Ninth Circuit Affirms Dismissal of Cable TV Bundling Antitrust Case

On March 30, the U.S. Court of Appeals for the 9th Circuit issued an opinion affirming the district court’s dismissal of a lawsuit against the major TV programmers (such as NBC Universal, Fox and Disney) and cable distributors (such as Time Warner Cable and DirecTV). The plaintiffs, who had sought to represent a class of all cable and satellite television subscribers in the U.S., alleged that the programmers exploit their market power by requiring distributors to sell channel bundles that include less desirable channels along with the “most desirable” networks in purported violation of the Sherman Act.

The 9th Circuit found that plaintiffs had not alleged that channel bundling injures competition and therefore had failed to state an antitrust claim. A prior panel of the 9th Circuit had issued a similar opinion in June 2011, but the 9th Circuit withdrew that opinion after one of the prior panelists passed away during the pendency of a petition for rehearing.

Munger, Tolles & Olson attorneys Glenn Pomerantz and David Dinielli, representing Fox Entertainment Group, were principal authors of the briefs on behalf of the programmers. Mr. Pomerantz presented the oral argument to the 9th Circuit.

Mr. Pomerantz is a partner in the Los Angeles office of Munger Tolles. His practice largely concerns disputes and counseling in the entertainment and media industries.

Mr. Dinielli is also a partner in Munger Tolles' Los Angeles Office. His practice has involved a wide variety of matters, including antitrust litigation and counseling, securities and shareholder litigation, class action defense and other commercial matters.