- Speculative Damages and Causation Problems
Judge Grey dismissed Vitamin Energy partly because the plaintiff’s profit loss claims were speculative and failed to establish causation. Despite Vitamin Energy losing only 30% of profits at one retailer while maintaining $150,000 in annual sales, the court found this insufficient to demonstrate antitrust injury.
Newsmax faces similar causation issues. The complaint admits Newsmax launched in 2014 but attributes slow growth to Fox’s conduct without adequately distinguishing Fox’s alleged interference from normal competitive disadvantages facing new market entrants. The complaint’s reliance on internal Fox communications expressing concern about Newsmax (¶45) may actually support Fox’s argument that this reflects normal competitive vigilance rather than anticompetitive conduct.
Specific Legal Vulnerabilities in Newsmax’s Claims
Sherman Act Section 1 Claims (Unreasonable Restraint of Trade)
Newsmax alleges Fox imposes “explicit or tacit ‘no-carry’ provisions” and “drag-down provisions” that penalize distributors for carrying Newsmax (¶¶47-50). However, these claims suffer from several weaknesses:
