Filing # 111187523 E-Filed 08/03/2020 03:27:05 PM
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`Case Number: CACE-20-012575 Division: 21
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`IN THE CIRCUIT COURT OF THE 17TH
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`JUDICLAL CIRCUIT IN AND FOR
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`BROWARD COUNTY, FLORIDA
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`CASE NO.
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`BAER’S FURNITURE CO., INC.,
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`Plaintiff,
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`V.
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`COMCAST CABLE COMMUNICATIONS, LLC,
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`Defendant
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`/
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`W
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`Plaintiff Baer’s Furniture Co.,
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`Inc.
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`(“Baer’s”)
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`sues defendant Comcast Cable
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`Communications, LLC (“Comcast”) and alleges as follows:
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`NATURE OF THE CASE
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`1.
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`This action arises from Comcast’s fraud and breach of contract with respect to the
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`advertising program it agreed to run for Baer’s. Comcast fraudulently induced Baer’s to pay for
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`television advertising throughout Florida by misrepresenting the expected viewership of the
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`television programs during which the advertisements would be shown.
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`In addition, Comcast
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`breached its agreement with Baer’s to run additional commercials at no cost to make up for its
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`failure to run the advertising program for which it contracted with Baer’s. As a result, Baer’s paid
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`millions of dollars to Comcast, but received only a fraction of its bargain.
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`JURISDICTION AND VENUE
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`2.
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`This is an action for damages, exclusive of interest and attomey’s fees, in excess of
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`$30,000 and for equitable relief
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`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/03/2020 03:27:03 PM.****
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`
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`Case Number: CACE-20-012575 Division: 21
`
`IN THE CIRCUIT COURT OF THE 17TH
`
`JUDICLAL CIRCUIT IN AND FOR
`
`BROWARD COUNTY, FLORIDA
`
`CASE NO.
`
`BAER’S FURNITURE CO., INC.,
`
`Plaintiff,
`
`V.
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`COMCAST CABLE COMMUNICATIONS, LLC,
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`Defendant
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`/
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`W
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`Plaintiff Baer’s Furniture Co.,
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`Inc.
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`(“Baer’s”)
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`sues defendant Comcast Cable
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`Communications, LLC (“Comcast”) and alleges as follows:
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`NATURE OF THE CASE
`
`1.
`
`This action arises from Comcast’s fraud and breach of contract with respect to the
`
`advertising program it agreed to run for Baer’s. Comcast fraudulently induced Baer’s to pay for
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`television advertising throughout Florida by misrepresenting the expected viewership of the
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`television programs during which the advertisements would be shown.
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`In addition, Comcast
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`breached its agreement with Baer’s to run additional commercials at no cost to make up for its
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`failure to run the advertising program for which it contracted with Baer’s. As a result, Baer’s paid
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`millions of dollars to Comcast, but received only a fraction of its bargain.
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`JURISDICTION AND VENUE
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`2.
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`This is an action for damages, exclusive of interest and attomey’s fees, in excess of
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`$30,000 and for equitable relief
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`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/03/2020 03:27:03 PM.****
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`
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`3.
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`Venue is proper in this Court pursuant to section 47.011, Florida Statutes, et seq.,
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`because the claims and causes of action accrued in Broward County, Florida, where Baer’s was
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`injured and faces irreparable injury if Comcast is not enjoined.
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`PARTIES
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`4.
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`Baer’s is a Florida corporation, organized pursuant to the laws of Florida, with its
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`principal place of business at 1589 Northwest 12th Avenue, Pompano Beach, FL 33069.
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`5.
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`Comcast is a Delaware company, organized pursuant to the laws of Delaware, with
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`its principal place of business at 1701 John F. Kennedy Blvd., Philadelphia, PA 19103. Comcast
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`does business in Florida.
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`It
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`is subject
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`to this Court’s jurisdiction pursuant
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`to section
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`48.193(1)(a)(1), Florida Statutes, because it operates, conducts, engages in, or carries on a business
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`or business venture in this state or has an office or agency in this state; pursuant to section
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`48.193(1)(a)(2), Florida Statutes, because it committed a tortious act within this state; pursuant to
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`section 48.193(1)(a)(6), Florida Statutes, because it caused injury to persons or property within
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`this state arising out of an act or omission outside this state when, at or about the time of the injury,
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`it was engaged in solicitation or service activities within this state; and pursuant to section
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`48.193(1)(a)(7), Florida Statutes, because it breached a contract in this state by failing to perform
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`acts required by the contract to be performed in this state.
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`FACTUAL BACKGROUND
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`6.
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`Founded in 1945, Baer’s is a family-owned company that is one of Florida’s largest
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`furniture retailers. It has 16 showrooms, stretching from Pinecrest in South Florida to Casselberry
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`in Central Florida.
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`7.
