FILED: NEW YORK COUNTY CLERK 05/15/2013 INDEX NO /2012 NYSCEF DOC. NO. 145 RECEIVED NYSCEF: 05/15/2013

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1 FILED: NEW YORK COUNTY CLERK 0// INDEX NO. / NYSCEF DOC. NO. RECEIVED NYSCEF: 0//

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10 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART X NEW DELHI TELEVISION LIMITED, Plaintiff INDEX NUMBER: / -against- NIELSEN HOLDINGS N.V., THE NIELSON COMPANY(US), LLC., AC NIELSEN CORPORATION, AC NIELSEN COMPANY, LLC, WPP PLC, and KANTAR GROUP, LTD., Defendants X BEFORE: APPEARANCES: 0 Centre Street New York, New York 000 March, HONORABLE: 0. Peter Sherwood, JSC Pepper Hamilton, LLP Attorneys for Plaintiff 000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 0 By: Jeremy Heep, Esq. Frank H. Griffin, IV, Esq. Sabharwal & Finkel, LLC Attorneys for Plaintiff 0 Fifth Avenue, Suite 00 New York, New York 0 By: Rohit Sabharwal, Esq. Delores Hilliard Official Court Reporter - OFFICIAL COURT REPORTER

11 APPEARANCES CONTINUED: Davis & Gilbert, LLP Attorneys for Defendants, WPP PLC and Kantar Group, LTD 0 Broadway New York, New York 00 By: Howard Rubin, Esq. 0 Jennifer Tafet Klausner, Esq. Paul, Weiss, Rifkind, Wharton & Garrison, LLP Attorneys for Defendant, Nielsen Holdings N.V., et al Avenue of the Americas New York, New York 00 By: Aidan Synnott, Esq. Patrick J. Somers, Esq.

12 COURT CLERK: Calling case number on the Part- calendar. Index Number /. In the matter of N E W D E L H I T E L E V I S I 0 N L I M I T E D versus N I E L S E N H 0 L D I N G S N. V., et al. Please, state your appearances for the record. MR. HEEP: Jeremy Heep, your Honor, for New Delhi 0 Television Limited, along with Rohit Sabharwal and Frank Griffin. Mr. Heep, are you going to be arguing on behalf of the plaintiff? MR. HEEP: Yes. MR. SYNNOTT: Aidan Synnott, from Paul, Weiss, Rifkind, Wharton & Garrison, for the Nielsen defendants. With me is my colleague, Patrick Somers. MR. RUBIN: Howard Rubin from Davis and Gilbert and my colleague, Jennifer Klausner. So, I have two motions in front of me. One is, I guess, a motion to dismiss, part of which has to do with personal jurisdiction. And the other motion, I guess, the second one has to do with dismissal for forum non conveniens grounds, as well as for various failures to state a cause of action. Is that about right? MR. SYNNOTT: Yes, your Honor.

13 And I am advised by The Appellate Division that I have to deal with the personal jurisdiction action first. So, that is for you, Mr. Rubin. But, not yet. I have the impression, Mr. Heep, that what your client is here complaining about is a failure of the defendants to properly supervise the activities of TAM in 0 India. Is that about right? MR. HEEP: Your Honor, it's close to right, but it is a little bit -- I mean, big picture? MR. HEEP: There are two big picture pieces. You have got the Nielsen Process, which is born in New York, originated from New York and controlled in New York. We submit that under our first broad cause of action of negligence that they have a continuing duty to supervise the quality of the implementation of that process. So, the answer to my question is, yes, Judge? MR. HEEP: Yes, Judge, as to the first cause of action. For the second cause of action it is, essentially, a New York company injecting itself into a very corrupted system that is the implementation of its product.

14 What do you mean by injected itself? MR. HEEP: I mean that -- You mean, the fact that they licensed their product meant that they injected themselves into a corrupted system? MR. HEEP: Not just the licensing, your Honor, but, when for years my client, NDTV, went to TAM ln India and said this a corrupt process that didn't work. In January of 0 it went straight to the top, to the CEO of Nielsen in New York and said, this is a big problem. The CEO of Nielsen in New York didn't say, sorry, that is not my problem. Go deal with the India company. Go deal with the Indian courts. What they did is they sent two high level executives from their company both with a title of chief, the chief security officer. And we have Bob Messemer and Paul Donato who both actually go to India and say on behalf of these defendants I'm being very patient, because I'm about to bring you back to where you started. But, keep going. MR. HEEP: They say, this is my problem. We take responsibility for this problem. We will investigate this problem. So, you say they admit that they are,

15 indeed, regulators and therefore you have staked out that position. And by golly, we are going to keep you to it; right? MR. HEEP: Yes. They carne and told us. Isn't that right? 0 MR. HEEP: Yes. Okay. So, going back to my very first question of you, Mr. Heep, big picture. MR. HEEP: Yes, sir. You think that the defendants here failed to properly regulate TAM. isn't it; yes or no? That is the big picture, MR. HEEP: In part, your Honor. What is the part that I'm missing? MR. HEEP: They failed to live up to their binding promise that they made to us. I just characterized it for you, which is okay. You said, we are going to, you undertook to regulate TAM. And by golly, we are going to make you stick by your promise. Isn't that your position? MR. HEEP: Yes. Same big picture. MR. HEEP: We are the -- You're here asking the defendants to be

16 regulators of TAM. MR. HEEP: To live up to -- That is the bottom line, is it not? MR. HEEP: The bottom line is to be held to their promise, their binding promise that they made. We will get to that. Okay, good. Have a seat. All right, Mr. Rubin. 0 MR. RUBIN: Yes, your Honor. MR. HEEP: Your Honor Talk to me about jurisdiction. MR. HEEP: Your Honor, may I address one preliminary issue? ask for leave to What is that? MR. HEEP: We cited in our original brief a case called the BUERS (phonetics) case from. And as our opposing counsel pointed out, we failed in our papers, due to our own oversight, to point out that that case had been reversed. I wanted to apologize to my opposing counsel and to The Court. We address why we think that case does apply. Okay. Thank you. So, you say that The Kantar Group is offshore, doesn't have a New York presence and it therefore is not subject to personal jurisdiction.

