News BKG3

Attorneys for Nielsen and Bubba “The Love Sponge” Clem have submitted their final witness and exhibit lists in the measurement giant’s $1 million ratings tampering lawsuit against the Tampa-based morning man. Now all they need is a firm date for the trial to start. On Monday came word of yet another delay in the trial that was to have started that morning. As of press time, the court had yet to announce a rescheduled start date.

Nielsen lists 29 witnesses it intends to call, including Clem and a dozen Nielsen executives, such as Nielsen Audio managing director Brad Kelly, senior VP & sales director John Snyder and senior VP of local product leadership Bill Rose. Nielsen also plans to put Nicholas Tabachuk, the so-called “cooperating panelist,” on the stand, along with other panelists. Also on the Nielsen witness list are Beasley president Bruce Beasley and executive VP of Programming Justin Chase, Cox-Tampa/market manager Keith Lawless, and former Nielsen and Arbitron managers such as Rhody Bosley and Bob Patchen.

Nielsen lists 81 pieces of evidence it may present in court, including numerous screen shots of text messages between Tabachuk and Clem, an Amazon order for two oscillating fans allegedly purchased by Clem for Tabachuk, pamphlets Nielsen gives to panelists about how to use its meters, security do’s and don’ts, a memo to Bruce Beasley from Nielsen about alleged ratings distortion activities, video of Clem apologizing on a Tampa TV station and Nielsen’s amended contract with Cox, which Nielsen says it had to discount due to Clem’s alleged misdeeds.

Clem’s attorneys also intend to call 29 witnesses, including former Jacor and Clear Channel CEO Randy Michaels, JVC Broadcasting CEO John Caracciolo, Genesis Communications CEO Bruce Maduri, Beasley general counsel Joyce Fitch, consultant Dom Theodore, WHPT Tampa morning man Mike Calta, a former PPM panelist, and several names on the Nielsen list, including Chase, Lawless and Clem.

Clem’s exhibit list contains 512 pieces of evidence, including Facebook messages with Tabachuk, charges against the “cooperating panelist” by the State Of Florida, emails about reissued and reprocessed Nielsen ratings, summaries of Nielsen employees included as PPM panelists and Nielsen-affiliated households, coverage of the reissued Tampa ratings and other news from Inside Radio and other publications, description of Nielsen methodologies, emails from MRC head George Ivie and Nielsen’s year-end financials.

The stakes for both parties are high. By taking the unprecedented action of suing a radio personality for alleged ratings tampering, Nielsen hopes to make a very public example out of Clem that violating its rules about attempting to influence the behavior of its survey participants carries a hefty price tag. The ratings giant is seeking $1 million in damages from the Tampa-based morning man for a litany of charges.

Clem is attempting to clear his name, reclaim his reputation and turn the tables on Nielsen, portraying its ratings methodologies as a badly compromised, seriously flawed big hot mess. Clem’s strategy is to put Nielsen’s methodology on trial with a sensational counterclaim that argues that Nielsen’s own actions have damaged its reputation, not the host’s alleged ratings manipulation.

Nielsen is banking on Tabachuk to help make its case that Clem “knowingly communicated with and had contact with persons he knew to be Nielsen panelists and instructed Nielsen panelists to use their PPM devices and ratings diaries… to supply false and misleading information to Nielsen about their radio listening.” Tabachuk has admitted in an affidavit to receiving cash payments from Clem starting in Oct. 2015. Clem has denied the allegations.

The gist of Clem’s March 22, 2017 countersuit is that Nielsen selected Tabachuk, along with three other members of his household as panelists with the express goal of using him to obtain evidence against Clem in a “sting operation” that including competing broadcaster Cox Media Group.

The high-profile case has helped a squadron of lawyers rack up thousands of billable hours in a case that has been dragging on since October 2015, with no shortage of twists and turns. Delayed multiple times, the trial is expected to last five to seven days.