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`Baer’s offers a vast selection of name brand furniture at competitive prices. Its
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`business model is highly dependent on advertising.
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`In particular, it is dependent on television
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`advertising in the geographical areas where it does business.
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`8.
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`In the last calendar year, Baer’s spent $9.5 million in advertising, with a substantial
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`portion of that amount spent on television advertising.
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`9.
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`Comcast is one of the largest communications companies in the United States.
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`Among its services, it offers cable television programming and advertising.
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`10.
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`Effectv, formerly known as Comcast Spotlight, is the advertising sales division of
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`Comcast.
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`It promotes itself as “help[ing] local, regional and national advertisers grow their
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`business.”
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`11.
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`Comcast, through Effectv, touts to advertisers such as Baer’s that it “appl[ies] data
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`to television advertising in new ways to help each business reach its target customers” and “use[s]
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`advanced analytics to prove the impact of a campaign on business results.” Comcast did not keep
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`to those representations in its dealings with Baer’s.
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`12.
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`Baer’s has been an advertiser on Comcast since at least 2002. During that time,
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`Baer’s has paid Comcast approximately $14.8 million.
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`13.
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`Baer’s has looked to Comcast to advertise in four of its most important markets:
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`Miami/Ft. Lauderdale, West Palm Beach, Sarasota, and Naples/Ft. Myers. Each of those areas
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`comprises a “Designated Market Area” (“DMA”) for purposes of television advertising. Comcast
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`has been a critical channel for Baer’s advertising in those DMAs.
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`14.
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`For example, Comcast claims that in the Miami DMA it has a 64% audience share.
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`The audience share claimed by Comcast for the West Palm Beach DMA is even greater, at 71%.
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`And the market share for the Naples/Ft. Myers market is higher than that, at 72%. Comcast’s
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`
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`audience reach is even greater when its programming and advertising on Dish Network is taken
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`into account.
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`15.
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`Baer’s contracted with Comcast on a “ratings points” basis. “Ratings points” is a
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`metric for the number of viewers for a particular television show as a portion of the market. That
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`means that the amount Comcast would charge Baer’s for running its commercials was based on
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`the number of “ratings points” (or viewers) for the particular show during which the Baer’s
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`commercial would be shown.
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`16.
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`Toward the end of each year during the time period relevant to this action, Baer’s
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`and Comcast would negotiate a contract for the following year. For example, the contract for the
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`year 2017 was negotiated and agreed to in late 2016. Baer’s would typically approve a particular
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`schedule, which would then be in effect for the remainder of the year.
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`17.
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`As part of each contract, Baer’s and Comcast would reach agreement on the
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`channels on which the Baer’s commercials would be shown during the contract period, along with
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`the days of the week and time of day that the commercials would be run.
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`18.
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`In order to induce Baer’s to enter into each contract, Comcast represented to Baer’s
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`the number of “ratings points” for each day and time period when a Baer’s commercial was to be
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`shown. Because the contract covered future showing of commercials, Comcast represented to
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`Baer’s that the “ratings points” attributed to a particular time slot or show were based on reliable,
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`good faith estimates prepared by research companies.
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`19.
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`Once the parties reached agreement on the terms for the upcoming year, Comcast
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`would present Baer’s with a schedule for the first week of the contract, showing the agreed upon
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`time and date slots for the commercials and the represented estimates of viewership, or “ratings
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`points,” during those dates and times. Baer’s would approve the schedule and, for the remainder
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`of the year, Comcast would provide Baer’s with weekly iterations of the agreed upon schedule.
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`20.
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`In the Fall of 20 1 8, during the midterm national elections period, Baer’s questioned
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`whether Comcast was running Baer’s commercials in accordance with its agreement with
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`Comcast. The reason Baer’s questioned this was because, during the 2018 election season, many
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`of the spots for its commercials were being used to run political advertisements. Yet, Comcast
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`was billing Baer’s as if all its advertisements were being run in accordance with the agreement for
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`20 1 8.
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`21.
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`The fact that not all of its advertisements were running at the agreed upon date and
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`time slots during that period was not a surprise to Baer’s.
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`It is often a practice during national
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`election periods for political advertisements to bump non-political advertising. But that does not
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`mean that an advertiser, such as Baer’s, would lose the money it had paid to have its advertisements
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`run.
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`22.
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`The industry practice, which Comcast purports to follow, is that if advertisements
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`are bumped, they would be run on other times and dates. The key to this practice is that the
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`advertisements would be shown at other comparable time and date slots. The advertiser would
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`thus still receive the benefit of the agreement by way of having its advertisements run during other
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`programming with the same “ratings points.” In this way, an advertiser such as Baer’s would still
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`have its advertisements shown to the same size audience for which it had contracted. Conversely,
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`if the broadcaster does not so compensate with replacement advertising, it would not charge the
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`advertiser as if it the bumped commercial had been run in accordance with the agreement.
