WPP, Group firms file for dismissal of NDTV lawsuit against them

MUMBAI: Global communications conglomerate WPP Plc and its group companies have filed an application for dismissal of New Delhi Television Ltd‘s (NDTV) lawsuit against them in the New York Supreme Court over corruption in television ratings system in India.

Nielsen group companies and TAM Media Research are not party to the dismissal application.

Law firm Davis & Gilbert LLP has filed the dismissal application on behalf of WPP, Kantar Market Research Services Pvt Ltd, IMRB International, Cavendish Square Holding BV and J Walter Thompson.

NDTV filed its lawsuit on 26 July accusing 31 entities, including TAM, Nielsen, Kantar and their officials, of knowingly allowing continuation of manipulation of television viewership data in favour of broadcasters willing to pay bribes to its officials or representatives.

WPP owns half of TAM in India through its subsidiaries – Kantar and Cavendish, and the other half of TAM is owned by The Nielsen Company.

The title of the application filed by WPP group reads “Memorandum of Law In Support Of Moving Defendants’ Motion To Dismiss The Complaint In Its Entirety As Against Them”. WPP and its group companies are the moving defendants, which means defendants who have moved the application.

WPP has cited the following grounds for dismissal of the NDTV lawsuit:

  • The complaint must be dismissed for insufficient service on the moving defendants. It also said that the New York court lacks personal jurisdiction over Kantar India as it does not maintain an office in New York and neither does Kantar India do business in New York.

  • The dismissal petition says that the complaint must be dismissed on grounds of forum non coveniens. WPP argued that neither New Delhi TV nor the moving defendants are residents of New York and the situs of the transaction points to India as the only appropriate forum for this dispute. It stressed in its petition that India is an available, appropriate forum for this Indian dispute and added that action will impose a substantial burden on this New York court and defending this action in New York will impose a severe burden on moving defendants.

  • The media agency network also pointed out in the dismissal petition that NDTV has failed to allege facts sufficient to pierce the corporate veil. The motion explains, "The concept of piercing the corporate veil is a limitation on the accepted principles that a corporation exists independently of its owners, as a separate legal entity, that the owners are normally not liable for the debts of the corporation, and that it is perfectly legal to incorporate for the express purpose of limiting the liability of the corporate owners." It further explains that in order to depart from these accepted principles and pierce the corporate veil to hold the owners of a corporation liable for the corporation‘s conduct, a Plaintiff must allege facts establishing "(1) the owners exercised complete domination of the corporation in respect to the transaction attacked; and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiffs injury."

WPP has also claimed in the dismissal petition that each and every cause of action against Kantar India, WPP, Cavendish, JWT AND IMRB is not adequately pleaded and, therefore, must be dismissed.

The petition also points out that in the lawsuit filed by NDTV, many of the companies have been improperly named. “Kantar Market Research Services Pvt. Ltd. (improperly sued as Kantar Media Research Pvt. Ltd.) (“Kantar India”), IMRB International, a division of Hindustan Thompson Associates Private Limited (improperly sued as IMRB International) (“IMRB”), Cavendish Square Holding BV (“Cavendish”), J. Walter Thompson (although no such entity exists and no proper J. Walter Thompson entity has any connection to the facts alleged in the Complaint) (“JWT”) and WPP plc (“WPP”) (which also has no connection to the facts alleged in the Complaint) (collectively),” said the petition.

Before the filing of the dismissal application, WPP on 22 August started a war of words with NDTV through media statements. In the first statement WPP said, "In any event, there is no merit, whatsoever, in any of the claims made in the hypothetical Law Suit relating to the WPP Parties, nor do the courts of New York have any jurisdiction to hear any such claims."

TAM India and Nielsen have so far not reacted to the filing of the lawsuit by NDTV.

In its lawsuit, NDTV said after countless efforts to resolve with TAM the issue of corruptionin ratings system, for many years prior to 2012, to no avail, in January 2012, NDTV complained directly to David Calhoun, CEO and Chairman of the Board of Directors of Nielsen, about the serious defects in the Nielsen Process, as applied to the Indian market.

Following NDTV’s complaint in January 2012 to Calhoun, senior officials from Nielsen and Kantar attended several meetings with NDTV in January, February and April of 2012 and have made decisions as well as provided (which NDTV says have now known to be false) assurances to NDTV.

NDTV’s lawsuit said senior Kantar officials such as Eric Salama, CEO worldwide, and senior Nielsen officers such as Paul Donato, Global Head of Research and Measurement and Science, Robert Messemer, Global Head of Security and Piyush Mathur, President, India Region, have been directly and actively engaged in initiating and leading the investigations within TAM in India as well as from the US where Nielsen and Kantar have ordered forensic examinations of IT Systems of TAM officers.

Nielsen and Kantar personnel dominated these meetings, rendering all key decisions affecting TAM’s future course of conduct, and making it abundantly clear to NDTV that Nielsen and Kantar were in total control over TAM’s operations, the lawsuit pointed out.

It further stated that Nielsen entities such as the “The Nielsen Company” based in the United States and senior officers at Nielsen including the Global Head of Nielsen Research Services Paul Donato and Chief Security officer Robert Messemer have, on behalf of Nielsen, witnessed and in Messemer’s case, additionally provided contractual assurances to whistle blowers in India who provided evidence of manipulation and corruption within TAM in India.

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