The special master in Local TV Advertising Antitrust Litigation, retired Judge Richard Levie, recommended (docket 1:18-cv-06785) Wednesday the U.S. District Court for Northern Illinois in Chicago grant in part and deny in part local TV advertising plaintiffs’ motion to compel production of antitrust compliance documents from defendants Nexstar, Raycom, Scripps and Tegna. Defendants “largely failed to carry their burdens to establish that the attorney-client privilege or the work product doctrine applied to the documents they claimed were privileged,” said Levie's report. CBS, Fox, Cox Media and ShareBuilders agreed in May to a $48 million settlement with advertisers in the lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal. The non-settling defendants -- Tegna, Griffin Communications, Meredith, Sinclair, Gray Media, E.W. Scripps, Nexstar Media and Tribune Broadcasting -- don’t oppose the “substance” of the partial settlements; they oppose certain aspects of the proposed notice process, recipients of the proposed notice and the content of the notices. Tegna, Raycom (now Gray Media) and Meredith moved the court to reconsider and vacate the portion of its order that compels them to turn over their customer contact information to plaintiffs’ counsel “without any restriction or limitation on its use.”
The 9th U.S. Circuit Court of Appeals gave counsel for the FTC, Microsoft and Activision Blizzard a deadline of this Friday for informing the circuit mediator about their clients’ views “on whether the issues on appeal or the underlying dispute might be amenable to settlement presently or in the foreseeable future,” said an amended mediation order Friday (docket 23-15992). The commission is appealing the July 10 order of U.S. District Judge Jacqueline Scott Corey denying its motion for a preliminary injunction to bar Microsoft from consummating its Activision buy (see 2307110061). The existing briefing schedule remains in effect, said the order. The FTC’s opening brief is due Aug. 9, and the Microsoft/Activision answering brief is due Sept. 6.
Iqvia and Propel Media shall not consummate their acquisition until after 11:59 p.m. EST Nov. 22 or the third business day after the court rules on the FTC’s request for a preliminary injunction under the FTC Act, whichever is earlier, said U.S. District Court Judge Edgardo Ramos’ temporary restraining order (TRO) Friday (docket 1:23-cv-06188) in U.S. District Court for Southern New York in Manhattan. The companies are to take all necessary steps to prevent their officers, directors, agents, divisions, subsidiaries, affiliates, partnerships and joint ventures from completing the acquisition, the order said. Allowing health data firm Iqvia to complete its buy of digital advertising company Propel Media before issuance of a decision on the merits by the FTC through the administrative process “would harm consumers and undermine” the commission’s ability to remedy the anticompetitive effects of the proposed buy, said the FTC Wednesday in its complaint for a TRO (see 2307200024). Defendant Iqvia, the “self-described ‘market leader’ in healthcare data, seeks to extend its dominance into programmatic advertising to healthcare professionals (HCPs) through the proposed acquisition of DeepIntent," which Propel Media bought in 2017, said the FTC’s 245-page memorandum of law in support of the TRO. The proposed Propel buy, which follows Iqvia’s buy of Lasso Marketing in July 2022, would give Iqvia control of two of the three leading healthcare demand-side platforms (DSPs) that deliver automated, programmatic, digital ads directly to U.S. HCPs via websites, mobile apps and smart TVs, said the memorandum. Because Iqvia already controls the top healthcare data for running ad campaigns to HCPs, Iqvia would have the ability and incentive “to disadvantage current and potential rivals to DeepIntent and Lasso” after the acquisition, said the memorandum. It cited the “indicia of vertical harm" identified by the U.S. Supreme Court in Brown Shoe Co. v. U.S., saying Iqvia is “likely to disadvantage Lasso’s and DeepIntent’s competitors” post-acquisition. As a result, competition in the growing market “will be curtailed, and healthcare companies will be forced to pay more to market their products,” it said.
