Nielsen says a federal appeals court invented a new way to sue over pricing, and it wants the Supreme Court to shut it down. The company has asked the justices to review what it calls an “egregiously wrong” Second Circuit ruling that kept an antitrust injunction in place over its dealings with Cumulus Media.
The ratings giant filed a petition for a writ of certiorari, asking the Supreme Court to review the Second Circuit’s decision in its year-long antitrust fight with Cumulus Media.
The SCOTUS bid traces back to a preliminary injunction a district court granted Cumulus on December 30, which the Second Circuit affirmed on July 13. The appeals court denied Nielsen’s request for rehearing en banc on August 18, clearing the way for Nielsen to seek Supreme Court review.
At issue is a legal theory the Second Circuit called “constructive tying.” Nielsen sells local radio ratings and a national Nationwide report that aggregates the local data, and it offered Cumulus both bundled at a discount and Nationwide on a standalone basis, at prices no one disputes were below Nielsen’s costs. The Second Circuit held that the standalone price was so “exorbitant” compared to the bundle that Cumulus had “no choice” but to take it, making the offer an unlawful tie under the Sherman Act, even without any below-cost pricing.
Nielsen’s petition argues that puts the Second Circuit at odds with the Sixth and Ninth Circuits, which require proof that a price is the economic equivalent of selling below cost before finding liability. In its filing, the company notes the ruling has already spread beyond radio. It says attorneys in the Justice Department’s antitrust case against Live Nation and in ad-tech litigation against Google both cited the Second Circuit’s decision within days of it coming down.
A separate fight over enforcement is still playing out. On September 9, the district court ordered Nielsen to submit a new compliant pricing offer within 24 hours and set daily $50,000 sanctions for noncompliance; Nielsen appealed, and the Second Circuit administratively stayed that specific order on September 10, though the underlying injunction remains in effect. Nielsen’s opening brief in that fight is due September 30, with oral argument to follow.