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`23.
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`Upon investigation, Baer’s realized that Comcast was not running its bumped
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`advertisements on times and dates and on channels that would net the number of “ratings points”
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`for which it had contracted. Yet, Comcast charged Baer’s the same amount as if it had run the
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`advertisements during programming having the same audience level, or “ratings points,” as
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`provided by the parties’ agreement.
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`24.
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`Baer’s confronted Comcast with this information and requested that Comcast
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`provide it with a “post” of the “ratings points” for the programming during which Baer’s
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`advertisements had actually been run in 2018. A “post” shows the “ratings points” for the shows
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`on which an advertisement is broadcast. Comcast did so.
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`25.
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`The post showed that Comcast had failed miserably to perform its contractual
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`obligations to Baer’s in the Miami/Ft. Lauderdale and West Palm Beach DMAs. For example, in
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`the Miami/Ft. Lauderdale DMA Comcast had run Baer’s advertisements during programming
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`having only 37% of the contracted-for “ratings points.” The result was similar for the West Palm
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`Beach DMA, where the post showed that Baer’s advertisements had been run during programming
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`having only 42% of the contracted-for “ratings points.”
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`26.
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`Faced with the evidence of its breach of the agreements, Comcast agreed to “make
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`up points for Baer’s from 2018,” meaning that it would run free-of-charge advertisements for
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`Baer’s sufficient to make up the shortfall in “ratings points” for the year 2018 in the Miami/Ft.
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`Lauderdale and West Palm Beach DMAs. (Attached as Exhibit A is the email exchange between
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`Baer’s and Comcast setting for the agreement.)
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`27.
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`In view of the Comcast’s failure to run the advertisements in 2018 accordance with
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`its agreement with Baer’s, Baer’s requested that Comcast also provide it with a “post” of the
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`“ratings points” for 2017 in the Miami/Ft. Lauderdale and West Palm Beach DMAs. Comcast did
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`so, and the results were similar to those for 2018. Comcast had shorted Baer’s for more than half
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`of the “ratings points” required under the 2017 agreement, as well.
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`28.
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`Comcast has admitted that it breached its 2017 and 2018 agreements with Baer’s.
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`In fact, it has conceded that “During the years of 20 1 7 and 2018 our delivery of audience estimates
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`has drastically under delivered. For the discussed time periods of broadcast 2017 and 2018,
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`Comcast Spotlight has under delivered by 19,285 gross rating points.” (Attached as Exhibit B is
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`the memorandum containing this communication.)
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`29.
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`Comcast advised Baer’s that “To say that we are disappointed in our shortfall is an
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`understatement.” Comcast advised Baer’s it would not “shirk” responsibility for short-changing
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`Baer’s on advertisements for the years 2017 and 2018. Comcast confirmed its agreement to make
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`up during 2019 for both the 2017 and 2018 shortfalls in “ratings points.” (Attached as Exhibit C
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`is the email exchange containing this communication.)
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`30.
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`Comcast further agreed that it would “be coding [Baer’s make up] spots as ‘VIP’
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`so that they have a much greater chance of clearing in the networks you covet, thus garnering
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`higher ratings [i.e., “points”] and helping us get to a zero sum total much faster.” (Attached as
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`Exhibit D is the email exchange containing this communication.) In other words, Comcast agreed
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`it would prioritize running Baer’s advertisements so that the “ratings points” shortfall could be
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`made up more quickly.
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`31.
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`Despite its admission that it had breached the parties’ advertising agreements for
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`2017 and 2018 and its agreement to make up the “ratings points” shortfalls free of charge to Baer’s,
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`on September 16, 2019, Comcast advised Baer’s that “Specific to the request from Baer’s Furniture
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`regarding under delivery from prior schedules, Spotlight [Comcast] will not accept, run, or steward
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`previously executed campaigns.”
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`(Attached as Exhibit E is the document containing this
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`communication.) Upon information and belief, Comcast made up only approximately 1/3 of the
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`shortfall in “ratings points” it had agreed with Baer’s it would run free of charge and on a VIP
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`basis.
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`32.
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`Comcast later confirmed to Baer’s that, as set out in its September 16, 2019,
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`communication, it was refusing to perform its agreement to make up the “ratings points” shortfall
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`for the years 2017 and 2018.
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`33.
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`Baer’s also entered into agreements with Comcast to run its advertisements in the
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`Sarasota DMA. Like the agreements for the Miami/Ft. Lauderdale and West Palm Beach DMAs,
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`the agreement for the Sarasota DMA was predicated on “rating points,” meaning that Comcast was
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`obligated to run Baer’s advertisements during television programming corresponding with “ratings
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`points” specified in the agreement.
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`34.