17 MR. RUBIN: Correct. I would also note that in the several minutes that this case was being discussed this is the first time our client has been named. When you asked Mr. Heep about his case he said that Nielsen is in New York. And that a New York company, 0 clearly not our company, because our clients are in The Isle of Guernsey, and that is not New Jersey, and The United Kingdom. A New York company which is only Nielsen -- I was never sure how you pronounce that. MR. RUBIN: I'm not sure, either. But, I just pronounced it as Jersey, to be frank about it. But, even in the opening moments of this it becomes clear why a forum non conveniens in our case should be granted. But, as to jurisdiction, you have it exactly right. It's the headlines of different points in our brief. Kantar Group exists only in The United Kingdom. The There is another company which is not a subsidiary and not a parent. Well, they disagree with you. They say a couple of things about that. They say, there are some occasions that it is here in New York. Your web site makes reference to offices in

18 North America. There is Mr. Salama. MR. RUBIN: In England, but does come to The United States from time to time. They say, shows up here regularly. They offer this sort of world map that they say illustrates your presence here. And all of that not so much 0 to prove jurisdiction, but to say, hey, Judge, there is enough here that at least we get discovery. Talk about the discovery issue. MR. RUBIN: Sure. The standard That is about right, Mr. Heep? Isn't that what was the burden of your argument? MR. HEEP: Yes, your Honor. I will come back to you. MR. RUBIN: This time, you got a clear answer. I was pushing hard for a short one, but I just failed. So, I'm batting 00. I expect to do better. (Smiles) MR. RUBIN: The first issue I would like to address, your Honor, is that you keep saying your web site and map of companies. But, they named one company, a particular company that has no subsidiaries and located only in one place, in The United Kingdom. It has no employees here. It doesn't do any business here. It is part of a conglomerate. And that

19 0 conglomerate does have other companies in other parts of the world, but they have a name. I think when they named The Kantar Group that that was the, they thought that was the parent of all of the parents and maybe they could argue that they were a subsidiary of New York. In fact, it ls not the parent. It is just one company that happens to have a name that sounds a little bit more global, but one company. 0 So, they picked the right Kantar? MR. RUBIN: Yes, the right Kantar would have been Kantar India which would be a shareholder of TAM, but was dropped as a defendant in the most recent complaint where they attempted to keep the case in New York. The Kantar India is the company that had whatever discussions and went to whatever meetings are part of what Mr. Heep says is the second part of their case where promises were made. Kantar Group has no connection to TAM. Kantar Group is not a shareholder of TAM. shareholder is Kantar India. Kantar Group, the So, there is really, there is a Kantar company in New York, but that has nothing whatsoever to do with what took place in India. They could sue Kantar New York, which they did in the first complaint. But, in fact, they have now dropped

20 them as a defendant. And instead of adding Kantar India, which would be a logical company to sue - I don't know, they could easily get jurisdiction in India along with TAM - they chose an English company which has no presence in New York, whatsoever. And it has no employees here. It does no business here. It has no office here. It has no bank account here. We put all of that in an affidavit from Eric Salama 0 from The Kantar Group in England. All they answered with was an affidavit from counsel basically suggesting, as you mentioned, there ls a web site and it lists many Kantar companies. That it wants to somehow impose jurisdiction in New York over this British entity for no reason. Mr. Rubin, if one were to look at this web site for Kantar, and it says contacts, Eric Salama as chairman and CEO, Group Limited. I assume that's the web site for Kantar MR. RUBIN: That is the web site for all of the companies around the world. And he is the CEO? MR. RUBIN: He is the CEO. And he is located in England and is British. I see that at the web site. But, then it has got this tab that says, view all offices. Which suggests to me that maybe there is more than one office.

21 MR. RUBIN: Well, as I said, there is an office of the global Kantar company in New York. But, it's not a subsidiary or a parent of the company that they have named here. Mr. Heep's exhibit B, exhibit B. It is the one ahead of that. It is the one ahead of that, Mr. Rubin, ln the upper left hand corner. MR. RUBIN: Okay. 0 That is not it. think. MR. RUBIN: "Who we are?" That is not it. MR. RUBIN: That is exhibit B. Exhibit B. You're in exhibit C, I MR. RUBIN: I think I'm in exhibit B. This is Frank Griffin's (phonetics) affirmation. It looks like this. MR. RUBIN: Okay. All right? MR. RUBIN: They are different companies. And yes, they use the same name around the world. Let me talk to Mr. Heep. Tell me why you think that this British company that is based in London, has a CEO in London, should be here when your beef is against TAM, which at best is a couple of

