`
`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.
`
`COMCAST CABLE COMMUNICATIONS, LLC,
`
`Defendant
`
`/
`
`W
`
`Plaintiff Baer’s Furniture Co.,
`
`Inc.
`
`(“Baer’s”)
`
`sues defendant Comcast Cable
`
`Communications, LLC (“Comcast”) and alleges as follows:
`
`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
`
`television advertising throughout Florida by misrepresenting the expected viewership of the
`
`television programs during which the advertisements would be shown.
`
`In addition, Comcast
`
`breached its agreement with Baer’s to run additional commercials at no cost to make up for its
`
`failure to run the advertising program for which it contracted with Baer’s. As a result, Baer’s paid
`
`millions of dollars to Comcast, but received only a fraction of its bargain.
`
`JURISDICTION AND VENUE
`
`2.
`
`This is an action for damages, exclusive of interest and attomey’s fees, in excess of
`
`$30,000 and for equitable relief
`
`*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/03/2020 03:27:03 PM.****
`
`
`
`3.
`
`Venue is proper in this Court pursuant to section 47.011, Florida Statutes, et seq.,
`
`because the claims and causes of action accrued in Broward County, Florida, where Baer’s was
`
`injured and faces irreparable injury if Comcast is not enjoined.
`
`PARTIES
`
`4.
`
`Baer’s is a Florida corporation, organized pursuant to the laws of Florida, with its
`
`principal place of business at 1589 Northwest 12th Avenue, Pompano Beach, FL 33069.
`
`5.
`
`Comcast is a Delaware company, organized pursuant to the laws of Delaware, with
`
`its principal place of business at 1701 John F. Kennedy Blvd., Philadelphia, PA 19103. Comcast
`
`does business in Florida.
`
`It
`
`is subject
`
`to this Court’s jurisdiction pursuant
`
`to section
`
`48.193(1)(a)(1), Florida Statutes, because it operates, conducts, engages in, or carries on a business
`
`or business venture in this state or has an office or agency in this state; pursuant to section
`
`48.193(1)(a)(2), Florida Statutes, because it committed a tortious act within this state; pursuant to
`
`section 48.193(1)(a)(6), Florida Statutes, because it caused injury to persons or property within
`
`this state arising out of an act or omission outside this state when, at or about the time of the injury,
`
`it was engaged in solicitation or service activities within this state; and pursuant to section
`
`48.193(1)(a)(7), Florida Statutes, because it breached a contract in this state by failing to perform
`
`acts required by the contract to be performed in this state.
`
`FACTUAL BACKGROUND
`
`6.
`
`Founded in 1945, Baer’s is a family-owned company that is one of Florida’s largest
`
`furniture retailers. It has 16 showrooms, stretching from Pinecrest in South Florida to Casselberry
`
`in Central Florida.
`
`
`
`7.
`
`Baer’s offers a vast selection of name brand furniture at competitive prices. Its
`
`business model is highly dependent on advertising.
`
`In particular, it is dependent on television
`
`advertising in the geographical areas where it does business.
`
`8.
`
`In the last calendar year, Baer’s spent $9.5 million in advertising, with a substantial
`
`portion of that amount spent on television advertising.
`
`9.
`
`Comcast is one of the largest communications companies in the United States.
`
`Among its services, it offers cable television programming and advertising.
`
`10.
`
`Effectv, formerly known as Comcast Spotlight, is the advertising sales division of
`
`Comcast.
`
`It promotes itself as “help[ing] local, regional and national advertisers grow their
`
`business.”
`
`11.
`
`Comcast, through Effectv, touts to advertisers such as Baer’s that it “appl[ies] data
`
`to television advertising in new ways to help each business reach its target customers” and “use[s]
`
`advanced analytics to prove the impact of a campaign on business results.” Comcast did not keep
`
`to those representations in its dealings with Baer’s.
`
`12.
`
`Baer’s has been an advertiser on Comcast since at least 2002. During that time,
`
`Baer’s has paid Comcast approximately $14.8 million.
`
`13.
`
`Baer’s has looked to Comcast to advertise in four of its most important markets:
`
`Miami/Ft. Lauderdale, West Palm Beach, Sarasota, and Naples/Ft. Myers. Each of those areas
`
`comprises a “Designated Market Area” (“DMA”) for purposes of television advertising. Comcast
`
`has been a critical channel for Baer’s advertising in those DMAs.