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`In the course of its discussions with Comcast concerning the “ratings points”
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`shortfalls for the Miami/Ft. Lauderdale and West Palm Beach DMAs, Baer’s discovered that
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`Comcast never subscribed to the “ratings points” book for the Sarasota DMA. That means that
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`Comcast could not have complied with its agreement with respect to “ratings points” in the
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`Sarasota DMA. Comcast knowingly misrepresented to Baer’s that
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`it was charging it for
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`advertisements based on “ratings points,” since it did not have the capability to do so.
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`w
`Breach of 2017 Miami/Fort Lauderdale DMA Agreement
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`35.
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`Baer’s realleges paragraphs 1 through 32, above.
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`36.
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`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
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`2017 in the Miami/Fort Lauderdale DMA during television programming having designated
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`“ratings points.” (Plaintiff does not have a copy of this agreement in its possession, but believes
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`that Comcast does.)
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`37.
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`Comcast materially breached the agreement.
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`38.
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`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
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`w
`Breach of 2018 Miami/Fort Lauderdale DMA Agreement
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`39.
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`Baer’s realleges paragraphs 1 through 32, above.
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`40.
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`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
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`2018 in the Miami/Fort Lauderdale DMA during television programming having designated
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`“ratings points.” (Attached as Exhibit F is the 2018 agreement for the Miami/Ft. Lauderdale
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`DMA.)
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`41.
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`Comcast materially breached the agreement.
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`42.
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`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
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`w
`Breach of 2017 West Palm Beach DMA Agreement
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`43.
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`Baer’s realleges paragraphs 1 through 32, above.
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`44.
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`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
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`2017 in the West Palm Beach DMA during television programming having designated “ratings
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`points.” (Attached as Exhibit G is the 2017 agreement for the West Palm Beach DMA.)
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`45.
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`Comcast materially breached the agreement.
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`46.
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`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
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`COUNT IV
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`Breach of 2018 West Palm Beach DMA Agreement
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`47.
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`Baer’s realleges paragraphs 1 through 32, above.
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`48.
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`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
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`2018 in the West Palm Beach DMA during television programming having designated “ratings
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`points.” (Attached as Exhibit H is the 2018 agreement for the West Palm Beach DMA.)
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`
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`49.
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`Comcast materially breached the agreement.
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`50.
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`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
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`COUNT V
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`Breach of Shortfall Agreement
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`51.
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`Baer’s realleges paragraphs 1 through 32, above.
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`52.
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`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in the
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`Miami/Ft. Lauderdale and Palm Beach DMAs in 2019 on a VIP basis during television
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`programming having designated “ratings points” in order to make up for the “shortfall” in its
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`running of Baer’s advertising in those DMAs in 2017 and 2018. (Copies of documents confirming
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`that agreement are attached as Exhibits B, C, and D.)
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`5 3.
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`Comcast materially breached the agreement.
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`54.
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`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
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`w
`Fraud—Miami/Ft. Lauderdale and Palm Beach Agreements
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`55.
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`Baer’s realleges paragraphs 1 through 32, above.
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`56.
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`Comcast represented to Baer’s that its estimates of “ratings points” upon which its
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`advertisements would be shown were based on reliable data of the “ratings points” for the dates
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`and times upon which the advertisements would be run.
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`57.
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`Comcast representations were false because the estimates as to “ratings points”
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`were not based on reliable data.
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`5 8.
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`Comcast knew the representation was false because it knew that the estimates of
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`“ratings points” were not based upon reliable data.
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`59.
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`Baer’s justifiably relied upon Comcast’s false representations in entering into the
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`2017 and 2018 agreements.
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`10
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`60.
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`As a result of its justifiable reliance on the false representations, Baer’s has been
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`damaged.
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`w
`Fraud—Shortfall Agreement
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`61.
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`Baer’s realleges paragraphs 1 through 32, above.
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`62.
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`Comcast represented to Baer’s that it would run Baer’s advertisements in the
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`Miami/Ft. Lauderdale and Palm Beach DMAs in 2019 on a VIP basis during television
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`programming having designated “ratings points” in order to make up for the “shortfall” in its
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`running of Baer’s advertising in those DMAs in 2017 and 2018.
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`63.
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`Comcast’s representation was false because at the time it was made Comcast had
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`no intention of performing in accordance with the representation.
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`64.
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`Baer’s justifiably relied upon Comcast’s false representation.
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`65.
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`As a result of the reliance on the false representation, Baer’s has been damaged.
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`w
`Fraud—Sarasota Agreement
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`66.
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`Baer’s realleges paragraphs 1 through 34, above.
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`67.
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`Throughout its relationship with Baer’s, Comcast represented to Baer’s that its
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`advertisements in the Sarasota DMA would be shown at times and dates and during television
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`shows with an estimated “ratings points.”