22 levels down from where Kantar Group Limited is? MR. HEEP: Your Honor, we have a general jurisdiction basis for jurisdiction and a specific jurisdiction. If I start with the second one, your Honor was asking about Mr. Salama. What about him? 0 MR. HEEP: He doesn't work for the India company that Mr. Rubin says we should sue. No. He works for the defendant here. MR. HEEP: Right. And the company ls not amenable to suit, says Mr. Rubin. MR. HEEP: Right. He is the person who injected himself. He is the one that came to India and told -- So what? He was in India, so what? That doesn't mean you have jurisdiction over the company that he runs. MR. HEEP: For a specific jurisdiction that means that he acted in conspiracy with The New York defendants to continue to generate profits for his company and for the New York defendants from the corrupt You're way up there on a very, very, very thin limb. by the way. It is about to break from your own weight,

23 MR. HEEP: On the general jurisdiction side, your Honor, first of all, WPP, their ultimate parent company, says publicly "we intentionally keep this messy." Tell me this, tell me this. Does your client, is your client part of a group of companies? MR. HEEP: It is just NDTV. Do you know? 0 MR. HEEP: I don't know, your Honor. Okay. But, chances are it has got affiliates. It seems to me that it has different TV stations and they are probably structured in Shiloh where there are individual corporations, which is sort of what WPP is a holding company way up here. MR. HEEP: Right. THE COURT: And it has got far flung enterprises all over the planet. MR. HEEP: Right. THE COURT: And if we ever get to have a colony on the moon they will be there, too. (Smiles) MR. HEEP: So, WPP says So, what if Sir Martin Sorrell flies the world and is in New York a lot? So what? MR. HEEP: A, he says publicly, "we keep our structure intentionally messy." B --

24 So what? Are you trying to tell me that somehow that you have got a corporation that does not maintain the corporate forum? Is that what you're saying? MR. HEEP: Yes. On the messy part, I'm saying. Why don't you tell that to The SCC? 0 They will be very interested. Mr. Heep, let's not waste my time on that one. MR. HEEP: Okay. You know, the notion that somehow you're going to be able to get the discovery in a vain attempt to pierce the corporate veil on a publicly held company, you're really barking up the wrong tree. It's a waste of my time. I'm not interested in hearing it. And if you want to review it, go see The Appellate Division. the question? MR. HEEP: If I can just answer the second part of Yes. MR. HEEP: So, WPP says in its public report that it implements its consumer insights division through The Kantar Group. That is exactly right. Okay. And Kantar Group implements its activities through a number of subsidiaries.

25 You know what, you're allowed to have a corporate forum. You really can. MR. HEEP: And they say that their head office is in their public report. Their head office is the entity that we sued. The Kantar Group head office is Kantar Group Limited. That is what they report to the public. And Kantar Group itself has a regional headquarters here in New York. 0 It does? Where is the evidence of that? MR. HEEP: Exhibit C to the - The Griffin affidavit. I looked at that. It says nothing of the kind. MR. HEEP: Your Honor Nor does exhibit D. MR. HEEP: It says, Kantar Global headquarters and regional offices. And then it lists North America. Look at your exhibit B and you will see where it says there are offices. Your exhibit B. MR. HEEP: My exhibit B? Yes. MR. HEEP: Yes, your Honor. In the upper left hand corner. You see where the tab is that says, all offices? MR. HEEP: Yes.

26 Did you bother to open that tab? MR. HEEP: Yes. So, it says -- open that tab? What do you think this says when you your Honor. I'm asking you, did you bother to do it? MR. HEEP: That is how we got to the Exhibit C, No, it isn't. 0 North America. MR. HEEP: We have under this, regional offices, Mr. Heep, I tried the tab about an hour ago. And I will tell in you a minute what happened when you open that tab. MR. HEEP: Your Honor, if I may? On the same document it lists regional offices as North America. I see that. And then I went looking for the regional offices. Then, I went and looked at your Exhibit D. MR. HEEP: Right. This is the exhibit that says that the principal activity of the company, that is the company we sued, is to act as a head office within The Kantar Group. Actually, I am sorry. I meant your Exhibit E. But, that is okay. MR. HEEP: Then, C is the one that if you click on

27 the tab, Kantar operating companies and their locations around the globe, you have regional. That is exactly right, Mr. Heep. These are different companies. That's the point. You cannot sue Kantar Group, which is a different corporation than its subsidiaries. That is why your Exhibit C is not helpful. I thought, perhaps, Exhibit B would be helpful, 0 because it talks about Kantar Group's offices. Did you happen to press the tab to see what happens? MR. HEEP: this moment. I'm sure I did, but I don't recall at Well, let me help, you. I will tell you what it says. It says London, Buenos Aries. Nothing else. MR. HEEP: I am told that it takes us to Exhibit C. It does not. MR. HEEP: Which has Well, as of today, this morning an hour ago, it did not. I am sorry, counsel, you're -- MR. HEEP: I can only stand by my exhibits. I'm telling you, I did. That is a fact. MR. HEEP: Okay.

