- Market Definition Issues: Newsmax defines the market as “right-leaning pay TV news” but courts may find this definition artificially narrow, particularly given streaming alternatives and digital news consumption
- Superior Product Defense: Fox could argue its dominance reflects superior programming, talent, and brand recognition developed over nearly three decades
- Consumer Choice Evidence: The complaint acknowledges other right-leaning outlets exist and compete, including OAN and various streaming alternatives
Procedural Advantages for Fox
Florida vs. Federal Precedent
While filed in Florida federal court, the case will apply federal antitrust law and Eleventh Circuit precedent. However, the Eleventh Circuit generally follows similar antitrust standing requirements as the Sixth Circuit’s NicSand framework, focusing on market-wide harm rather than competitor-specific injuries.
Motion to Dismiss Strategy
Fox will likely file a motion to dismiss targeting the same vulnerabilities Judge Grey identified in Vitamin Energy:
