Problematic Parallels Between the Cases
- Contractual Arrangements as Normal Business Practice
In Vitamin Energy, Judge Grey found that “a multi-year agreement between a supplier and a retailer amounts to legitimate competition, not an antitrust injury,” citing NicSand, 507 F.3d at 453. The court noted that Vitamin Energy itself had entered similar placement agreements with retailers, undermining claims that such contracts were inherently anticompetitive.
Similarly, Newsmax’s complaint acknowledges standard industry practices while labeling Fox’s identical behavior as anticompetitive. The complaint states that distributors “typically negotiate similar carriage agreements with the programmers, determining which channels to offer and the terms of carriage, including pricing and placement in various ‘tiers'” (¶20). This admission could prove fatal, as it suggests Fox’s conduct falls within normal industry parameters.
- Failure to Demonstrate Market-Wide Harm
The Vitamin Energy court emphasized that antitrust violations must “harm the competitive process and thereby harm consumers, as mere harm to one or more competitors will not suffice” (citing United States v. Microsoft Corp., 253 F.3d 34, 58 (D.C. Cir. 2001)).
Newsmax faces the same challenge. While claiming Fox’s conduct “impedes competition in the entire Right-leaning Pay TV News Market” (¶3), the complaint primarily documents Newsmax’s own business struggles rather than market-wide harm. The complaint acknowledges Newsmax still maintains distribution on various platforms, including recent addition to Hulu+ (¶53), suggesting the market remains accessible to competitors.