28 You can challenge me, if you want. But, I went ahead and checked it out. I really did. MR. HEEP: Our simple point, your Honor, is that Kantar Group, the head office in its public filings is the office that implements. It is in London. It is not here. You don't have personal jurisdiction over it. point. That is the 0 MR. HEEP: It is. And in our view it is the head office of the Kantar companies, which has -- Companies, plural. Separate entities. You cannot sue Kantar London. Let's put it another way. You cannot bring a claim against Kantar New York, assuming such a thing exists, by suing Kantar London and vice versa. That's why you have a corporate forum; isn't that right? MR. HEEP: In the normal scenario, yes, your Honor. And this What is not normal about this one on the question of personal jurisdiction? MR. HEEP: On the question of personal jurisdiction you have got that CEO, which is the head of the group that implements consumer insights which they say is a ratings for 0 countries. And he is regularly coming back and forth to

29 The Kantar companies in New York. Where does it say that? MR. HEEP: We have got it in our -- You mean, your Exhibit F? Is that what you're talking about? MR. HEEP: Yes sir. What do you think that says? MR. HEEP: That you have got Mr. Salama. 0 What it says is that at the time he was-- this is an October, 0 article, right? MR. HEEP: Yes, sir. He was just taking on the job; right? And it says that he is coming going back and forth; right? MR. HEEP: Yes, sir. Did he have another job before he took this job? MR. HEEP: I think the article talks about it. pray tell? It says it. And what job was that, MR. HEEP: Your Honor -- Director of WPP. No surprise that he is back and forth to New York. That doesn't mean and there is no evidence that somehow he now has a presence, regular presence in New York.

30 It does say that he expects to be continued to travel back and forth. MR. HEEP: Your Honor, with all due respect, this individual, we have made the assertion that he spends two weeks a year in The US. And this individual submitted an affidavit in this case and has not denied that. All we are asking for is discovery. Counsel, the problem that you have is 0 that you haven't bothered to carefully read your very own exhibit. I think I have read it. It says that he was, at the time this was written he was a director of WPP. That's why he was moving back and forth. MR. HEEP: Fair enough. Would you like me to show you exactly where it says that? MR. HEEP: My point is that there is no denial by affidavit by Mr. Salama, even though he submitted an affidavit of our assertion that he spends the two weeks in London. You're assertion is based upon -- has no basis. MR. HEEP: There is no response. There is not. So, the fact that you assert something --

31 If I say, you know what, I have a fee interest in this building. And The City of New York, which happens to own the building, keeps quiet. Do you think that somehow that gives me an entitlement of owning the building? MR. HEEP: Your Honor You see how bizarre that is? 0 MR. HEEP: In this circumstance and in the context of this litigation it is somewhat surprising that this individual did not deny that allegation. What is surprising about it, you misread your own article. MR. HEEP: Your Honor, with due respect, all we are asking for is to learn more about what they say that they keep it messy, because Mr. Salama injected himself. Here's the trouble with that request, Mr. Heep, where you haven't given us some indication that there is some chance, that there is some chance that perhaps you would have personal jurisdiction over this company. Forget about the fellow. And you haven't shown me that yet. And were I to then in every case or with this court to simply on the basis of allegations say, okay, we will give you discovery for the purpose of discovering whether or not there is personal jurisdiction, that defeats the very purpose, doesn't it? Because, you're forcing somebody who is unwilling to come to New York and engage in lots of

32 discovery, because we happen to have open discovery rules. So, based upon nothing you can force somebody else to come to defend themselves in New York. That is not the way this works in New York. MR. HEEP: Your Honor, we have got, we have cited cases for the proposition that a company can establish general jurisdiction. We can at least make a sufficient start for the presence of affiliates. 0 We have listed affiliate Kantar companies. we believe that when you combine that -- And You are talking about publicly held companies here. This is not a mom and pop operation. These are folks, WPP is a publicly held company. They have got all kinds of disclosures to The SCC and other regulatory agencies that they have got to submit. You know, I cannot presume or even accept initially your assertion that, well, somehow, Judge, because we are asserting it we are entitled to test whether or not this publicly held company operates like a candy store or operates like a publicly held and regulated business. is what you're trying to get me to do. That MR. HEEP: Well, what I'm trying to do, your Honor, is to say that the combination of the contacts and the direct role of Mr. Salama in inserting himself into this

33 issue In India. MR. HEEP: Gives us -- In India, isn't that right? MR. HEEP: In India. So, why don't you go to India with your lawsuit if you are really concerned about getting jurisdiction and Mr. Salama spends all of this time in India 0 paying attention to this complaint of yours? And by the way, you get TAM there, too. Go to India. Don't you think that is the place to go? MR. HEEP: We have these defendants telling us that they are the only entities. Kantar and Nielsen told us they are the only entities who can fix this problem. That is what they said. That is what they told us. That is the representation. Is there something wrong with their software? Is that what you're arguing? I didn't see that anywhere in your complaint. MR. HEEP: It is not an issue of software. I didn't think so. So, what you are saying, to go back to my first question of you, which it took you for ever mostly to avoid, but I think I finally pinned you down. What you're trying

34 to do is have them police TAM. That is what you're here saying that they must do. They have to police TAM. MR. HEEP: I'm here saying they should be held to their binding promise to my client. Well, we will get to that. But, that is the essence of what you are saying. And if you want Mr. Salama, if you think that your claim here has to do with activities in India, most of the 0 investigation was in India. Mr. Salama was in India. Kantar's affiliate that is relevant to this is in India, not in New York. It seems to me that you have not established personal jurisdiction in New York over The Kantar Group. But, if you have got something else you want to tell me, tell me. Because, otherwise, I'm going to dismiss the Kantar Group Limited. MR. HEEP: Your Honor, all I would say is, obviously, our very clear position from my perspective, we have established sufficient contacts through the affiliates. Which affiliates? MR. HEEP: Through the affiliates that we list in Exhibit F. I believe it is F. MR. HEEP: E. Sorry.

