Bubba Says He Doesn’t Have to Follow Nielsen’s Rules

12-15-15

More from the recent court filing by Bubba The Love Sponge (Todd Clem) who’s asked a judge to throw out the million dollar lawsuit he’s been slapped with from Nielsen for ratings tampering. Part of Clem’s reasoning for asking the judge to dismiss the suit have to do with whether or not Clem, as a contractor of Beasley, even has to follow the rules other hosts have to follow when they are paid employees of a station.

Clem says Nielsen cannot plead that he is “or ever has been a ever been a Nielsen subscriber, or an employee or agent of any Nielsen subscriber or syndicator, or has ever agreed to undertake any obligation to abide by Nielsen rules in any way. Nor are there real allegations that Nielsen’s License Agreement with Beasley binds either Defendant to Nielsen’s rules or policies. Thus, Nielsen cannot begin to plead fraud by virtue of the fact that any of its panelists contacted Defendant Clem independent of one another, because Defendants have never been bound by any bargained-for promises, contractual or otherwise, restraining them from such contact.”

Clem also takes aim at Nielsen’s lawsuit dollar amount of $1 Million. “Nielsen cannot premise jurisdiction on a schizophrenic theory of harm that Nielsen sometimes imagines to be not less than a million dollars, while at other times asserts is “difficult to quantify”; encompasses harm to “the entire radio industry,” but nevertheless neither impacted the published ratings nor was corroborated by a parallel good-faith investigation by non-party Beasley; and includes ongoing reassurance costs toward at least one nervous client who has demanded “financial and other compensation” after publication of this case, but as a result of alleged conduct that Nielsen admits did not impact its published ratings, and lasted roughly two weeks. Such shifting, contradictory claims of harm naturally result when a Plaintiff knows it does not belong in its court of choice.

Clem states that he was caught, he admitted to what he did wrong, apologized, Nielsen stated the ratings were not affected and Clem was punished by Beasley (who carries his show in several markets) and that should be the end of this story. And, Clem says that when Nielsen refiled its lawsuit, with more details, it was proof it never had a case against him in the first place. From the Clem filing…”Nielsen hit the reset button with an Amended Complaint offering overlapping allegations and identical causes of action. This operates as an implicit acknowledgment that Nielsen needed to improve its case by setting forth more and better allegations of fraud, different in kind rather than degree to the first complaint. Rather, Nielsen attempts to parlay granular discussion of contacts initiated by a lone fan into fraud-by- association because a few other fans are alleged to have connected with Defendant Clem independent of one another; primarily outside Nielsen’s fraud timeline; without particular compensation; and for the purposes of showing their ongoing and hardcore support for Defendant Clem’s program.”

Clem also says Nielsen’s claim for that million dollars is a bit crazy. “Nielsen cannot premise jurisdiction on aschizophrenic theory of harm that Nielsen sometimes imagines to be not less than a million dollars, while at other times asserts is “difficult to quantify”; encompasses harm to “the entire radio industry,” but nevertheless neither impacted the published ratings nor was corroborated by a parallel good-faith investigation by non-party Beasley; and includes ongoing reassurance costs toward at least one nervous client who has demanded “financial and other compensation” after publication of this case, but as a result of alleged conduct that Nielsen admits did not impact its published ratings, and lasted roughly two weeks.”