Google requested permission Tuesday to file a motion to dismiss certain claims in Gannett v. Google, an antitrust lawsuit filed last month in U.S. District Court for Southern New York in Manhattan (see 2306220028). The lawsuit alleges Google manipulates “real-time bidding,” monopolizes publisher ad serving, “abuses” the Google DoubleClick for Publishers (DFP) ad platform to monopolize the market for ad exchanges, manipulates DFP to “artificially deflate bids from rival exchanges” and eliminates price floors while imposing unified pricing rules. In the Tuesday letter (docket 1:23-cv-05177) to U.S. District Court Judge Kevin Castle for Southern New York, Google counsel Justina Sessions of Freshfields Bruckhaus noted Gannett is represented in the case by the same counsel as the Daily Mail and its complaint “closely tracks” with that complaint, “including copying 198 of its 275 paragraphs almost verbatim.” As a result, the Gannett complaint includes several allegations the court previously ruled didn't state a claim, plus claims Google moved to dismiss from amended private plaintiff complaints in this MDL, Sessions said. Google doesn’t believe any distinctions warrant a different ruling between the federal antitrust claims in Gannett’s complaint, those brought by 15 states in the third amended complaint in Digital Advertising Antitrust Litigation, and other antitrust suits involving its digital ad business. Google asked to move to dismiss Gannett’s claims on bypassing directly sold deals via Enhanced Dynamic Allocation and line item caps as barred by the four-year statute of limitations. The court previously ruled the states adequately pleaded claims for injunctive relief on Enhanced Dynamic Allocation and line-item caps and declined to adjudicate the issue of laches on the pleadings, Sessions said. Gannett alleges it knew of, and complained to Google about, Enhanced Dynamic Allocation in 2014, nine years before filing its complaint in 2023. Gannett allegedly “discovered” that Enhanced Dynamic Allocation affected Gannett’s “sponsorship deals” five years ago, in 2018, she said. Gannett alleges Google began limiting the number of line items publishers could create in the ad server in 2017. “These claims are barred by the statute of limitations because Gannett knew of -- and indeed complained about -- the challenged practices more than four years before it filed its complaint,” she said.
U.S. District Judge Jacqueline Scott Corley for Northern California in San Francisco denied the FTC’s motion for a preliminary injunction July 10 to halt Microsoft’s Activision buy (see 2307110061) “despite agreeing with the FTC on key elements such as the relevant geographic and product markets for analysis,” said the agency’s 9th U.S. Circuit Court of Appeals mediation questionnaire Monday (docket 23-15992) in support of its appeal of Corley’s denial. Corley found that the combined firm “would have the ability to foreclose its rivals, and would likely offer Activision content exclusively on Microsoft’s Game Pass service, but not on rival services,” said the questionnaire. The judge nevertheless denied relief because she views Microsoft as “lacking the post-merger incentives to foreclose rivals” in the consoles and cloud gaming markets, and because she viewed the deal, on balance, as “procompetitive in the multi-game library services market,” it said. She also deemed Microsoft's post-complaint “side deals” and offers “as negating the incentive to foreclose and thus sufficient to remedy any substantial lessening of competition as a result of the merger,” it said. Though Corley’s order denying the injunction “acknowledged that the record contains at least conflicting evidence of anticompetitive effects,” she found that the equities “do not support preliminary relief,” it said. On appeal, the principal issues are likely to be the district court's “misapplication” of Section 13(b)'s legal standard for relief and the “sufficiency” for preliminary relief of the court's finding of foreclosure in the multi-game library services market, said the questionnaire. Another key issue on appeal will be Corley’s erroneous "counting" of the defendants' “proffered remedies” as part of the FTC's "likelihood of success" analysis, it said.
U.S. District Court Judge Edward Davila for Northern California ordered the FTC and Meta to submit a joint statement within 14 days, setting forth their positions and supporting bases as to whether the court’s Jan. 31 order (see 2302010003) denying the commission’s motion for preliminary injunction against Meta’s purchase of virtual reality company Within Unlimited buy should remain under seal. Davila’s order on intent to unseal (docket 5:22-cv-04325) was filed Monday in U.S. District Court for Northern California in San Jose. The court initially posted the order under seal and subsequently posted a public version with redactions in March (see 2303160046). On Monday, Davila directed the parties to consult with third parties whose confidential information is implicated by the sealed and redacted portions of the January order. Nonparties involved in the order include Alphabet, Apple, ByteDance, Eric Janszen, Equinox, HTC, Lululemon, Peloton, Sony and Valve. Davila rejected for lack of evidence the FTC’s potential competition arguments that Meta’s Within acquisition would lessen competition in the “relevant market” for dedicated VR fitness apps. Meta bought the VR company in February for a reported $400 million.
U.S. District Judge Jacqueline Scott Corley for Northern California in San Francisco denied the FTC’s motion for an injunction enjoining Microsoft’s Activision Blizzard buy pending the outcome of the commission’s appeal to the 9th U.S. Circuit Court of Appeals, said her signed order Thursday (docket 3:23-cv-02880). The FTC’s motion earlier Thursday said the injunction was necessary “to preserve the status quo” while the 9th Circuit reviews Corley’s July 10 opinion denying the FTC’s request for a preliminary injunction (see 2307110061). Microsoft and Activision, in an opposition filing Thursday, urged Corley to reject the FTC’s motion.