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`68.
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`Pursuant to that representation, Comcast charged Baer’s for advertising in the
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`Sarasota DMA on a “Cost Per Point” basis.
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`(Attached as Exhibit I and J, respectively, are the
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`Agreement for Sarasota DMA for the year 2013 and for the year 2018, both showing a charge
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`based on “CPP,” or “Cost Per Point” basis.)
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`69.
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`Comcast’s representations were false.
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`11
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`70.
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`Comcast knew the representations were false at the time they were made because
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`Comcast had no access to the “ratings points” book and had no intention of acquiring access to the
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`“ratings points” book when it made the representations.
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`71.
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`Baer’s justifiably relied upon Comcast’s false representations.
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`72.
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`As a result of the reliance on the false representations, Baer’s has been damaged.
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`w
`Eguitable Accounting
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`73.
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`Baer’s realleges paragraphs 1 through 34, above.
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`74.
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`Baer’s has contracted with Comcast since 2002.
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`75.
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`Baer’s contractual relationship with Comcast involves extensive and complicated
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`accounts.
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`76.
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`Comcast owed a duty to Baer’s to run Baer’s advertisements in compliance with its
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`agreements with Baer’s.
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`77.
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`Comcast is uniquely in possession of information concerning the dates, times, and
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`shows where it broadcast Baer’s advertisements.
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`78.
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`Baer’s is entitled to an accounting of the Baer’s advertisements runs by Comcast
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`pursuant to the various agreements between Baer’s and Comcast.
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`79.
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`Baer’s seeks an accounting for the Miami/Ft. Lauderdale, West Palm Beach, and
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`Sarasota DMAs for the time period from 2013 through 2019.
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`80.
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`Baer’s lacks an adequate remedy at law.
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`PRAYER FOR RELIEF
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`WHEREFORE, Baer’s respectfully demands judgment in its favor and against Comcast,
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`as follows:
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`12
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`
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`a.
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`Judgment for compensatory damages;
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`b.
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`Judgment for specific performance;
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`c.
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`Judgment for an equitable accounting;
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`d.
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`Judgment for costs; and
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`e. Any further relief the Court deems proper.
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`Dated: August 3; 2020
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`Respectfully submitted;
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`By: Carlos M. Sires
`Carlos M. Sires
`
`(Florida Bar No. 319333)
`Corey P. Gray
`(Florida Bar No. 115473)
`BOIES SCHILLER FLEXNER LLP
`
`401 East Las Olas Boulevard; Suite 1200
`Fort Lauderdale; FL 33301
`Telephone: (954) 356-0011
`Facsimile: (954) 356-0022
`Email: csires@ bsfllpcom
`Email: cgray@bsfllp.com
`
`James Fox Miller
`
`(Florida Bar No. 95070)
`BOIES SCHILLER FLEXNER LLP
`
`2435 Hollywood Boulevard
`Hollywood; FL 33020 14
`Telephone: (954) 924-0300
`Facsimile: (954) 924-0311
`Email:
`jfmillerngsfllpcom
`
`Attorneys for Plaintifl Baer’s Furniture
`Corp, Inc.
`
`13
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`EXHIBIT A
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`
`
`Jerry I. Baer
`
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Elberg, Michael <Michael_Elberg@comcast.com>
`Sunday, December 16, 2018 9:25 AM
`Jerry i. Baer
`lisakubica921@gmail.com
`
`Re: [EXTERNAL] Re: Baers MIA and WPB Update
`
`Yes. Lisa and I will be reviewing Monday. Hope u and your family are enjoying the
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`season as well.