`
`14.
`
`For example, Comcast claims that in the Miami DMA it has a 64% audience share.
`
`The audience share claimed by Comcast for the West Palm Beach DMA is even greater, at 71%.
`
`And the market share for the Naples/Ft. Myers market is higher than that, at 72%. Comcast’s
`
`
`
`audience reach is even greater when its programming and advertising on Dish Network is taken
`
`into account.
`
`15.
`
`Baer’s contracted with Comcast on a “ratings points” basis. “Ratings points” is a
`
`metric for the number of viewers for a particular television show as a portion of the market. That
`
`means that the amount Comcast would charge Baer’s for running its commercials was based on
`
`the number of “ratings points” (or viewers) for the particular show during which the Baer’s
`
`commercial would be shown.
`
`16.
`
`Toward the end of each year during the time period relevant to this action, Baer’s
`
`and Comcast would negotiate a contract for the following year. For example, the contract for the
`
`year 2017 was negotiated and agreed to in late 2016. Baer’s would typically approve a particular
`
`schedule, which would then be in effect for the remainder of the year.
`
`17.
`
`As part of each contract, Baer’s and Comcast would reach agreement on the
`
`channels on which the Baer’s commercials would be shown during the contract period, along with
`
`the days of the week and time of day that the commercials would be run.
`
`18.
`
`In order to induce Baer’s to enter into each contract, Comcast represented to Baer’s
`
`the number of “ratings points” for each day and time period when a Baer’s commercial was to be
`
`shown. Because the contract covered future showing of commercials, Comcast represented to
`
`Baer’s that the “ratings points” attributed to a particular time slot or show were based on reliable,
`
`good faith estimates prepared by research companies.
`
`19.
`
`Once the parties reached agreement on the terms for the upcoming year, Comcast
`
`would present Baer’s with a schedule for the first week of the contract, showing the agreed upon
`
`time and date slots for the commercials and the represented estimates of viewership, or “ratings
`
`
`
`points,” during those dates and times. Baer’s would approve the schedule and, for the remainder
`
`of the year, Comcast would provide Baer’s with weekly iterations of the agreed upon schedule.
`
`20.
`
`In the Fall of 20 1 8, during the midterm national elections period, Baer’s questioned
`
`whether Comcast was running Baer’s commercials in accordance with its agreement with
`
`Comcast. The reason Baer’s questioned this was because, during the 2018 election season, many
`
`of the spots for its commercials were being used to run political advertisements. Yet, Comcast
`
`was billing Baer’s as if all its advertisements were being run in accordance with the agreement for
`
`20 1 8.
`
`21.
`
`The fact that not all of its advertisements were running at the agreed upon date and
`
`time slots during that period was not a surprise to Baer’s.
`
`It is often a practice during national
`
`election periods for political advertisements to bump non-political advertising. But that does not
`
`mean that an advertiser, such as Baer’s, would lose the money it had paid to have its advertisements
`
`run.
`
`22.
`
`The industry practice, which Comcast purports to follow, is that if advertisements
`
`are bumped, they would be run on other times and dates. The key to this practice is that the
`
`advertisements would be shown at other comparable time and date slots. The advertiser would
`
`thus still receive the benefit of the agreement by way of having its advertisements run during other
`
`programming with the same “ratings points.” In this way, an advertiser such as Baer’s would still
`
`have its advertisements shown to the same size audience for which it had contracted. Conversely,
`
`if the broadcaster does not so compensate with replacement advertising, it would not charge the
`
`advertiser as if it the bumped commercial had been run in accordance with the agreement.
`
`23.
`
`Upon investigation, Baer’s realized that Comcast was not running its bumped
`
`advertisements on times and dates and on channels that would net the number of “ratings points”
`
`
`
`for which it had contracted. Yet, Comcast charged Baer’s the same amount as if it had run the
`
`advertisements during programming having the same audience level, or “ratings points,” as
`
`provided by the parties’ agreement.
`
`24.
