Filing # 89266074 E-Filed 05/09/2019 03:28:18 PM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

BUBBA CLEM and

BUBBA RADIO NETWORK, INC.,

Plaintiffs,
Case No.: 2019-CA-1795-CICI
v.

COX MEDIA GROUP, LLC;

COX RADIO, INC.;
MICHAEL CALTA,

Defendants.

ANIENDED COMPLAINT AND DEMAND FOR JURY TRIAL

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.

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***ELECTRONICALLY FILED 05/09/2019 03:28:18 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
 PARTIES

2. Bubba Clem (“Clem”) is an individual who resides in Pinellas County, Florida.

Clem is a well—known radio personality and the host of an internationally—syndicated radio show

known as the Bubba the Love Sponge® 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

produces the Bubba the Love Sponge® Show.

4. Cox Media Group, LLC (“Cox Media”), a subsidiary 0f Cox Enterprises, is a

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

102.5 which operates from offices located in Pinellas County, Florida.

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-

OWned subsidiary 0f Cox Media Group, Inc.

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.

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 RELEVANT NON-PARTIES
7. Kim Guthrie (“Guthrie”) is an individual who, upon information and belief,

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.

8. Keith Lawless (“Lawless”) is an individual who, upon information and belief

resides in Hillsborough County, Florida. Lawless is a vice president 0f Cox and its Tampa

Market Manager.

9. Nicholas Tabachuk (“Tabachuk”) is an individual who, upon information and

belief, resides in Pinellas County, Florida.

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

3033 Riviera Dr #200 Naples, FL 3401 3.

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 13. The Media Rating Council (“MRC”) is a non-profit industry association

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-

designed audits t0 authenticate and illuminate their procedures.

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:

(a) committed tortious acts within the State 0f Florida, the

effects 0f which were suffered in Pinellas County, Florida;

(b) committed intentional torts expressly aimed at Clem, the

effects 0f which were suffered in Pinellas County, Florida;

(c) operated, conducted, engaged in, or carried 0n a business 0r

business venture within the State 0f Florida, 0r had an
office in this State;

(d) engaged in substantial and not isolated activity within the

State 0f Florida; and/or

(e) engaged in a conspiracy t0 commit tortious acts against

Clem within the State 0f Florida and/or engaging in overt
acts in furtherance 0f that conspiracy within the State 0f
Florida.

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

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at the State 0f Florida, reside 01‘ maintain offices in the State 0f Florida, and/or committed 01‘

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

and the Defendants reside in different counties.

18. A11 conditions precedent t0 the bringing 0f this action have been satisfied, waived

0r otherwise would be futile.

FACTS COMMON TO ALL COUNTS

A. Clem And BRN

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.

1 morning radio personality in the Tampa Market.

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

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air in the Tampa Market during WBRN’s morning drive segment. Clem and the Bubba the Love

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

in the Tampa Market.

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

content 0f the broadcasts.

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

respective listening audiences.

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

stations t0 aid them in making programming decisions.

C. WHPT’S Ratings Before And After Clem’s Departure

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

target audience for WHPT and WBRN.

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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

accounting firm 0f Miller Kaplan Arase LLP.

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

Clem’s final month at the station.

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:

MONTH WBRN (New Station) WHPT (Cox)

I

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Jammy 4?] 6.8

February 4.2 6.7

March I
_S‘:5: 5.1

April 6.8 5.7

May 6:9 5.3

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 June 8.2 5.4

32. Similarly, as shown by the table below, WBRN also began quickly to overtake
WHPT in the ratings for the “Men 25-54” demographic:

MONTH WBRN (New Station) WHPT (Cox)

'

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February 6.4 10.0
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- .- ..

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7.7 8 2

_3 2 .746.
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10.0 7 6

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

systematically and wrongfully eliminate Clem as competition in the Tampa Market.

D. During An On-Air Telephone Call, Cox’s Agent And

Employee, Calta, Sets The Stage For A Nielsen Investigation
Of Clem

34. On April 22, 2015, both WBRN and WHPT aired a live telephone call between

Clem and Calta.

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:

(a) that Clem Was cheating Nielsen’s ratings system;

(b) that Clem had control over PPMs;

(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

Nielsen into Beasley, Clem and BRN.

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‘

BRN. Nielsen thereafter advised Cox of the outcome of its investigation.

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.

E. The Hulk Hogan Videos: Cox’s Agent And Employee, Calta,

Leaks Material T0 Injure Clem

44. For many years, Clem’s best friend was the wrestling sensation, Terry Gene

Bollea, (professionally known as “Hulk Hogan”).

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

Hogan’s conversations with Clem and Cole.

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

19, 2012, and live video appeared 0n Gm/vkercom in September 2012.

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 49. The disclosure had a devastating personal and professional effect 0n both Clem

and Hogan. Initially, Hogan believed that Clem had leaked the Videos and the release caused

irreparable damage t0 their friendship.

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

desktop computer at Cox’s office in St. Petersburg.

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

ongoing litigation t0 recover from Cox the massive losses he sustained.

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

banging your wife. That’s what your reputation is.”

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.

58. Ultimately, the Enquirer ’s

publication 0f the Hogan material caused Hogan t0 be

immediately terminated by World Wrestling Entertainment, Inc. (“WWE”), formally known as

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,

and leading t0 additional financial losses.

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

relationships with others.

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.

F. Cox Pressures Nielsen T0 Assist It In Its Scheme T0 Eliminate

Clem From The Tampa Broadcast Market

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,

Clem and BRN.

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

— with respect to Cox’s repeated, unfounded claims 0f ratings distortion activity.

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

never achieved Clem’s ratings success as a morning show radio personality).

