Per Nielsen, Cumulus Media’s antitrust lawsuit is meritless – just a price fight dressed up as litigation. In a court filing made October 27, the ratings giant insists Cumulus “’can easily avoid’ irreparable harm by ‘accepting [any] offer [Nielsen] has made.’”
In a letter to US District Judge Jeannette A. Vargas, Gibson, Dunn & Crutcher LLP partner Joshua Lipton wrote, on behalf of Nielsen, that, “There is no emergency here… This is a dispute over an ongoing contract renewal negotiation. Nielsen offered Cumulus – before Cumulus filed its suit – a half dozen different proposals, including for stand-alone products without the alleged ‘tie.’ Cumulus simply does not want to pay what Nielsen is charging. That is not an antitrust issue.”
Lipton told the court, “No threat of irreparable harm exists here. Indeed, Cumulus’s suit is nothing more than a contract negotiation masquerading as an antitrust case.”
In its lawsuit, Cumulus accuses Nielsen of wielding monopoly power to strangle competition and coerce broadcasters into buying products they don’t want. The company says Nielsen’s “tying policy” forces it to pay inflated prices or risk crippling losses across its national network, Westwood One.
“The problem,” the Nielsen filing continues, “is that Cumulus does not want to pay what it has been paying for three years, or the offered renewal prices.”
Lipton argued that Cumulus’s alleged injuries are “entirely economic.” He cited precedent that “to the extent the Court determines otherwise, it is one that is solved by damages, not equitable relief.” The letter adds, “Cumulus’s claim that it could incur unspecified reputational harm if it rejects Nielsen’s offers exposes Cumulus’s real motive: to drive down prices via ‘lawfare.’ However, Cumulus cannot reject contract terms to ‘manufacture its own exigency.’”
Nielsen maintains it has already offered to extend the current agreement beyond its December 31 expiration, calling that “a classic example of maintaining the status quo and would moot the need for an injunction.” Lipton said Cumulus instead seeks “a bespoke package at a price of its choosing” and that “preliminary injunctions aim to keep matters as they are rather than shift things to the way one party would like them to be.”
Nielsen’s proposed schedule for the case would cap each side at a single four-hour deposition, limit document discovery to narrowly identified materials, and close fact discovery by November 18. Under the proposal, any hearing would be held the week of December 15.
“The Court should reject Cumulus’s gamesmanship,” Lipton concluded. “Cumulus’s intent here is clear: transform a contract renewal negotiation into a fabricated antitrust claim, seek improper relief in lieu of actually preserving the status quo (as Nielsen has offered), and then use burdensome, unnecessary discovery to pressure Nielsen into offering contract terms more to Cumulus’s liking.”
Judge Vargas is expected to set a discovery and hearing schedule in the coming days.