35 MR. HEEP: In combination with WPP's messy comment. And with Salama directly making what we think are binding promises to our client. If you put those together that is enough to at least get discovery, your Honor. I guess, we didn't talk sufficiently. I guess we didn't talk at all about D. exhibit? MR. HEEP: Yes. This is your 0 What does it say at the top? MR. HEEP: The Kantar brand companies, your Honor. Brand companies. It is not Kantar Group Limited. affiliate, a separate corporate entity. Maybe, an Separate. That is not Kantar Group Limited. The motion to dismiss Kantar Group Limited for lack of personal jurisdiction is granted. Let's move on to the rest. All right. So, while we are talking, Mr. Heep, why don't I continue this conversation to you. I guess, the next issue has to do with whether or not the complaint, and this I guess goes to all of the defendants, should be dismissed on forum non conveniens grounds. But, let me hear from you about that. They essentially say, look, the activities here

36 that we are talking about happened in India. It is about, the offending company happens to be in India. It is not even here before The Court. There is some question as to whether or not one can get jurisdiction over TAM. here. But, in any event, it is not 0 All that you're complaining about, the activities are in India. The players are in India. The records are in India. There are minimal contacts with New York. For all of those reasons the case should be dismissed on forum non conveniens grounds. Now, is there anybody on the defendant's side who wants to Well, my question on your side is, have I capsulized your position with respect to forum non convenience? And if there is anybody who wants to add more to it, tell me. MR. SYNNOTT: Your Honor, there are some more details. But, I think you have capsulated it perfectly. MR. RUBIN: I agree. Our clients had even less contact with New York than Nielsen, who at least is a resident here. So, that is the argument, Mr. Heep. So, tell me why you think that those arguments should not carry the day.

37 MR. HEEP: Your Honor, what I have is a New York entity with a process that originates out of New York, that is licensed from New York. The cash flows back into New York. When we contacted them and said, here's this massive problem, they didn't say, no, that is not our problem. They sent two very high level people from their company to deal with the problem. And those people carne to 0 India and they didn't say -- A lot of people got involved in that, including the two people. And I'm accepting what you say, including the two people you're referring to. MR. HEEP: Yes. THE COURT: And in fact, those folks also went to India; right? MR. HEEP: They did. THE COURT: So, the game is playing out in India, isn't it? MR. HEEP: What these - THE COURT: No? MR. HEEP: The meetings occurred in India; yes, your Honor. THE COURT: That is what I thought. MR. THE HEEP: COURT: But, the promises -- That is where the players are, right?

38 MR. HEEP: These players are in New York. Most of the players around the critical player camp are in India, right? MR. HEEP: That is not what they told us. They didn't say that. They said counsel. I'm trying to follow your complaint, MR. HEEP: Right. 0 Your complaint, as I read it, identifies TAM as the rogue and indeed the central player in all of this; isn't that right? MR. HEEP: Paragraph, your Honor. Am I wrong about that? I'm looking at your entire, what 0 -- I didn't count the pages, but it's very long. You're a rather prolific writer and congratulations for that. But, my takeaway from looking at the complaint is that the critical player and the bad actor is TAM. MR. HEEP: We respectfully disagree. And we plead-- THE COURT: TAM is not the bad actor? Tam is not the critical player? MR. HEEP: No. position? THE COURT: TAM is not the bad actor? Is that your

39 0 MR. HEEP: TAM is a participant. THE COURT: Is it the critical participant? MR. HEEP: No. THE COURT: It's not, you say? That is your representation to The Court? MR. HEEP: Yes, your Honor, that is. Our pleading, our pleading needs to be taken with respect as true and reasonable inferences need to be drawn 0 in our favor. You mentioned TAM in your complaint more than any other entity; isn't that right? MR. HEEP: I didn't do a count. But, I can say that these -- It is up there in the hundreds, isn't it? MR. HEEP: I don't know, your Honor. These defendants have an incentive. You're complaining about something bad that was done by TAM. MR. HEEP: No, your Honor. If I could direct your attention to paragraph. Okay. Go ahead. MR. HEEP: Paragraph, both during and following this presentation if I could just set up the context a little bit.

40 Sure. MR. HEEP: We write to Nielsen's CEO. He sends his top level executives. They acknowledge I will wait for your Honor. No, go ahead. I'm listening, I really am. I'm just trying to find-- go ahead. But, I'm listening. MR. HEEP: Okay. They, I'm quoting, "Nielsen and 0 Kantar acknowledge that they were responsible for the quality control of the Nielsen Process as used by TAM." That is exactly right. MR. HEEP: That is their position. It is paragraph? MR. HEEP: Paragraph, your Honor. Paragraph. Let me get to that. So, they were responsible for the quality control of the Nielsen Process as used by TAM. So, they had the responsibility for the quality control of the Nielsen Process. MR. HEEP: Yes, sir. And that is how they hold themselves out to the world. But, you are not complaining about the Nielsen Process. You're complaining about what TAM did with it. MR. HEEP: I'm complaining about their

41 responsibility for the quality control of the Nielsen Process as we have pleaded. Yes. But, you told me earlier in this, in your appearance today, that you are not complaining about the Nielsen Process. MR. HEEP: That is what you told me. Then, I must have misspoken, your Honor. That is the center of all of our papers and all of our complaints. 0 Mr. Heep, tell me this. Is there something wrong with the Nielsen Process? I'm talking about the software that they are licensing. You told me, no. MR. HEEP: I am sorry, I misunderstood. It's the implementation and quality control. That is right. But, what you are saying here is that they have some responsibility for quality control of their software. MR. HEEP: It is not just software, your Honor. I cite multiple paragraphs that where they are holding out to the world that the crucial piece of what they do is reliability and integrity. That is what they sell. And that is how they make money in New York. And that is how the other defendants make money. The WPP defendant, as well, makes money in New York. They hold it out as a process that has integrity.