`
`Baer’s confronted Comcast with this information and requested that Comcast
`
`provide it with a “post” of the “ratings points” for the programming during which Baer’s
`
`advertisements had actually been run in 2018. A “post” shows the “ratings points” for the shows
`
`on which an advertisement is broadcast. Comcast did so.
`
`25.
`
`The post showed that Comcast had failed miserably to perform its contractual
`
`obligations to Baer’s in the Miami/Ft. Lauderdale and West Palm Beach DMAs. For example, in
`
`the Miami/Ft. Lauderdale DMA Comcast had run Baer’s advertisements during programming
`
`having only 37% of the contracted-for “ratings points.” The result was similar for the West Palm
`
`Beach DMA, where the post showed that Baer’s advertisements had been run during programming
`
`having only 42% of the contracted-for “ratings points.”
`
`26.
`
`Faced with the evidence of its breach of the agreements, Comcast agreed to “make
`
`up points for Baer’s from 2018,” meaning that it would run free-of-charge advertisements for
`
`Baer’s sufficient to make up the shortfall in “ratings points” for the year 2018 in the Miami/Ft.
`
`Lauderdale and West Palm Beach DMAs. (Attached as Exhibit A is the email exchange between
`
`Baer’s and Comcast setting for the agreement.)
`
`27.
`
`In view of the Comcast’s failure to run the advertisements in 2018 accordance with
`
`its agreement with Baer’s, Baer’s requested that Comcast also provide it with a “post” of the
`
`“ratings points” for 2017 in the Miami/Ft. Lauderdale and West Palm Beach DMAs. Comcast did
`
`so, and the results were similar to those for 2018. Comcast had shorted Baer’s for more than half
`
`of the “ratings points” required under the 2017 agreement, as well.
`
`
`
`28.
`
`Comcast has admitted that it breached its 2017 and 2018 agreements with Baer’s.
`
`In fact, it has conceded that “During the years of 20 1 7 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.” (Attached as Exhibit B is
`
`the memorandum containing this communication.)
`
`29.
`
`Comcast advised Baer’s that “To say that we are disappointed in our shortfall is an
`
`understatement.” Comcast advised Baer’s it would not “shirk” responsibility for short-changing
`
`Baer’s on advertisements for the years 2017 and 2018. Comcast confirmed its agreement to make
`
`up during 2019 for both the 2017 and 2018 shortfalls in “ratings points.” (Attached as Exhibit C
`
`is the email exchange containing this communication.)
`
`30.
`
`Comcast further agreed that it would “be coding [Baer’s make up] spots as ‘VIP’
`
`so that they have a much greater chance of clearing in the networks you covet, thus garnering
`
`higher ratings [i.e., “points”] and helping us get to a zero sum total much faster.” (Attached as
`
`Exhibit D is the email exchange containing this communication.) In other words, Comcast agreed
`
`it would prioritize running Baer’s advertisements so that the “ratings points” shortfall could be
`
`made up more quickly.
`
`31.
`
`Despite its admission that it had breached the parties’ advertising agreements for
`
`2017 and 2018 and its agreement to make up the “ratings points” shortfalls free of charge to Baer’s,
`
`on September 16, 2019, Comcast advised Baer’s that “Specific to the request from Baer’s Furniture
`
`regarding under delivery from prior schedules, Spotlight [Comcast] will not accept, run, or steward
`
`previously executed campaigns.”
`
`(Attached as Exhibit E is the document containing this
`
`communication.) Upon information and belief, Comcast made up only approximately 1/3 of the
`
`
`
`shortfall in “ratings points” it had agreed with Baer’s it would run free of charge and on a VIP
`
`basis.
`
`32.
`
`Comcast later confirmed to Baer’s that, as set out in its September 16, 2019,
`
`communication, it was refusing to perform its agreement to make up the “ratings points” shortfall
`
`for the years 2017 and 2018.
`
`33.
`
`Baer’s also entered into agreements with Comcast to run its advertisements in the
`
`Sarasota DMA. Like the agreements for the Miami/Ft. Lauderdale and West Palm Beach DMAs,
`
`the agreement for the Sarasota DMA was predicated on “rating points,” meaning that Comcast was
`
`obligated to run Baer’s advertisements during television programming corresponding with “ratings
`
`points” specified in the agreement.
`
`34.
