DirecTV Calls Nexstar’s Looming Motion to Dismiss a ‘Delay Tactic’
Nexstar’s anticipated motion to dismiss DirecTV’s antitrust complaint (see 2305210001) is a “meritless delay tactic,” and the court should deny Nexstar leave to pursue it, DirecTV told U.S. District Judge Paul Crotty for Southern New York in a letter Wednesday (docket 1:23-cv-02221). DirecTV alleges Nexstar and its broadcast sidecars Mission and White Knight are colluding to set retransmission consent fee prices. Nexstar told Crotty the complaint should be dismissed for multiple reasons, including lack of Article III standing.
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DirecTV’s March 15 complaint “alleges a straightforward antitrust conspiracy in considerable detail,” DirecTV told the judge. Nexstar is asking the court “to ignore well-pleaded facts and resolve inferences in Nexstar’s favor, which is impermissible on a motion to dismiss,” it said.
DirecTV isn’t alleging speculative or future injury, as Nexstar argues, it told the judge. The complaint alleges DirecTV “already suffered substantial lost profits in the form of lost subscribers flowing directly” from the “output-reducing conspiracy” waged by Nexstar and its sidecars, it said. Nexstar ignores these allegations and argues DirecTV didn’t suffer antitrust injury because it didn’t pay the allegedly anticompetitive rates Nexstar and its sidecars requested, it said.
But courts in the Southern District of New York have repeatedly said lost profits and the payment of inflated prices are two conceptually different measures of damages for antitrust injuries and that a claim for lost profits can constitute a cognizable antitrust injury from a price-fixing conspiracy, said DirecTV. Nexstar also suggests there’s “a more directly injured party but fails to mention who that party is,” it said: “There is none.”
Nexstar further argues DirecTV lacks standing because, regardless of any judgment, each defendant would continue to retain discretion whether to contract with DirecTV, said the company. But if DirecTV prevails in the lawsuit, Nexstar and its sidecars may be required to negotiate with DirecTV “without unlawfully colluding and illegally sharing information, as the antitrust laws and FCC regulations require,” it said. The court also may order Nexstar and its sidecars to compensate DirecTV “for its mounting lost profits,” it said.