Disney, Fox, WBD Push for Expedited Venu Sports Appeal

All parties involved in Fubo’s antitrust lawsuit against Venu Sports are due back in court soon. Venu was slated to make its debut to the public on Friday, Aug. 23, but a preliminary injunction issued by U.S. District Court Judge Margaret Garnett days earlier blocked Disney, Fox, and Warner Bros. Discovery from debuting their joint venture sports streaming service. Now, more details about the timeline of the antitrust case have been revealed, including a potential start date for the trial and how the injunction appeals process might proceed.

Key Details:

• Judge Garnett has called Fubo and Venu’s backers to a pretrial conference scheduled for Sept. 12.
• Disney, Fox, and WBD have filed a motion seeking an expedited appeals process, which Fubo has not resisted.
• If the appeal is not granted, a jury trial to determine whether Venu violates antitrust laws could start in February 2025.

The plaintiff and defendants in the Venu case are now due back in court for a pretrial conference, slated for Thursday, Sept. 12. Issues to be discussed at that conference include Disney, Fox, and WBD’s pending motion to dismiss the lawsuit — which is unlikely to be granted — as well as additional discovery details that have yet to be sorted out, and the potential of a jury trial beginning in February 2025.

Judge Garnett agreed with Fubo’s request for a preliminary injunction against Venu in mid-August, finding that if Venu were allowed to go on sale it could cause Fubo irreparable harm while the case regarding potential antitrust violations by Venu was considered in court. Disney, Fox, and WBD quickly appealed the injunction ruling, in hopes that they could launch Venu sometime before the end of the 2024-25 college and professional football seasons.

The three companies have now filed a motion requesting an expedited appeals process with the Second Circuit of the U.S. Court of Appeals. In that motion, they write that they’re “losing tens of millions of dollars that they have invested in a start-up business that has been blocked from coming to market, dozens of employees who were hired to work for Venu are left in limbo, and consumers are denied access to the innovative new product that Venu would have provided and the increased competition that would result from a new product offering.”

Fubo said it would not object to an accelerated appeals process, but took time out to try and poke holes in the arguments in Venu’s favor. Disney, Fox, and WBD are engaging in “hyperventilation” over the prospect of losing money on Venu and made “numerous misstatements, unsupported factual assertions, and mischaracterizations of the district court’s decision” in their request for an appeal.

Do Disney, Fox, WBD Stand a Chance of Winning Appeal?

The lack of objection from Fubo regarding a sped-up appeals process signals the live TV streaming service is none too worried about losing the appeal request. All throughout the proceedings, Fubo has been confident in its ability to win its case against Venu on merit, and that conviction has likely only been strengthened by the granting of a preliminary injunction.

As part of the testimony that surfaced as the two sides argued over an injunction, one Fox official revealed that Venu’s originators had each spent more than $400 million to bring the joint venture to life so far. The appeal is their last hope of getting Venu to market sometime before the end of the 2024-25 NFL season, which begins on Sept. 5.

The way the trial has gone so far, it would be a surprise to see Venu win its appeal. A loss in that process would mean that the streamer cannot be sold to customers until the conclusion of the jury trial at the earliest. If a jury finds that Venu does violate antitrust laws, that would essentially be the death knell of the service.