`
`In the course of its discussions with Comcast concerning the “ratings points”
`
`shortfalls for the Miami/Ft. Lauderdale and West Palm Beach DMAs, Baer’s discovered that
`
`Comcast never subscribed to the “ratings points” book for the Sarasota DMA. That means that
`
`Comcast could not have complied with its agreement with respect to “ratings points” in the
`
`Sarasota DMA. Comcast knowingly misrepresented to Baer’s that
`
`it was charging it for
`
`advertisements based on “ratings points,” since it did not have the capability to do so.
`
`w
`Breach of 2017 Miami/Fort Lauderdale DMA Agreement
`
`35.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`36.
`
`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
`
`2017 in the Miami/Fort Lauderdale DMA during television programming having designated
`
`“ratings points.” (Plaintiff does not have a copy of this agreement in its possession, but believes
`
`that Comcast does.)
`
`37.
`
`Comcast materially breached the agreement.
`
`
`
`38.
`
`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
`
`w
`Breach of 2018 Miami/Fort Lauderdale DMA Agreement
`
`39.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`40.
`
`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
`
`2018 in the Miami/Fort Lauderdale DMA during television programming having designated
`
`“ratings points.” (Attached as Exhibit F is the 2018 agreement for the Miami/Ft. Lauderdale
`
`DMA.)
`
`41.
`
`Comcast materially breached the agreement.
`
`42.
`
`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
`
`w
`Breach of 2017 West Palm Beach DMA Agreement
`
`43.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`44.
`
`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
`
`2017 in the West Palm Beach DMA during television programming having designated “ratings
`
`points.” (Attached as Exhibit G is the 2017 agreement for the West Palm Beach DMA.)
`
`45.
`
`Comcast materially breached the agreement.
`
`46.
`
`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
`
`COUNT IV
`
`Breach of 2018 West Palm Beach DMA Agreement
`
`47.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`48.
`
`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in
`
`2018 in the West Palm Beach DMA during television programming having designated “ratings
`
`points.” (Attached as Exhibit H is the 2018 agreement for the West Palm Beach DMA.)
`
`
`
`49.
`
`Comcast materially breached the agreement.
`
`50.
`
`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
`
`COUNT V
`
`Breach of Shortfall Agreement
`
`51.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`52.
`
`Baer’s entered into an agreement with Comcast to run Baer’s advertisements in the
`
`Miami/Ft. Lauderdale and Palm Beach DMAs in 2019 on a VIP basis during television
`
`programming having designated “ratings points” in order to make up for the “shortfall” in its
`
`running of Baer’s advertising in those DMAs in 2017 and 2018. (Copies of documents confirming
`
`that agreement are attached as Exhibits B, C, and D.)
`
`5 3.
`
`Comcast materially breached the agreement.
`
`54.
`
`As a result of Comcast’s breach of the agreement, Baer’s has suffered damages.
`
`w
`Fraud—Miami/Ft. Lauderdale and Palm Beach Agreements
`
`55.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`56.
`
`Comcast represented to Baer’s that its estimates of “ratings points” upon which its
`
`advertisements would be shown were based on reliable data of the “ratings points” for the dates
`
`and times upon which the advertisements would be run.
`
`57.
`
`Comcast representations were false because the estimates as to “ratings points”
`
`were not based on reliable data.
`
`5 8.
`
`Comcast knew the representation was false because it knew that the estimates of
`
`“ratings points” were not based upon reliable data.
`
`59.
`
`Baer’s justifiably relied upon Comcast’s false representations in entering into the
`
`2017 and 2018 agreements.
`
`10
`
`
`
`60.
`
`As a result of its justifiable reliance on the false representations, Baer’s has been
`
`damaged.
`
`w
`Fraud—Shortfall Agreement
`
`61.
`
`Baer’s realleges paragraphs 1 through 32, above.
`
`62.
`
`Comcast represented to Baer’s that it would run Baer’s advertisements in the
`
`Miami/Ft. Lauderdale and Palm Beach DMAs in 2019 on a VIP basis during television
`
`programming having designated “ratings points” in order to make up for the “shortfall” in its
`
`running of Baer’s advertising in those DMAs in 2017 and 2018.
`
`63.
