Bona Law-Repped Law Profs Urge Second Circuit to Unplug Injunction Barring New Sports-Focused Live-Streaming Service Competitor in Disney/FuboTV Case
October 4, 2024
San Diego, Sept. 30—The Southern District of New York was wrong to grant an injunction barring Disney/Hulu/ESPN, Warner Bros. Discovery, and the Fox Corporation from launching Venu, a new sports-focused live-streaming service joint venture that would have competed with plaintiff FuboTV’s live-streaming service, argued the International Center for Law & Economics (ICLE) and twelve individual scholars of law & economics in an amici curiae brief filed on their behalf September 26, 2024 by Bona Law.
Bona Law lawyers Aaron Gott and Jarod Bona are representing the group, whose professional interests lie in both studying and developing antitrust jurisprudence and protecting market competition.
The amici scholars argue in their brief that the district court should never have granted the injunction because Fubo lacks antitrust injury—and in fact, its claims bear striking resemblance to the facts in a seminal case on the topic: Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. In that case, the U.S. Supreme Court said that “[t]he antitrust laws . . . were enacted for the protection of competition, not competitors.” Similar to that case, Fubo argued that facing more competition, not less, was going to cause it injury, the scholars argued in the brief.
The scholars also addressed other aspects of the district court’s decision that they also found problematic. For example, they argued that the district court flouted the Supreme Court’s limits on price squeeze claims, misapplied inapposite and likely outdated cases on joint ventures, condemned as fishy a run-of-the-mill joint venture non-compete clause that was ancillary and necessary to the transaction, and presumed economically irrational behavior would fill the gap created by the injunction.
ICLE is a nonprofit, non-partisan global research and policy center focused on building the intellectual foundations for sensible, economically grounded policy. It promotes the use of law and economics methodologies to inform public policy and has longstanding expertise in analyzing antitrust laws and their interaction with intellectual property. ICLE routinely files amicus briefs in major litigation involving key issues of law, economics, competition, and technology.
Courts allow third parties with no direct interest in a case to file amicus curiae briefs in support of a party. Though they are sometimes allowed at the district court level, they are expressly allowed under federal appellate and U.S. Supreme Court rules. Amicus curiae is Latin for “friend of the court.” Bona Law files amicus curiae briefs on behalf of businesses, business organizations, and nonprofit organizations. You can learn more about amicus briefs and why you may want to file one here.