Injunction Could Be Death Knell for Fubo or Venu
Both sides are crying catastrophe in Fubo’s antitrust lawsuit against Venu, and now the ball is in Judge Margaret Garnett’s court.
Is the sky falling in the antitrust lawsuit leveled by Fubo against the Venu Sports joint venture service? Both sides are bent on convincing U.S. District Court Judge Margaret Garnett that it is. This week, the two sides had their last opportunity to try to sway the judge in Fubo’s request for a preliminary injunction against Venu, and their post-hearing briefs both present pictures of doom and gloom if Judge Garnett should rule against them.
Key Details:
- Representatives for Disney, Fox, and Warner Bros. Discovery say the granting of an injunction would “terminate” Venu.
- Fubo says that without an injunction, it will lose so many customers to Venu that it will be insolvent by early 2025.
- Disney says it has offered Fubo the chance to craft smaller channel packages resembling Venu in the past, but the streamer declined.
In its post-hearing filing, Fubo summarized the points it has been making both in court and in public. It says that Disney, Fox, and Warner Bros. Discovery have engaged in anticompetitive practices for years, refusing to allow Fubo to sell a slimmed-down, sports-focused channel package while simultaneously forcing the streamer to carry channels it didn’t want to get popular, sports networks like ESPN and FS1.
Fubo says that the three companies “intend to create a monopoly in the skinny sports bundle market,” and that without the imposing of an injunction the company will run out of cash by the first quarter of 2025. The streamer cited data shared by ESPN which shows that most of the projected Venu customers are current subscribers to pay-TV distributors like Fubo, and says that it could lose as many as 400,000 customers to Venu by the end of 2024.
“Fubo will face insolvency absent an injunction,” the streamer’s brief says. “But there is literally no harm to multibillion media giants if [Venu] is delayed for some period of time while the merits of the case can be fully resolved.”
However, the conglomerates behind Venu disagree. “A preliminary injunction would terminate the joint venture,” WBD’s attorney Andrew Levander warned in an effort to communicate the perceived danger from his side.
Briefs from Disney, Fox, and WBD argue that because customers can create their own sports streaming bundles using various competing services like Paramount+ and Peacock, and because Disney is working on new ESPN streaming options and WBD has the Bleacher Report Sports add-on on Max, no such monopoly as alluded to by Fubo will exist.
Disney’s representatives also revealed that they had offered cable, satellite, and streaming multichannel video programming distributors (MVPDs) like Fubo the chance to craft smaller channel packages with their networks before, only to have the suggestion turned down. If the company can provide adequate proof of this, it would seem to strike at the very heart of one of Fubo’s key arguments. The three companies at work on Venu may have a hard time justifying the fight to continue building the streamer if they lose this injunction battle, as a trial could take months or even years to resolve.
Fubo
Fubo is a live TV streaming service with about 90 top channels that start at $79.99 per month. This plan includes local channels, 19 of the top 35 cable channels, and regional sports networks (RSNs). In total, you should expect to pay about $94.99 per month, after adding in their RSN Fee. Fubo was previously known as “fuboTV.”
When Will Judge Garnett Issue a Ruling?
Judge Garnett is expected to take several days, or perhaps weeks to make a final call on whether or not to grant Fubo’s injunction request. Disney, Fox, and WBD are planning to launch Venu by the end of August, and Fubo’s representatives said that the companies had a release date of Aug. 23 scheduled, though attorneys for the opposition declined to confirm that date.
The need for haste is not lost on Judge Garnett, who said that as she considered their arguments she would be “mindful of the calendar, I am very mindful the parties need certainty.”
That certainly sounds as if she intends to hand down a ruling before Aug. 23. If she does not rule before Venu launches to consumers, it could create a very messy situation in which people sign up for the streamer, and then see access restricted if the injunction is granted.
Both sides will have the right to appeal the injunction ruling to the 2nd Circuit if they lose, but in Venu’s case, that will still cause delays that potentially stretch on for months. They’re clearly hoping to avoid that outcome, but now the decision rests in the hands of Judge Garnett.
Venu Sports
Venu Sports is the planned live TV streaming service offering sports from ESPN, ESPN2, ESPNU, SECN, ACCN, ESPNEWS, ABC, FOX, FS1, FS2, BTN, TNT, TBS, and truTV. Programming from ESPN+ and on-demand content will also be available. Users will be able to watch NFL, NBA, MLB, and NCAA games. Subscribers can bundle the product with Disney+, Hulu, or Max. Venu’s launch is on hold thanks to a preliminary injunction.