`
`Comcast’s representation was false because at the time it was made Comcast had
`
`no intention of performing in accordance with the representation.
`
`64.
`
`Baer’s justifiably relied upon Comcast’s false representation.
`
`65.
`
`As a result of the reliance on the false representation, Baer’s has been damaged.
`
`w
`Fraud—Sarasota Agreement
`
`66.
`
`Baer’s realleges paragraphs 1 through 34, above.
`
`67.
`
`Throughout its relationship with Baer’s, Comcast represented to Baer’s that its
`
`advertisements in the Sarasota DMA would be shown at times and dates and during television
`
`shows with an estimated “ratings points.”
`
`68.
`
`Pursuant to that representation, Comcast charged Baer’s for advertising in the
`
`Sarasota DMA on a “Cost Per Point” basis.
`
`(Attached as Exhibit I and J, respectively, are the
`
`Agreement for Sarasota DMA for the year 2013 and for the year 2018, both showing a charge
`
`based on “CPP,” or “Cost Per Point” basis.)
`
`69.
`
`Comcast’s representations were false.
`
`11
`
`
`
`70.
`
`Comcast knew the representations were false at the time they were made because
`
`Comcast had no access to the “ratings points” book and had no intention of acquiring access to the
`
`“ratings points” book when it made the representations.
`
`71.
`
`Baer’s justifiably relied upon Comcast’s false representations.
`
`72.
`
`As a result of the reliance on the false representations, Baer’s has been damaged.
`
`w
`Eguitable Accounting
`
`73.
`
`Baer’s realleges paragraphs 1 through 34, above.
`
`74.
`
`Baer’s has contracted with Comcast since 2002.
`
`75.
`
`Baer’s contractual relationship with Comcast involves extensive and complicated
`
`accounts.
`
`76.
`
`Comcast owed a duty to Baer’s to run Baer’s advertisements in compliance with its
`
`agreements with Baer’s.
`
`77.
`
`Comcast is uniquely in possession of information concerning the dates, times, and
`
`shows where it broadcast Baer’s advertisements.
`
`78.
`
`Baer’s is entitled to an accounting of the Baer’s advertisements runs by Comcast
`
`pursuant to the various agreements between Baer’s and Comcast.
`
`79.
`
`Baer’s seeks an accounting for the Miami/Ft. Lauderdale, West Palm Beach, and
`
`Sarasota DMAs for the time period from 2013 through 2019.
`
`80.
`
`Baer’s lacks an adequate remedy at law.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Baer’s respectfully demands judgment in its favor and against Comcast,
`
`as follows:
`
`12
`
`
`
`a.
`
`Judgment for compensatory damages;
`
`b.
`
`Judgment for specific performance;
`
`c.
`
`Judgment for an equitable accounting;
`
`d.
`
`Judgment for costs; and
`
`e. Any further relief the Court deems proper.
`
`Dated: August 3; 2020
`
`Respectfully submitted;
`
`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
`
`
`
`
`
`
`
`EXHIBIT A
`
`
`
`
`
`
`
`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
`
`season as well.
`
`Sent from my iPhone w/ tYpOs and unintended Siri autocorrections
`
`> On Dec 15, 2018, at 8:00 AM, Jerry I. Baer <jbaer@baers.com> wrote:
`
`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
`I-—-—-—--—m-
`___—__-—--fi-_-za
`
`“mm—mam
`
`_—-—--_--zl_-
`___—___”:m-I
`
`——--—--—-—-
`___—___-
`——-——--—-—-
`“null-“___"
`___—m-
`“___-m-
`_-lE——-mm
`l__-_---—IE-EIE
`__-———--_-_--
`l——-—--——--—-
`—_----—-_--
`l——--——-—-—-lm
`
`___-_m_m
`_--—-—-—-—--
`
`
`
`
`
`
`
`——--—-—--_m
`
`“mm-m
`
`
`
`—_—-—_--—mmm
`
`
`_--—--—-_-
`
`
`——--—---m-_-
`
`
`m-
`
`
`_m---_16
`
`
`_-IEI-_--—-—IEI
`
`
`
`
`
`
`mmm— as
`
`
`
`
`SU 83-21;, ___-m-_ s
`
`s2s-oo-_-—m-—-_ 27
`mum