Baer's Furniture Co. v. Comcast Cable Commc'ns

1

BAER'S FURNITURE CO., INC., Plaintiff-Appellant, v. COMCAST CABLE COMMUNICATIONS, LLC, Defendant-Appellee.

No. 22-12518

United States Court of Appeals, Eleventh Circuit

October 4, 2024

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:20-cv-61815-AMC Before JORDAN, LAGOA, and MARCUS, Circuit Judges.

MARCUS, Circuit Judge

This lawsuit arises out of a dispute between Baer's Furniture Co., Inc. ("Baer's Furniture") and Comcast Cable Communications Management, LLC ("Comcast"),^[1] over Comcast's distribution of Baer's Furniture ads on cable television. These ads did not garner the viewership Baer's Furniture hoped for, so Baer's Furniture complained, and Comcast agreed to show Baer's Furniture ads for free to make up the shortfall. Before the shortfall was made up, Comcast decided to stop running the free ads. Baer's Furniture sued for breach of contract and fraud in the inducement. The district court granted summary judgment to Comcast, finding that Baer's Furniture's lawsuit was untimely under a limitation clause found in a contract that the parties had previously agreed to. After careful review, we affirm.

I. A.

Baer's Furniture is a family-owned furniture store based in Florida and headed by Jerry Baer. Comcast is a media and technology company offering cable television programming and advertising. Baer's Furniture bought advertising slots from Comcast from 2002 to 2019 in four geographic market areas: Miami/Fort Lauderdale, West Palm Beach, Naples/Fort Myers, and Sarasota. Toward the end of each year, Baer's Furniture would negotiate sample schedules (also known as "insertion orders" or "IOs") for each market area for the following year. The schedules specified when and where Baer's Furniture's ads would run, and they set forth ratings points estimates for each advertising slot based on Baer's Furniture's target demographic: women aged 35 to 64. These ratings points reflected the percentage of the target demographic expected to view a given ad.

According to Comcast, Baer's Furniture had a "cost per spot" agreement: they selected specific advertising spots and paid for the number of ads that were aired in the spots they selected. This type of contract does not guarantee ratings. Though Comcast may offer ratings estimates in its schedules, the customer is free to decide if it thinks that spot will overperform or underperform those estimates. Baer's Furniture, on the other hand, believed it had a "cost per point" or "ratings" agreement under which Baer's Furniture paid for certain ratings, and Comcast was contractually obliged to make up any ratings shortfall.

Despite the parties' long-running relationship, they point to only one document specifying any conditions to that relationship. This agreement is titled "Advertiser Terms and Conditions." It contains a cover sheet followed by seven pages of terms. The cover sheet was signed in November 2016 by Baer and Fran Perpich, Comcast's regional account executive for the West Florida market. It includes this line: "Subject: RE: BAER'S FURNITURE COMPANY ANNUAL 2017 AGREEMENT-WF - Comcast Spotlight Documents Require Your Att."

On the following page, the Advertiser Terms and Conditions state:

The following are the terms and conditions (the "Terms and Conditions") on which Comcast Spotlight, LP ("Comcast") or Comcast Affiliates (defined below) will distribute advertisements ("Ad(s)") via linear spot cable ("Spot Cable") . . . pursuant to one or more insertion orders (each, an "IO") that the parties may negotiate from time-to-time. As used herein, the term "Contract" shall mean these Terms and Conditions, together with any IO.^[2]

The Terms explain that an IO specifies the contours of each ad campaign: the type and quantity of ads being run, rates, start and end dates, and the networks on which the ads will appear.

The Terms also say that they are governed by New York state law and that Baer's Furniture must bring any action "arising out of or relating to the transactions under this Contract" within a 120-day limitation period. They also contain an integration and modification clause, which reads this way:

This Contract contains the entire agreement between the parties relating to the subject matter hereof, and no change or modification of any of its provisions shall be effective unless made in writing and signed by both parties, except that no change(s) or modification(s) can be made in any IO or advertising schedule under any circumstances.

B.

In late 2018, Baer's Furniture began to suspect that their ads were not receiving the audience ratings they were expecting. Baer's Furniture requested a summary of the ads that had run over the preceding two years, alongside the ratings for each one (called a "post"). Comcast provided the posts, which showed a drastic shortfall in the number of ratings points Baer's Furniture had expected to receive from its ads in Miami/Fort Lauderdale and West Palm Beach. Baer's Furniture complained.