The June 26 motion of Nexstar and sidecar companies Mission Broadcasting and White Knight Broadcasting to dismiss DirecTV’s retransmission consent antitrust complaint (see 2306270051) “reads as if it were a motion for summary judgment on a full factual record,” said DirecTV’s memorandum of law in opposition Thursday (docket 1:23-cv-02221) in U.S. District Court for Southern New York in Manhattan. In an attempt to escape the complaint’s 225 paragraphs “of well-pleaded evidentiary facts supporting a plausible inference of a conspiracy,” the defendants rely on what they call “facts” that are alleged “nowhere” in the complaint, said DirecTV. They repeatedly assert, for example, that their “supracompetitive price demands” were caused by rising content costs “rather than conspiracy,” it said. They likewise ask the court to reject, rather than accept as true, “many of the facts that are alleged in the complaint,” it said. That includes “direct evidence” confirming that Nexstar, the conspiracy’s “puppet master,” received highly confidential rate information from its sidecars, it said. The defendants’ failure to abide by the “strictures” of Rule 12(b) is underscored by their failure to acknowledge even once in their 50-page brief “the controlling legal precedent for pleading an antitrust conspiracy at this stage of litigation,” said DirecTV. They “fare no better” with their attempts to have the court dismiss DirecTV’s state law claims for breach of contract and tortious interference, it said. Those “likewise turn on highly factual arguments” and a “misreading” of the complaint’s allegations, it said. Their factual arguments “will simply have to await another day,” it said. “Their motion to dismiss should be denied in full.”
Local TV advertisers in an antitrust suit against Hearst Television, Gray Television, Nexstar, Tegna and about a dozen other media companies asked the court to deny Tegna, Raycom and Meredith’s motion for an extension to produce advertiser and agency contact information. If the court provides a reprieve of the Thursday deadline, plaintiffs Fish Furniture, Hunt Adkins, One Source Heating & Cooling, and Thoughtworx asked that it not extend beyond Friday, said the Thursday response (docket 1:18-cv-06785) in U.S. District Court for Northern Illinois in Chicago. Plaintiffs also asked the court to order movants to cover their costs for responding to movants’ three motions, plus costs incurred in delaying the notice program, it said. On June 15, the court ordered movants to produce customer contact information within 21 days for purposes of providing settlement notice. “Rather than immediately notify Plaintiffs or the Court that production of such information would purportedly take at least 60 days -- a fact Movants have apparently known for months -- they sat silently on their hands,” said the response. The information the court ordered movants to produce “is basic customer contact information already produced by every other Defendant in the case and regularly produced by defendants in antitrust cases like this one,” it said.
A motion last week by non-settling defendants to reconsider, vacate and/or stay orders on preliminary approval of settlements and notice in Local TV Advertising Antitrust Litigation shows “a fundamental misunderstanding of antitrust settlements and the approval and notice process” and should be denied, said local advertising plaintiffs’ response (docket 1:18-cv-06785) Wednesday in U.S. District Court for Northern Illinois in Chicago. The June 26 motion by Tegna, Griffin Communications, Meredith, Sinclair, Gray Media, E.W. Scripps, Nexstar Media and Tribune Broadcasting, “which accuses the Court of failing to follow Seventh Circuit precedent and Rule 23 in preliminarily approving four settlements,” seeks to “trample on” the due process rights of settlement class members; “deprive settlement class members of valuable and timely cooperation” from settling defendants CBS, Fox, Cox Media and ShareBuilders; ignores the court’s prior ruling on the direct purchaser status of advertising agencies; and “asserts harm that is purely speculative and no different from that incurred by every other non-settling defendant in an antitrust case,” plaintiffs said. The non-settling defendants also moved the court last week for an order staying dissemination of notice to the settlement classes until the court has given non-settling defendants a chance to be heard on plaintiffs’ motion for preliminary approval of the proposed settlements. The movants, as non-settling defendants, “lack standing to object to the settlements, including certification of the settlement classes," said plaintiffs’ response. Even if movants could overcome the standing bar, they haven't identified “any manifest error by the court" that would warrant reconsideration of the preliminary approval and notice orders, nor have they identified hardship or inequity that would warrant a stay, it said. CBS, Fox, Cox Media and ShareBuilders agreed in May to a $48 million settlement with advertisers in the lawsuit stemming from a 2018 DOJ investigation of ad price collusion that arose during inquiries into the failed Sinclair/Tribune deal (see 2305300073).