MAM

NDTV argues for hearing of its petition in New York

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MUMBAI: New Delhi Television Ltd (NDTV) has defended its decision to file a case against television ratings providers Nielsen and Kantar in New York as it involves the misuse, manipulation, and corruption of the Nielsen Process, which originates and is controlled in the US.

In its reply to pleas for dismissal of its petition in the New York Supreme Court on grounds of jurisdiction, the Indian news broadcaster has argued that its case against the TAM owners should not be dismissed under the doctrine of forum non conveniens because NDTV has chosen to sue these Defendants in Nielsen‘s home forum in New York.

According NDTV, the defendants mis-characterise this case as a dispute between foreign citizens, arguing that the "real parties in interest" are all Indian residents. "Defendants are wrong. NDTV specifically chose to litigate in New York because it is the Nielsen Defendants‘ home and where the Nielsen Process is controlled. Choice of a defendant‘s home forum is an important factor to be considered," NDTV said.

The company said that the defendants‘ argument is based on the false premise that "the gravamen (grievance) of this lawsuit is about the subscription that NDTV purchased from TAM." NDTV‘s contractual relationship with TAM consists of simple sales order forms through which NDTV purchases TAM data reports.

NDTV stresses that the claims are not about late payments or the failure to deliver purchased reports. "The claims are about Defendants‘ negligence, promises, acts and omissions relating to the dissemination of the corrupted, manipulated data in the marketplace, regardless of whether NDTV purchases it or not.Advertisers rely on that data, not NDTV. NDTV simply buys it to monitor the information that advertisers receive, whether corrupt or not."

Also, the defendants have asserted the stunning proposition that this Action has "no nexus" to New York. NDTV said that the amended complaint, however, is premised on the misuse, manipulation, and corruption of the Nielsen Process, which Defendants concede is controlled in New York. Consequentially, numerous acts at the center of this lawsuit occurred in New York. Defendants‘ 2012 investigation was run by Nielsen in New York.

Nielsen conducted conference calls in New York. It briefed management in New York. And Nielsen seized key evidence; brought it to the United States; and hired third parties to analyse it. That seizure simultaneously demonstrates Nielsen‘s control and the New York nexus.

Also, the Nielsen Defendants licensed and provided the Nielsen Process to TAM from New York. Because TAM pays the Nielsen Defendants in New York for use of the Nielsen Process, the Nielsen Defendants receive funds in New York that directly result from their own negligence, fraud, and failure to honor binding promises.

Emails and other communications regarding the misuse of the Nielsen Process were exchanged between NDTV and representatives of the Nielsen Defendants in New York. For the record, on January 31, 2012, Nielsen‘s Farshad Family, who represents himself as based in New York, wrote to NDTV‘s Vikram Chandra to schedule an â€?interim progress review; On February 29, 2012, Nielsen‘s Farshad Family emailed NDTV‘s I.P. Bajpai and Vikram Chandra to set up a meeting where Nielsen would explain the result of its internal investigation. Similarly, emails and other communications regarding the Investigation were exchanged between the Kantar Group‘s executives “ including Kantar Group CEO Eric Salama and the Nielsen Defendants in New York.

NDTV said that the defendants do not deny that these acts occurred in New York. Instead, they argue that certain meetings between their representatives and NDTV occurred in India.

Defendants argue that the pertinent documents and witness are almost entirely in India, such that litigating in New York would result in significant burden. However, NDTV emphasises that while some witnesses and evidence are located in India and the United Kingdom, the overwhelming majority of documents reside in the United States (likely New York) because this case concerns the control of the Nielsen Process and Defendants‘ U.S.-based investigation.

NDTV is not seeking to prove the underlying acts of TAM, but rather that Defendants intervened in this matter; conducted an investigation; made promises to NDTV; and then failed to live up to those promises, while continuing to profit nonetheless.

Nielsen argues that there are at least 27 witnesses who "appear to live in India." According to NDTV, Nielsen ignores that at least thirteen of these witnesses are current or former employees of NDTV, which has chosen to bring this action in New York. "An additional nine witnesses are employees of Defendants or their affiliates, two of whom, Farshad Family and Eric Salama are incorrectly identified as living in India. Three witnesses are employed by TAM, and given Defendants‘ authority to seize TAM property and take it to the United States, these witnesses are presumably accessible to Defendants. As a result, there are (at most) two witnesses inaccessible to Defendants (neither of which is identified by name) in Nielsen‘s list of purported witnesses residing in India."

NDTV said that although the Kantar Defendants are not headquartered in New York, they are not headquartered in India either. "It is more convenient to bring witnesses from the United Kingdom to New York than to India. Any hardship to either plaintiffs or defendants in bringing potential witnesses into New York would be minimal since they are both large multinational corporations with ample resources. In fact, Martin Sorell, the CEO of WPP, uses New York as a "hub" and maintains a personal assistant in New York," NDTV added.

The Indian broadcasting company said that New York is highly sophisticated and fully capable of handling this matter. Moreover, New York has an interest in preventing its corporate citizens from conspiring with foreign companies like the WPP and the Kantar Group to perpetrate a massive fraud, the proceeds of which were received in New York.

Defendants maintain that India has a strong interest and the ability to adjudicate NDTV‘s claims. India, however, as per NDTV is not an adequate forum for this case. The lack of an adequate forum outside of New York "is a most important factor to be considered" in a forum non conveniens analysis.

Indian Courts do not permit pre-trial discovery from non-parties. Accordingly, if this case were in India, neither NDTV nor Defendants could obtain discovery from third-party witnesses like Nielsen‘s U.S.-based forensics experts. Also, the Indian judicial system is fraught with significant delays and NDTV seeks injunctive relief against the Nielsen Defendants.

"This action should not be dismissed for forum non conveniens. NDTV chose to sue these Defendants in New York because it is where the Nielsen Defendants reside. The claims have a strong connection to New York, and relevant documents and witnesses are here. It is not clear that NDTV would be able to obtain effective relief against Defendants in India. Therefore, there is no adequate alternative forum. The case must remain in New York," NDTV concluded.

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