MUMBAI: It is a full-blown battle with both NDTV and WPP reacting with vengeance against each other. NDTV’s (New Delhi Television Ltd) lawsuit in the Supreme Court of New York accusing Nielsen, Kantar, TAM and WPP of knowingly allowing manipulation of TV viewership ratings in India in favour of channels which bribe TAM officials is at the centre of this acrimonious battle.
On Saturday, NDTV revealed that it had received a mail from Kantar CEO Eric Salama on 8 August wherein he suggested halt to litigation. That was NDTV’s retaliation against London-based WPP CEO Martin Sorrell divulging to Indian media that the news broadcaster had proposed a settlement.
The disclosure that Kantar CEO had written a mail to NDTV made WPP furious. WPP decided to strike back and disclosed the content of the mail sent by NDTV’s Vikram Chandra on 27 July, the day the lawsuit was filed, to Salama and also what exactly the Kantar CEO said in his 8 August mail. The WPP statement was email to journalists in India late Saturday night.
This is what Vikram Chandra wrote to Eric Salama on 27 July 2012, according to WPP:
"As you may know, our lawyers wrote to your representatives on June 4, 2012 proposing we meet in relation to disputes personally known to you since at least January 2012. ....Accordingly, our lawyers have now filed a Complaint, attached hereto. If we are compelled to litigate, each of our companies will spend tens of millions of dollars in legal fees. Before we proceed with costly litigation, I write to ask if you would like to meet so we can attempt in good faith to resolve our differences. We can meet in India, London or the US, along with our lawyers.”
WPP says Kantar CEO Salama’s reply on 8 August was:
"I am not copying anyone else on this note and it goes without saying that we will contest any papers which are served on us as we think that the allegations are without merit and we do not accept the damage which you allege. As we discussed in Delhi when we met, we have examined the evidence, investigated further and have proceeded to address the issue in the way we discussed. If you are prepared to call a halt to the proceedings, a meeting may be possible. If not, then at the moment I cannot see how a meeting will assist us. Let me know if you want to approach this issue pragmatically and draw a line under the litigation now, rather than spending money on lawyers to fight a long and costly forum dispute."
When contacted, the NDTV spokesperson said no immediate comment was available and it would require legal consultations before any response statement was made public.
The mail NDTV‘s Chandra wrote to Kantar CEO was basically to communicate the filing of the lawsuit in the US a day before. It was a long email and in the process NDTV expressed its willingness to meet and talk even though it had taken legal recourse to settle issues it had against TAM ratings. The next communication was by Kantar CEO on 8 August, where he stated that a meeting to discuss the issues was possible only if NDTV was "prepared to call a halt to the (legal) proceedings".
Kantar CEO’s response was that he was willing to meet and talk, if NDTV withdrew the lawsuit. Kantar CEO’s reply also included an admission of the fact that the issues raised by NDTV had substance. Kantar CEO writing: “As we discussed in Delhi when we met, we have examined the evidence, investigated further and have proceeded to address the issue in the way we discussed.”
TAM Media Research is an audience measurement (or television ratings) service provider in India. It has a monopoly with no rival agency providing the service. WPP is a global communications agency and owns half of TAM through its subsidiaries Kantar and Cavendish Square Holdings. The other half of TAM is owned by The Nielsen Company.
WPP, annoyed at what it cited as trial by media over the NDTV lawsuit, started commenting on NDTV’s raising of questions about the authenticity of TAM television ratings. Martin Sorrell, the celebrated CEO of WPP, even spoke to Indian media against NDTV and became TAM’s face of the fight against NDTV. The other defendants named in the lawsuit have remained silent not willing to react in public.
Reproduced below are the six points NDTV raised on Saturday and below each of them are WPP’s responses:
NDTV: Sir Martin Sorrell knows better than all of us that the first rule of any PR campaign is never to get your facts wrong. Hence we can only conclude that Sir Martin Sorrell has been misled by his team into making several incorrect statements. Let us list some of the errors.
But first, we request Sir Martin not to take India lightly. We request him to clean up his ratings operation in our country and to refrain from using his global PR clout to perpetuate corruption in his India ratings operation; to respect our country and the serious issues raised in our very real lawsuit (Sir Martin referring to it as "hypothetical" was bizarre) and take real steps to correct them. We, like all other Indian broadcasters, are happy to work together with Sir Martin to establish an honest, reliable and credible institution to measure ratings in India. This has not happened, despite repeated requests by us and promises made by Kantar and Nielsen.
The first error: Sir Martin has alleged that NDTV‘s lawyers reached out to his lawyers to ask for a settlement. This is completely untrue. There was no such approach after the Complaint was filed and communicated. In fact, it was his own CEO, Eric Salama, the CEO of Kantar, a WPP company, who sent a confidential mail to NDTV on the 8th of August, suggesting a meeting if NDTV would "halt litigation". A further mail exchange followed. NDTV has respected Mr Salama‘s confidentiality by not making this public till now- but Sir Martin would do well to check with his own senior executives before making baseless charges.
WPP’s Response:
The possibility of settlement meetings was raised by NDTV and no such meeting has been agreed, given NDTV‘s conduct. Vikram Chandra wrote to Eric Salama on 27 July 2012 to say: "As you may know, our lawyers wrote to your representatives on June 4, 2012 proposing we meet in relation to disputes personally known to you since at least January 2012. ....Accordingly, our lawyers have now filed a Complaint, attached hereto. If we are compelled to litigate, each of our companies will spend tens of millions of dollars in legal fees. Before we proceed with costly litigation, I write to ask if you would like to meet so we can attempt in good faith to resolve our differences. We can meet in India, London or the US, along with our lawyers. On 21 August his lawyers they said they had "put service on hold since Eric had told Vikram that there might be a meeting to try to resolve the case."