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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

without sufficient cause.

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

respect t0 Nielsen ratings.

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

panelists and installed four PPM'S in the Tabachuk household.

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

by Clem and BRN regarding the Nielsen ratings.

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

care of‘ Tabachuk.”

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

with a Nielsen “investigator”.

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

Beasley ofits decision as t0 whether remedial action is necessary.

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 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.

I. Beasley Notifies Nielsen 0f Its Decision Not T0 Terminate Its

Contract With Clem

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

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distortion activities and require Clem and his staff at BRN t0 complete compliance training.

84. In response to this notification, and in furtherance 0f Cox’s scheme, Nielsen

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

conspiring with Clem t0 distort the ratings.

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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

evidence 0f panel—tampering attempts by [Clem].”

89. Specifically, Nielsen’s second Product Notification stated as follows:

As a result 0f Rating Distortion activities in the form 0f attempted panel

tampering by a syndicated personality at WBRN-FM, Nielsen did not report
audience estimates for WBRN—FM in the September 2015 Tampa-St. Petersburg-
Clearwater PPM Radio Market Report. Nielsen has further evidence 0f panel
tampering attempts by this syndicated personality. Nielsen has assessed the
evidence 0f these additional pane] tampering attempts in context with the
previously disclosed panel tampering efforts that were acknowledged by this
personality. As a result 0f these additional activities, and pursuant t0 Nielsen’s
Rating Distortion guidelines, Nielsen is not reporting audience estimates for
WBRN-FM in the October 2015 Tampa—St. Petersburg—Clearwater PPM Radio
Market Report.

(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

evidence and Clem had not engaged in such activities.

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

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incur substantial monetary damages and restrained their ability to compete for the sale 0f

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.

K. Cox Continues T0 Pressure Nielsen T0 Impose Additional

Unwarranted Sanctions On Beasley, Leaving Beasley With N0
Choice But T0 Terminate Clem

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

choice but t0 terminate its contract with Clem and BRN.

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

inquiry into Nielsen’s PPM data collection adequacy.

96. In response t0 Cox’s threats, Nielsen imposed additional pressure 0n Beasley t0

terminate its relationship with Clem and BRN.

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

the October 201 6 Tampa-St. Petersburg—Clearwater ratings report and eBook.

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 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

WBRN t0 suffer significant cash flow loss.”

L. Clem And BRN Have Been Damaged By Cox’s Scheme

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

and goodwill in the radio industry as a result

w 0f the Defendants’ tortious

(Tortious Interference with Contractual Relationships)

acts.

102. Plaintiffs incorporate by reference paragraphs 1 through 101 0f this Complaint, as

though fully set forth herein.

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

01 74090\1 8388 I\8910852v1

2]
“C0ntract”) pursuant t0 which Clem hosted and BRN produced Bubba the Love Sponge® Show

on WBRN.

105. Defendants were not parties t0 the Contract.

106. Defendants knew of the Contract.

107. Defendants engaged in a scheme t0 intentionally and unjustifiably bring about,

among other things, the termination 0f the Contract and the elimination 0f Clem and BRN as

competition t0 Cox’s WHPT.

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

importance t0 the maintenance 0f the Contract.

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,

proprietary and personal information.

111. Defendants also schemed t0 intentionally and unjustifiably bring about the

termination 0f the Business Relationships by manipulating Nielsen’s ratings so that WBRN’S

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

01 74090\1 83881\8910852vl
22
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

advertisers, including McDonalds, Omaha Steaks as well as numerous prospective advertisers

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.

114. In response to the Defendants’ continuing interference, Beasley subsequently

terminated the Contract with Clem and BRN.

115. As a result 0f the Defendants’ conduct, Clem and BRN have suffered damages in

an amount exceeding $15,000, the exact amount to be determined at trial.

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

causing damage and without justifiable cause.

117. Defendants acted with actual malice.

WHEREFORE, Plaintiffs demand judgment against Defendants as follows:

A. For damages in an amount to be determined at trial;

B. For pre— and post-judgment interest; and

C. For such other and further relief as the Court deems just and proper.

0174090\183881\8910852v1
23
 (Torll'ous Interference with
w
Advantageous Business Relationships)

1 18. Plaintiffs incorporate by reference paragraphs 1 through 101 0f this Complaint, as

though fully set forth herein.

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,

indirectly through profit sharing.

121. Defendants were not party t0 the Business Relationships.

122. Defendants knew 0f the above Business Relationships.

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

terminate the existing Business Relationships.

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,

pl'Oprietary and personal information.

125. Defendants also engaged in a scheme t0 intentionally and unjustifiably bring

about the termination 0f the Business Relationships by manipulating Nielsen’s ratings so that

0 74090\I 83881\89
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24
WBRN’S share of the radio listening audience would appear much smaller than it actually is in

order t0 discourage advertisers from continuing the Business Relationships.

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

advertisers, including McDonalds, Omaha Steaks as well as numerous prospective advertisers

have terminated, declined to continue, 0r declined t0 embark upon Business Relationships with

them.

127. As a result of Defendants’ conduct, and the conduct 0f those working in

conjunction with them, Clem and BRN have suffered damages in an amount exceeding $15,000,

the exact amount t0 be determined at trial.

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

causing damage and without justifiable cause.

129. Defendants acted with actual malice.

WHEREFORE, Plaintiffs demand judgment against Defendants as follows:

A. For damages in an amount t0 be determined at trial;

B. For pre— and post-judgment interest; and

C. For such other and further relief as the Court deems just and proper.

0 74090\183881\8910852V1
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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

Attorneysfor Plaintifls, Bubba Clem

and Bubba Radio Network, Inc.

Dated: Mayi ,
201 9

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