed in the wrong households in the Tampa market,” and “at some point between June and October 2015, Nielsen learned that it had assigned various PPMs that had incorrect serial numbers to about 300 PPM panelists due to the misconduct of one of its own employees.”
Nielsen has until Aug. 31 to respond to Clem’s objections to the judge’s order.