42 They came to us. They said, we control the process. They came to you or you came to them? his top executive. MR. HEEP: We asked Mr. Calhoun. Mr. Calhoun sent So, you initiated these contacts. MR. HEEP: Absolutely. It is not that they came to you. 0 MR. HEEP: Yes. Okay. Let's just keep it straight. They did not market to you. You had a complaint. You, with your complaint you went to them; right? MR. HEEP: We went to them with our complaint. That is what I thought. MR. HEEP: They market to the world the integrity and reliability of their process. They make money on it. They had every incentive to come to us. And you are not complaining about their process. MR. HEEP: We are complaining about the implementation of the process, your Honor. That's exactly right. You're complaining about what TAM did or failed to do. That is what you're complaining about. And you would like them to police that which TAM

43 did or failed to do. MR. HEEP: I would like to hold them to their commitment and promise. They said, A, I control the process. B, I'm the only ones. This is what they say. well. If I can refer your Honor to paragraph, as I'm now fast forwarding after their investigation. In light of Nielsen and Kantar's 0 findings this is the investigation that they did, I gather. MR. HEEP: You're right, your Honor. With confirmed security and methodology identified by NDTV at the January nd meeting. So, at that meeting you were complaining about what TAM was doing, not about some failure of the Nielsen Process; isn't that right? MR. HEEP: That is not right. Well, let's go back to the paragraph where you referenced the January th meeting. MR. HEEP: Yes, sir. If I could direct you to a couple of paragraphs before that, paragraph 0 and the last sentence of paragraph 0. Let me get to 0. MR. HEEP: Okay. Give me a chance to read this, please.

44 (Peruses) So, here's what you are saying. At the January th meeting NDTV also detailed how it was damaged by these illegal practices. Now, if you look up above at what the illegal practices are, those are the illegal practices not of Nielsen, not of Kantar, but rather of TAM. Okay? That is what you're complaining about. That is 0 what it says. That is what happened at the meeting, your complaint. MR. HEEP: Your Honor, I mean, we can keep going backwards, but every part of our complaint to these companies all of the time has been about their failure to live up to their commitment which they made to maintain the quality of the process. And we even -- There is nothing wrong with the quality of process. It is the abuse, say you, by TAM. That is really what you're complaining about. MR. HEEP: We, in fact, in this particular paragraph, the last sentence of the paragraph -- How about the first sentence in the paragraph? MR. HEEP: Yes. It has been damages by these - By these illegal practices. What are these illegal practices? Whose practices

45 were they? MR. HEEP: They are the illegal practices of -- THE COURT: Whose practices were they? MR. HEEP: Around the Nielsen Process. THE COURT: Whose practices were they? That is the third time I'm asking. MR. HEEP: TAM is implementing the Nielsen Process. Exactly, TAM. 0 MR. HEEP: Yes, sir. It is not illegal practices by Nielsen or by Kantar; right? MR. HEEP: Yes. And -- You are saying, they weren't adequate regulators. MR. HEEP: They took responsibility. They told us they were responsible. They said that what had happened in India based upon their investigation was absolutely shocking compared to everything they have done all over the world, and unethically believable. So, even they didn't like what TAM was doing. MR. HEEP: Yes. So, they took the evidence of TAM demonstrating their control. They packed it up. They brought it here to New York.

46 Now, they are telling us that we have to go to India to get the evidence that they have selected and brought to New York. Because, your client is in India and it was damaged, arguably, in India, not New York. right? Isn't that MR. HEEP: The harm to my client is in India. I concede that. 0 Exactly, right. here. MR. HEEP: The evidence is here. The witnesses are The promises were made here. There is not -- there is one piece of evidence here, Mr. Heep. I guess, it is a lap top that was picked up in India, brought to New York and analyzed; isn't that right? MR. HEEP: There are dozens of lap tops that are here, your Honor. Well, all right, 0 lap tops, 00 lap tops. Same point. The point ls not whether it's or 0 or 00. The point is, the lap top was in India. It was used in India. The corruption that you are talking about occurred there. Probably, it was, you know, the lap tops were used in India to advance the corruption. analysis. Brought here for

47 And because it was brought here for analysis, somehow, New York should be the proper forum? MR. HEEP: Under the BANKNO (phonetics) case, absolutely, your Honor. We have got their notes here, their conclusions, their recommendations, their board meetings. They have their Measurement Science Audit Team here. Whose board meetings are here? 0 MR. HEEP: Their board meetings. Nielsen? MR. HEEP: Yes. They are absolutely reporting this investigation. But, you are not complaining about something that Nielsen did. What you're complaining about is their failure to police somebody else adequately. is what you're complaining about. That MR. HEEP: Two things. One, failing to police under a negligence theory where they created a duty. We will get to that. MR. HEEP: And two, failure to live up to their binding commitments that they made to my client, saying we are responsible, we are going to fix this and we are the only ones that have the ability to fix that. And on that basis, they took the evidence here. Their witnesses are here. Their notes are here.

