On Monday in Florida’s Seventeenth Circuit Court in Broward County, Comcast Cable Communications was sued by Baer’s Furniture Co., a furniture retailer, for fraud and breach of contract in regards to the advertising program it agreed to run for Baer’s Furniture, but allegedly failed to complete.
Baer’s Furniture alleged that Comcast induced it to pay for television advertisements in Florida “by misrepresenting the expected viewership of the television programs during which the advertisements would be shown.” Furthermore, the plaintiff alleged that Comcast also “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.” Consequently, Baer’s Furniture claimed it “paid millions of dollars to Comcast, but received only a fraction of its bargain.”
Baer’s contract with Comcast was based on “ratings points,” which is “a metric for the number of viewers for a particular television show as a portion of the market.” Thus, Baer’s Furniture was charged proportionally for the ratings points of a particular program and time slot. The advertising contract included the channels, time, and day that the advertisements would run during the contract period.
In Fall 2018, during the midterm elections, Baer’s Furniture questioned if Comcast was running its commercials because “during the 2018 election season, many of the spots for its commercials were being used to run political advertisements,” however, “Comcast was billing Baer’s as if all its advertisements were being run in accordance with the agreement for 2018.” Meanwhile, Baer’s Furniture stated that it was not a surprise that some of its advertising would be bumped during an election season, but that Baer’s Furniture should not have been billed as if all of its advertisements ran at their designated slot. Furthermore, if an advertisement is bumped it is supposed to be shown on a comparable time and date slot with comparable ratings points. “The advertiser would thus still receive the benefit if the agreement by way of having its advertisements run during other programming with the same ‘ratings points.’” However, Baer’s Furniture stated that it was not bumped to comparable ratings points slots, but was still charged for the original amount.
Baer’s claimed that Comcast agreed to run Baer’s Furniture’s advertisements free of charge “sufficient to make up the shortfall in ‘ratings points’ for the year 2018 in the Miami/Ft. Lauderdale and West Palm Beach DMAs.” Additionally, Baer’s wanted a post for the ratings points. Baer’s alleged that Comcast “shorted Baer’s for more than half of the ‘ratings points’ required under the 2017 agreement.” Furthermore, Baer’s stated that Comcast admitted to this breach of contract.
For 2019, Comcast promised Baer’s that it would make up these lost ratings points and would prioritize running Baer’s advertisements. However, Baer’s claimed that Comcast never ran the advertisements to compensate for the ratings points shortfalls. As a result, Baer’s stated that it was wrongfully charged for these amounts because Comcast failed to uphold its end of the agreement.
Comcast is accused of breach of contract and fraud for the various agreements with Baer’s Furniture. Another count against Comcast is equitable accounting. Baer’s Furniture has sought judgment for compensatory damages, specific performance, equitable accounting, costs and other relief.
Baer’s Furniture is represented by Boies Schiller Flexner LLP.
