2nd Circuit Panel Questions Mission and DirecTV at Oral Argument

of conspiring with Nexstar – which operates Mission’s stations and includes Mission’s profits in its SEC filings -- to overcharge the MVPD in retrans negotiations. DirecTV appealed the case after the U.S. District Court for the Southern District of New York granted a motion from Mission to dismiss the case over DirecTV’s standing. During Monday’s oral argument, Wiley attorney Stephen Obermeier, representing Mission, argued that DirecTV lacked standing to bring the case because it didn’t ultimately reach a retransmission consent agreement with Mission and never paid the prices it said are anticompetitive (see 2407250038). Non-purchasers have historically not been granted standing in antitrust cases because their injuries are speculative, Obermeier told the court. The 2nd Circuit panel questioned that, with one judge suggesting that since DirecTV has reached retrans agreements with Mission previously and because there is only a small pool of MVPDs purchasing retrans rights, it is possible for DirecTV to show that it lost subscribers and income over the failure to reach a contract with Mission. That doesn’t match prior rulings, and ignores that the injury to DirecTV is caused by third parties – customers – electing not to subscribe, Obermeier said. Judge Richard Sullivan pressed DirecTV’s representative, King & Spalding attorney Paul Mezzina, about whether the company’s arguments would mean new entrants lack standing to bring such complaints. For example, if, hypothetically, Sullivan founded a competitor to DirecTV with private equity money, “you're saying that we'd be out of luck because we didn't have prior dealings?” Sullivan asked. Mezzina said that the hypothetical wasn't the case that he needed to win. DOJ also argued in favor of remanding the case Monday, saying that the lower court’s narrow ruling on what constitutes harm in price fixing cases should be reversed.