48 Did they have some sort of duty to your client to fix it? of that MR. HEEP: Absolutely. What is that duty? What ls the source duty? MR. HEEP: So, I have two broad categories. What is the source of the duty? 0 I'm talking about your next negligence claim. MR. HEEP: The negligence claim? What is the source of duty that you say they have to fix the problem? MR. HEEP: There are two sources. Of course, I'm talking about duty to your client. MR. HEEP: Yes. But, they hold themselves out in the world wide web, paragraphs, and. So what? MR. HEEP: As having, as the necessity of having a Nielsen Process with integrity, because advertisers spend billions of dollars based upon-- I'm going to ask you one last time. What is Nielsen's duty to your client in negligence? MR. HEEP: It is to fulfill their obligation of quality control of their process.

49 0 They didn't promise that to you. MR. HEEP: They did, your Honor. How did they do that? over the world. MR. HEEP: They promised it to broadcasters all To broadcasters? MR. HEEP: Like my client. No. They sell their products to 0 somebody else, TAM, a different company; right? There is a relationship between them and TAM. No relationship between Nielsen and your client; isn't that right? MR. HEEP: There is not a contractual privity. I agree with that. None. And I'm struggling really hard to find where there is somehow some duty to your client. You know what, you're doing the following. So, Microsoft sells software to run systems. And so somebody, they make the system make candy bars. It is a factory somewhere and they have got software that runs it. The software goes haywire and there is too much sugar put in the candy bar. And the argument is that because of the excess -- I'm really giving you a weird way-out there example. Because, of the excess sugar it creates obesity

50 which results in grave illness to kids. And you say, well, you know, we don't need to sue the manufacturer who runs the factory. But, rather, we can trace it back to the software that puts too much sugar in the candy. Microsoft, your responsibility is to us. And therefore, 0 Do you think New York for one minute would allow such a cause of action? MR. HEEP: I'm not sure I follow the entire scenario. I can tell you about the SCOTTS (phonetics) case. I gave you a bizarre example. MR. HEEP: I appreciate that, your Honor. I can tell you about the SCOTTS case and I can also tell you about the LANDSER (phonetics) case. Okay. That is good. MR. HEEP: Maybe, I will start with the LANDSER case, which is Justice Cardoza's case, where you have got the seller and buyer of beans. It is certainly an old case. And the public weigher in the middle. Contractual privity is between the seller of the beans and the public weigher. Guess what? When I was back in private practice I agonized over that case. I actually know a little bit about it. Okay? MR. HEEP: Okay. All right.

51 So, I think what happened there, as I recall, was that -- Gosh it has been so long. There was a special relationship, as I recall. And it went off on that issue. That is really what I'm trying to say. MR. HEEP: The contract was between the buyer and the weigher. The weigher gave this certificate to the buyer and it was not in privity. And it was given in order to induce the 0 buyer. Well, any way, go ahead. MR. HEEP: That is all. There was no privity. But, The Court said, Justice Cardoza said, there is a responsibility even though they are not in contractual privity. Because, the public weigher knew that the buyer was going to rely on the certificate. They are in a relationship - I forgot the phrasing - coming close to privity. Isn't that right? MR. HEEP: Not in contractual privity, but certainly a duty. Similarly They certainly had a duty to the buyer. Because, you had a special relationship, sort of. Those aren't the words. MR. HEEP: Because the weigher knew that the buyer was going to be relying on this. That is exactly right.

52 MR. HEEP: Just like here, where Nielsen knows that advertisers all over the world are relying on its integrity. You know, there are a whole bunch of cases in New York around that very question. And it usually comes up in the context of accountant's liability, where rd parties, where the accountant gives, prepares financial statements and the financial statements turn out to be wrong. People on the street rely on it. But, the 0 accountant did not prepare it knowing that it would be that his report would be used by Mr. Jones. But, Mr. Jones, who is out in commerce is using it, relies on it to his detriment. You know what The Court of Appeals says in that circumstance? No liability. MR. HEEP: Yes, but But, if the accountant did this report knowing that the expectation was that it would be used and relied upon by Mr. Jones MR. HEEP: Yes, sir. Okay? Done in order to induce Mr. Jones, specifically, to take some act as to which this accountant's report is relevant, then under those circumstances, yes, you might have liability. Unfortunately, your situation is like the person out in the general public who wants to rely on the

53 accountant's report. That is your problem. MR. HEEP: I respectfully disagree. I think that our case is exactly like that case, 0 where they are putting a product in the marketplace with the specific intention and knowledge that their ratings will be relied upon in paying NDTV for advertising space. That's absolutely what happens. And to the extent that it didn't, as of January, when Mr. Messemer reports back to them that it is unbelievable what happened, they certainly had full knowledge of what they were doing and a full responsibility to correct it. So, what if they knew? So, what if they knew and admitted to you that they were distressed by what was going on at TAM? Does that lend, sort of cause a blossoming of responsibility to your client just because they are distressed with what the entity that they were in contract, that they had a contract with, TAM, was doing? MR. HEEP: Knew, distressed and promised. They told us, we are fixing that. We will get to promise. MR. HEEP: So, now, they know that they are getting proceeds from their product into New York that is based upon elicit and corrupt practices. So, therefore, going back to my