`
`Sent from my iPhone w/ tYpOs and unintended Siri autocorrections
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`> On Dec 15, 2018, at 8:00 AM, Jerry I. Baer <jbaer@baers.com> wrote:
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`Hope the holiday season has been good. When will we get 17 numbers
`
`Sent from my iPad
`
`On Nov 27, 2018, at 11:28 AM, Elberg, Michael
`
`> >
`
`> >
`
`> >
`
`<MichaeI_E|berg@comcast.com<mailto:MichaeI_Elberg@comcast.com>> wrote:
`
`Jerry,
`
`Just to summarize our meeting yesterday, we will be implementing the following
`
`> >
`
`> >
`
`In 2019 we will run UD schedules in WPB and MIA that are coordinated with
`
`plan:
`
`> > >
`
`-
`
`your advertising flight weeks
`
`In MIA our UD base schedule will endeavor to achieve 225 W35-64 points
`
`> >
`
`-
`
`per week with a 325 point cap
`
`In WPB our UD base schedule will endeavor to achieve 125 W35-64 points
`
`> >
`
`-
`
`per week with a 200 point cap
`>
`
`
`
`> -
`
`Both UD base schedules will use the most recent 3 book average to predict
`
`rating delivery
`
`Adjustments to the schedule(s) will be made to ensure performance
`
`Unsold inventory will be examined and utilized on a weekly basis to add
`
`> >
`
`-
`
`> >
`
`-
`
`additional spots
`
`Monthly posts will be provided showing points achieved vs. deficit from
`
`Baer’s N/C weeks for 2018 will run as planned in December 2018 and
`
`-
`
`> >
`
`2018
`
`> >
`
`-
`
`January 2019
`
`October, November and contracted n/c weeks for December and Jan 2019
`
`-
`
`> >
`
`will be posted as available. Any under delivery from those weeks will be
`
`accounted for as discussed
`
`For Miami, your December 2018 schedule will run as ordered at n/c
`
`Cartoon Network will be removed from the UD base schedule and not be
`
`> >
`
`-
`
`> >
`
`-
`
`utilized
`
`Any networks that are not part of the initial UD base schedule will be
`
`> >
`
`-
`
`cleared with you before being incorporated into the UD schedule
`
`-
`
`A 2017 post for MlA/WPB will be provided in the next two weeks
`
`As always, please feel free to reach out with any questions or concerns. Both
`
`> >
`
`> >
`
`you and Baer’s are valued clients. We look forward to correcting this situation.
`
`Thank you for your past business and we look forward to a continued partnership
`
`with Baer’s.
`
`Best,
`
`> >
`
`> Mike
`
`>
`
`
`
`> From: Elberg, Michael
`
`> Sent: Thursday, November 15, 2018 3:52 PM
`
`> To: Jerry I. Baer (jbaer@baers.com<mailto:jbaer@baers.com>)
`
`> <jbaer@baers.com<mailto:jbaer@baers.com>>
`
`> Cc: Kubica, Lisa
`
`> <Lisa_Kubica@comcast.com<mailto:Lisa_Kubica@comcast.com>>;
`
`> Oberholtzer, Chris
`
`> <Chris_Oberholtzer@cable.comcast.com<mailto:Chris_0berholtzer@cable.co
`
`> mcast.com>>; Brandano, Laura
`
`> <laura_brandano@cable.comcast.com<mailtozlaura_brandano@cable.comcast.
`
`> com>>; Vignau, Paul
`
`> <Pau|_Vignau@cable.comcast.com<mailto:Paul_Vignau@cable.comcast.com>>
`
`> Subject: Baers MIA and WPB Update
`
`Jerry,
`
`As discussed, we are moving forward with our plan to make up points for Baer’s
`
`> >
`
`> > >
`
`from 2018. During our initial conversations you mentioned Baer’s intention to
`
`have a schedule run part cash and part Under Delivery (UD) weight. While the
`
`business is appreciated, we feel it is best to first make up the points in MIA and
`
`WPB before we consider adding money from Baer’s in 2019. Once we are all
`
`squared up, we can discuss putting a cash schedule in its place.
`
`Our plan is to be running and monitoring a UD base schedule in each market in
`
`> > > >
`
`conjunction with Baer’s event/sale weeks for 2019. Using W35-64 and Wednesday
`
`to Sunday, we will endeavor to run 200 to 225 points in MIA and 100 to 125 points
`
`in WPB per week. Each week we will look for additional inventory opportunities
`
`with the intention of not running over 325 points in either market. Once we make
`
`up this difference, we can look at future schedules. Please note that the point’s
`
`owed totals will adjust as the rest of 2018 posts out.
`
`> > >
`
`
`
`> These are just the broad-strokes to fill in some gaps while you are away. Enjoy
`
`Mexico! We can review more details at our scheduled meeting on Monday
`
`November 26th at 11 AM.
`
`Best,
`
`Michael
`
`Michael Elberg, Local Sales Manager
`
`> > > >
`
`> >
`
`> > >
`
`> Comcast Spotlight
`
`> 1800 NW 49th Street, Suite 140
`
`> Ft. Lauderdale, Florida 33309-3092
`
`> P: 954-590-0234
`
`> C: 954-815-1686
`
`> Email:
`
`> Michael_elberg@cable.comcast.com<mailto:Michael_e|berg@cable.comcast.c
`
`>om>
`
`> https://urldefense.proofpoint.com/v2/ur|?u=http-3A_www.comcastspotlig
`
`> h
`
`t.com&d=leGaQ&c=xNGszLhYOc2gOmBPehva|tNY_WETALneAUl_UuvaE&r=
`
`8T6NV6
`
`> 2
`
`CbGXzLAAoJNh5|Q&m=Kl|K7FpACiEY6Ay6nqubij14L3oNxchwgdGlPb47Y&s=Mcr
`
`8!:
`
`> o3lj0KSthb9y8Wr8fQTJkstTeLlinW4bTWYo&e=<https://u rldefense.proofpoin
`> t.com/v2/url?u=http-
`
`3A_www.comcastspotlight.com_&d=DwM FAg&c=xNGszLhY
`
`> 0
`
`c2gOmBPehvaltNY_WETALneAU|_UuvaE&r=8T6NV62chXzLAAoJNh5lQ&m=NK
`
`ouju6T
`
`> H3f6vUei5lpH17oGalejn9en753qu1fsE&s=LZpHAMJBlfoCDdGi45he-
`
`IBB7NVHY9L
`
`> lYlQ4R-PZRs&e=>
`
`
`
`This e-mail contains an advertisement or solicitation.