In fact Salama‘s reply was:
"I am not copying anyone else on this note and it goes without saying that we will contest any papers which are served on us as we think that the allegations are without merit and we do not accept the damage which you allege. As we discussed in Delhi when we met, we have examined the evidence, investigated further and have proceeded to address the issue in the way we discussed. If you are prepared to call a halt to the proceedings, a meeting may be possible. If not, then at the moment I cannot see how a meeting will assist us. Let me know if you want to approach this issue pragmatically and draw a line under the litigation now, rather than spending money on lawyers to fight a long and costly forum dispute."
NDTV: The second error: The biggest accusation against Sir Martin‘s TAM rating system in India has come from Nielsen‘s own global head of security, Mr. Robert Messemer, not just from Indian broadcasters and NDTV. Mr. Messemer, formerly of the FBI, in a meeting in Delhi on 11th April, in front of two dozen people (including the CEO of Kantar), called Sir Martin‘s TAM India operations the most corrupt in the world -- and he has been to many, many countries to fight fires for Nielsen. Sir Martin needs to check his facts with Mr. Messemer or would he perhaps threaten to sue him for defamation?
WPP’s Response:
This will be dealt with, presumably by Nielsen, in the proceedings. We are not going to engage in a trial by media, as we have repeatedly said. We are more than happy for this to be dealt with in the proper courts - in India - at which the evidence can be heard properly.
NDTV: The third error: Sir Martin seems to have finally discovered that this is not a "hypothetical" lawsuit. It is available on the website of the Supreme Court of New York for his team to read if Sir Martin is busy. Strangely, Sir Martin contradicts himself by now applying to the New York court for dismissal of the real lawsuit, using a plea based on technicalities of jurisdiction. Sir Martin and his lawyers (presumably) are not refuting any facts; they are merely using legalistic technical grounds to challenge NDTV. Our request is for Sir Martin and his team to argue the substantive factual merits of the case, and demonstrate a desire to stop the bribery and corruption.
As an aside, Sir Martin must know that his sudden outbursts have done even more to prove that jurisdiction is indeed in the US and not in India, as Sir Martin has openly acknowledged how deeply involved he and thus Nielsen ( his partner) are, in Indian TAM viewership ratings operations.
WPP’s Response:
It is hypothetical in that it may have been issued but there has no meaningful attempt to serve the lawsuit. Our view remains that this is an inappropriate "lawsuit" to issue. Its purpose is to provoke a settlement, not a real airing of the facts, as can be seen above . Our dismissal application, as NDTV and their lawyers know, is based not solely on jurisdiction but on a lack of a proper claim. To the extent there is a claim we will be delighted to have it dealt with by the proper court.
We don‘t understand the aside, in any respect. We do not see how Sir Martin‘s statements on this case, which were not, for clarity, made from within the United States, confer any jurisdiction on the New York courts.
NDTV: The fourth error: No amount of maliciously false and defamatory statements will work against our lawyers. Sir Martin‘s 10 billion pound global operations - for which we normally have great admiration - may indeed be able to hire the biggest and most famous legal names, but Sir Martin should know that the truth wins in the end - not lawyers. We leave it to our lawyers to respond to the allegations made against them.
We may not have a 10 billion pund empire backing us, but WPP should realize that a court case is fought on the merits. We urge them to read the 194 page lawsuit, which contains indisputable facts, and respond to it on the factual merits, not with personal attacks.
WPP’s Response:
We do not understand how any comment about NDTV’s lawyers is defamatory or malicious. We will be happy to deal with this in due course.
NDTV: The fifth error: Sir Martin keeps referring to NDTV‘s low market cap (vs. his 10 billion dollars). Size matters? We would like to point out that it is indeed near impossible for an honest Indian media company to function in the dishonest environment his company has helped create in India. If Sir Martin had a similar corrupt system in the UK or US, he wouldn‘t be where he is at the moment. Yes, if NDTV‘s true ratings were reflected as 62% (see attached evidence for this) rather than TAM‘s corrupted 25%, the impact on NDTV‘s revenues and market cap would be hugely significant. Sir Martin, or rather his team, knows that too. The details can be found in our (non-hypothetical) lawsuit.
WPP’s Response:
We do not think it is right, or fair, for NDTV to blame its poor financial performance on TAM data. Again, we will be happy to deal with this, at the appropriate time, in the correct forum.
NDTV: The sixth error: Sir Martin said "We will do everything to improve the system but not with a gun to our head" In fact, Sir Martin Sorrell was personally informed about all the problems with TAM ratings at a meeting at The Oberoi Hotel in Gurgaon in August 2011, in the presence of a large number of media journalists and eminent people. That was a year ago, and there was no "gun to the head". Why was nothing done?
Finally, we would like to thank Sir Martin for respecting NDTV‘s editorial position. We are a fiercely independent Indian news operation and proud to be a leader in India. Sir Martin Sorrell has appeared on many occasions on our channels, which clearly shows a mutual respect (and perhaps an indicator that he actually recognizes that NDTV is larger than his TAM ratings suggest).
WPP’s Response:
As NDTV knows, very well, there has been a continuous process of improvements and investments by TAM, in the TAM process. It is not at all true to say "nothing was done".
The WPP statement concluded giving a background on WPP’s presence in India. It said India is one of WPP‘s fastest growth markets, with revenues of approximately $500 million including associates. The Group collectively employs around 12,000 people.
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