54 example, yes, you can sue and win against Microsoft. MR. HEEP: I apologize. I'm not sure I got the whole Microsoft piece. But, they certainly Their software caused more sugar to go 0 into the candy than otherwise would have gone, resulting in obesity and kids die from it. MR. HEEP: Perhaps, I could talk about that by describing -- Talk to Mike Bloomberg. MR. HEEP: By describing the SCOTTS case. The holder of the trademark for a lawn mower that was then going to be manufactured by Home Depot. The license agreement for the trademark actually in that case didn't even have the quality control provisions. But, when SCOTTS came in and injected itself into the process and took responsibility for the quality control of the process talking about? This is a product liability case you're MR. HEEP: It is, your Honor. So, you are talking about the strict liability rules associated with inherently dangerous products. MR. HEEP: That was not the basis of the decision, your Honor. The basis of the decision was that Scotts

55 injected itself into the quality control of the process. It's strict liability. We are not talking about strict liability here. Come on. MR. HEEP: The question wasn't whether it was strict liability or not. The question was, who had the duty to whom. And in that case Scotts had the duty to the injured party. It is exactly like this case. 0 Because, it had what kind of product? MR. HEEP: Because Scotts had the duty. A dangerous product? MR. HEEP: Like the product that Arising out of contract principals having to do with warranties as to the product doing that which it was designed to do. MR. HEEP: That is not the reasoning of The Appellate Division, your Honor. I respectfully refer you to that full discussion. Well, we have gone a little bit afield of this specific issue, which has to do with forum non convenience. Which, frankly, we have to look at a number of things, do we not? MR. HEEP: Yes, sir. Which is the residency of the parties; whether the transaction was caused, in this case the cause

56 of action occurs primarily in a foreign jurisdiction; the location of the potential witnesses and relevant evidence; potential hardship to the defendants. The burden to New York; poses the potential for application or the unavailability of an alternative forum in which the plaintiff can bring it. That is really the standard, isn't it? MR. HEEP: It is the standard. 0 So, all of this contract stuff that we are talking about, we have sort of gotten ahead of ourselves. So, tell me about all of these. residence of parties. The first one, MR. HEEP: Residence of the parties. Well, you have already made your ruling on The Kantar Group. So, most of the parties who are sued here are based in New York, do business in New York and are headquartered in New York. All right. Now, whether the transaction out of which the cause of action arose occurred primarily in the foreign jurisdiction, what about that one? MR. HEEP: The promises themselves were made in India. there. All right. So, we are over in India

57 MR. HEEP: Yes. The location of the potential witnesses and relevant evidence. That is India, too, isn't it? MR. HEEP: No, sir, your Honor. I thought we agreed on that before, that most of them -- Yes, there are two here who went, who were contacted here. They went over to India. 0 By the way, your client is from India, too, right? It's an Indian company? MR. HEEP: The client is from India. They are based in India and the harm they are complaining about happened in India. Everything happened in India except for the investigation that followed after your client complained; isn't that right? MR. HEEP: The failure to control the quality of the Nielsen Process, in our view, is originated from here. We have already agreed. transaction. MR. HEEP: That is a fundamental part of the We have already agreed that the quality of the Nielsen Process is not at issue. TAM's misuse of the Nielsen Process. What is at issue is Now, the misuse of the Nielsen Process occurred not here but in India, isn't that right, Mr. Heep? MR. HEEP: My position is that the failure to

58 control the quality originates from here, because that is, the whole transaction is from here. Quality of what? MR. HEEP: Of the Nielsen Process. complaining about. complaining about. But, that ls not what you're It is the use of the process that you're MR. HEEP: It's the process. 0 It is the use by TAM. MR. HEEP: Yes. Not the process, itself. day. MR. HEEP: They generate ongoing license fees every They continue to make profits. The process is supposed to be a process that has integrity. Yes, the design of the process itself is fixed. But, it is implemented year, after year, after year. Where? In your case, where was this implement? MR. HEEP: It was implemented in India, sir. Thank you. All right, so that is it. Now, so the witnesses are largely in India? MR. HEEP: That I disagree, respectfully, your Honor. We think the key witnesses are here. Mr. Calhoun is here in New York. Mr. Donato is here in New York. Mr.

59 0 Messemer is here in New York. The Measurement Science Audit Team that conducted the entire investigation is here in New York. They wouldn't give us discovery. We don't know how many people are on that team. We don't know what communications they had between them. Mr. Farsot's (phonetics) family is here in New York. He is the person who coordinated the back and forth 0 over this promise that was made. The computer forensic experts are witnesses that are here in New York. The other people who were involved are sophisticated international business people. We have Thomas Puliyel and we have got a regional security director. Both of them are people who travel all over the world all of the time. Where are they based? MR. HEEP: I believe, Puliyel and Patiel (phonetics) are both based in India. So, what I'm talking about are my key witnesses. And Salama is based in London. MR. HEEP: Salama is based in London. Who you think is a key person, too. MR. HEEP: He is a key person. And he did the work that you're complaining about in India; right?

60 MR. HEEP: He made the commitment to fix the process when he personally traveled to India. In India? MR. HEEP: Yes, sir. MR. HEEP: to the defendants? So, the promise was made in India. It was, your Honor. So, what about the potential hardship 0 MR. HEEP: I could just give you one more set of witnesses. Yes. MR. HEEP: So, I have named who the key witnesses are, most of whom are in New York. You're right that Salama is in New York and the two other key witnesses are based in India. But, they are all savvy international people who travel all of the time. Now, I have got the NDTV witnesses, my witnesses. Those witnesses are fully committed to traveling to New York. Where are they? MR. HEEP: They are in India. They are fully committed to traveling to New York and for every purpose in this litigation, for depositions and every thing else, at NDTV's cost, not at their cost. Let me see if I understand this, Mr.