`
`If you would rather not
`
`> > >
`
`receive future e—mails from Comcast Spotlight, you may unsubscribe
`
`here<https://urldefense.proofpoint.com/v2/ur|?u=http-
`
`3A_www.recroom.com_optout_contact.aspx&d=DwMFAg&c=xNGszLhY0c2gOm
`
`BPehvaltNY_WETALneAUl_‘UuvaE&r=8T6NV62chXzLAAoJNh5|Q&m=NKouju6T
`
`H3f6vUei5lpH17oGawlan9en753qZ|1fsE&s=AuSc1quXXk3925F4—
`
`MtzSSNgn BJOOH KW3yZM Ra9HTU&e=>.
`>
`
`
`
`
`
`EXHIBIT B
`
`
`
`
`
`
`
`
`
`COMCAST
`S €13TLIGHT'5'
`
`February 26‘“, 2019
`
`Jerry,
`
`Thank you for very much for your partnership. Baer’s has been and will continue to be a valued client of
`Comcast Spotlight — Miami.
`
`There are many elements to delivering a high level of customer service. Among those is stewardship.
`Unfortunately this is an area where Comcast Spotlight - Miami has recently fallen short.
`
`During the years of 2017 and 2018 our delivery of audience estimates has drastically under delivered.
`For the discussed time periods of broadcast 2017 and 2018, Comcast Spotlight has under delivered by
`19,285 gross rating points.
`
`We will endeavor to run Baer‘s advertising moving fonlvard at no charge until the audience short fall is
`made up. We understand there are many factors great and small that have contributed to this and take
`the matter very seriously.
`
`Again, you are a valued partner and we look forward making good on our shortfall and putting this
`matter behind us.
`
`Sincerely,
`
`6/
`
`l/
`
`f r
`
`g" /
`
`f“— fl: l/x;
`
`Chris Oberholtzer
`
`VP/GM Comcast Spotlight - Miami
`
`
`
`
`
`EXHIBIT C
`
`
`
`
`
`
`
`
`
`Jeri-z I. Baer
`
`From:
`Sent:
`To:
`Cc:
`
`Subject:
`
`Elberg, Michael <Michael_E|berg@comcast.com>
`Thursday, February 28, 2019 6:37 PM
`Jerry l. Baer
`Oberholtzer, Chris; Weissman, Todd
`
`RE: Letter of Shortfall
`
`I
`
`Hi Jerry.
`
`I hope your trip is going well.
`
`WPB will be treated just like Miami... just like the business was ordered. The WPB
`
`number is 11,341. A makegood schedule for WPB delivered 546 grps in January.
`
`Both markets are being handled in the exact same way.
`
`Todd and I look forward to seeing you Thrusday.
`
`Best,
`
`ME
`
`—————Original Message-——--
`
`From: Jerry I. Baer [mailtozjbaer@baers.com]
`
`Sent: Thursday, February 28, 2019 9:36 AM
`
`To: Oberholtzer, Chris <Chris_Oberholtzer@cable.comcast.com>
`
`Cc: Elberg, Michael <Michae|_Elberg@cable.comcast.com>; Weissman, Todd
`
`<Todd_Weissman@comcast.com>
`
`Subject: [EXTERNAL] Re: Letter of Shortfall
`
`Thank you, is there a note on palm beach coming
`
`Sent from my iPad
`
`On Feb 28, 2019, at 9:32 AM, Oberholtzer, Chris
`
`<Chris_Oberholtzer@comcast.com<mailto:Chris_Oberholtzer@comcast.com>>
`
`wrote:
`
`Jerry,
`
`
`
`I hope you are well. As requested l have attached a letter stating Comcast
`
`Spotlight Miami’s points shortfall for the past two years. Todd and Mike are cc’d
`
`here as they will be the ones stewarding this under delivery from here. To say that
`
`we are disappointed in our shortfall is an understatement. Given the complexities
`
`of the current media landscape and the inherent flaws in cable television ratings
`
`measurement it would be easy to shirk responsibility. We are not doing that. We
`
`will not do that.
`
`We appreciate your understanding and willingness to let us remedy this deficit.
`
`We look forward to continuing our long standing partnership.