In November 2018, Comcast agreed to make up the shortfall. Specifically, Comcast's local sales manager for Miami/Fort Lauderdale, Michael Elberg, said in an email to Baer that Comcast would "make up points for Baer's [Furniture] from 2018" by "running and monitoring [an under delivery] base schedule in each market in conjunction with Baer's [Furniture's] event/sale weeks for 2019." Comcast would "endeavor" to hit a certain number of points in the Miami and West Palm Beach markets per week and would "look for additional inventory opportunities" each week. "Once we make up this difference," Elberg told Baer, "we can look at future schedules." Elberg agreed that Comcast would run these ads for free: "we feel it is best to first make up the points in [Miami] and [West Palm Beach] before we consider adding money from Baer's [Furniture] in 2019."

Later in November, Baer and Elberg met to discuss the shortfall issue. Elberg summarized the meeting in an email he sent to Baer, stating "we will be implementing the following plan" and laying out steps "to correct[] this situation." He said, among other things, that "[i]n 2019 we will run [under delivery] schedules in [West Palm Beach] and [Miami] that are coordinated with your advertising flight weeks," and gave target numbers of points per week that Comcast would "endeavor to achieve" in those markets. El-berg added that "[a]djustments to the schedule(s) will be made to ensure performance."

In December 2018, Comcast began running free ads for Baer's Furniture.

Comcast and Baer continued to discuss the plan to remedy the shortfall in the early months of the following year. In January 2019, Elberg promised "to ensure that the plan is implemented."

In February 2019, Comcast's Vice President and General Manager for Miami, Chris Oberholtzer, emailed Baer. He wrote: "To say that we are disappointed in our shortfall is an understatement. Given the complexities of the current media landscape and the inherent flaws in cable television ratings measurement it would be easy to shirk responsibility. We are not doing that. We will not do that. We appreciate your understanding and willingness to let us remedy this deficit." Attached to the email was a letter from Oberholtzer, saying:

During the years of 2017 and 2018 our delivery of audience estimates has drastically under delivered. For the discussed time periods of broadcast 2017 and 2018, Comcast Spotlight has under delivered by 19,285 gross rating points. We will endeavor to run Baer's [Furniture] advertising moving forward at no charge until the audience short fall is made up. We understand there are many factors great and small that have contributed to this and take the matter very seriously. Again, you are a valued partner and we look forward [to] making good on our shortfall and putting this matter behind us.

In March 2019, Comcast's director of sales for Miami/Fort Lauderdale, Todd Weissman, told Baer:

Mike [Elberg] and I are fully committed to burning of[f] the weight owed and getting back to our successful partnership....Starting in April . . ., we will be coding your spots as "VIP" so that they have a much greater chance of clearing in the networks you covet, thus garnering you higher ratings and helping us get to a zero sum total much faster. We hope to show you the great results in weeks and months to come.

But in September 2019, Comcast backed off its initial November 2018 promise to "endeavor to achieve" certain benchmarks. Comcast's Vice President of Sales in Florida, Mark Runge, informed Baer that, "regarding under delivery from prior schedules, [Comcast] will not accept, run or steward previously executed campaigns." At this point, Comcast had made up 4,856 points of the shortfall, leaving 25,580 points remaining. Baer's Furniture's expert opined that the remaining shortfall was worth around $936,040.

C.

Baer's Furniture sued Comcast in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County Florida, on August 3, 2020, 11 months after Comcast had informed Baer's Furniture that it would no longer run free ads to make up the shortfall. Comcast removed the case to the United States District Court for the Southern District of Florida, grounding jurisdiction in diversity. After the district court dismissed Baer's Furniture's complaint in part, Baer's Furniture filed a second amended complaint, the operative complaint for our purposes. The complaint alleged that Comcast breached their agreements concerning Miami/Fort Lauderdale and West Palm Beach for 2017 and 2018 (Counts I-IV); Comcast breached its promise to remedy the shortfall (the "Shortfall Agreement") (Count V); and Comcast fraudulently induced Baer's Furniture into entering...