`
`Chris Oberholtzer
`
`VP/GM
`
`Comcast Spotlight - Miami
`
`<baers 2.26.19.pdf>
`
`
`
`
`
`EXHIBIT D
`
`
`
`
`
`
`
`
`
`Jerm I. Baer
`
`From:
`
`Sent:
`To:
`Cc:
`
`Subject:
`
`Jerry,
`
`Weissman, Todd <Todd_Weissman@comcast.com>
`
`Thursday, March 7, 2019 3:43 PM
`Jerry I. Baer
`Elberg, Michael
`
`Spot clearance strategy
`
`It was great seeing you today. Mike and l are fully committed to burning of the weight owed and getting back to our successful
`partnership.
`I mentioned an idea about ensuring better clearance for the under delivery schedules....And while the trade idea I had
`is unfortunately not feasible from an accounting standard, it did help us get an even better solution. It's a variation of the original
`priority code idea that Chris had -just enhanced under the new corporate guidelines. Starting in April (when the new guidelines kick
`in), we will be coding your spots as ”VIP" so that they have a much greater chance of clearing in the networks you covet, thus
`garnering you higher ratings and helping us get to a zero sum total much faster. We hope to show you the great results in weeks
`and months to come.
`
`Looking forward to breaking bread with you very soon!
`
`Thanks,
`Todd
`
`Todd Weissman
`Director of Sales
`Miami-Ft. Lauderdale
`
`Comcast Spotlight
`11606 City Hall Promenade
`Miramar, FL 33025
`Office: 954-628-1526
`Mobile: 312-505-1399
`
`
`
`
`
`EXHIBIT E
`
`
`
`
`
`
`
`
`
`COMCAST
`SPEIBTLIGHT'
`
`September 16, 2019
`
`Jeny,
`
`I wanted to take this moment to thank you and Baer’s Furniture for the business partnership over the past
`years. As the media landscape continues to evolve, Spotlight is well positioned to continue providing
`
`Baer’s with exceptional solutions and customer service. As agreed in the Advertiser Terms and
`Conditions between Comcast Spotlight and Baer’s Furniture Company that you signed on November 1 1,
`2016, the Fort Myers campaigns for Baer’s that are currently running will continue to run for the balance
`of 2019. To the extent you would like to place additional campaign buys in West Palm Beach, Miami or
`any other market we would be happy to work with you on an appropriate schedule.
`
`Specific to the request from Baer’s Furniture regarding under delivery from prior schedules, Spotlight
`will not accept, run or steward previously executed campaigns. We look forward to discussions with you
`and the markets so we can collaborate in designing integrated advertising solutions.
`
`Sincerely,
`
`
`
`
`W M
`
` ales Flonda
`
`ark Runge — V‘
`
`
`
`
`
`EXHIBIT F
`
`
`
`
`
`
`
`
`
`
`
`Baer's Miami-Ft. Lauderdale 2018 Final.2017.11.17.1200
`/%
`
`
`//
`
`J a.
`
`Wkl
`
`.
`
`wk1
`1/1
`'18
`
`All-Wks Avrg
`
`2 {7
`
`COMCAST
`:"5
`
`'
`
`Rate $$.00 Unit/ Unit
`Wk
`Tot
`
`
`'7 ___—___”-
`.1,
`»
`mar
`
`705
`Miémi—Ftlauderdaleflk
`515799.00
`705
`2050337
`7.71
`355
`77.1%
`3.7
`715630
`
`
`Oct16+1an17+Apr17+Aug17
`
`
`«an
`'7$3,‘~11
`_— ___—___-
`___-m
`l__-___"m
`_—--—---—- 1-1 meso-
`___-___“
`—u——-—--m-—In
`
`
`
`I——-—-—-—- 1.1 mseeo-
`
`——--——-amm-—-a
`
`—————--—-m—--a
`
`l——--——-———-——
`
`—m—-a—---—m
`_--=za-—-——-mma
`
`——-a—-_-——--~mm
`
`___-man—m
`__-———-_-—--
`l__—mm-m-m
`___—___”
`___—“mum
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`___—__-—--fi-_-za
`
`“mm—mam
`
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`___—___”:m-I
`
`——--—--—-—-
`___—___-
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`“null-“___"
`___—m-
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`__-———--_-_--
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`
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`_--—-—-—-—--
`
`
`
`
`
`
`
`——--—-—--_m
`
`“mm-m
`
`
`
`—_—-—_--—mmm
`
`
`_--—--—-_-
`
`
`——--—---m-_-
`
`
`m-
`
`
`_m---_16
`
`
`_-IEI-_--—-—IEI
`
`
`
`
`
`
`mmm— as
`
`
`
`
`SU 83-21;, ___-m-_ s
`
`s2s-oo-_-—m-—-_ 27
`mum
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