In Fubo’s antitrust lawsuit against Disney, Fox and Warner Bros. Discovery, the pay-TV operator has told a federal judge it plans to bring to light sensitive details of carriage negotiations by the media giants over many years.
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Lawyers for both sides signed a joint letter to U.S. District Judge Margaret Garnett laying out certain priorities as the judge gets set to convene a pretrial conference on Thursday morning in her New York courtroom. One goal of the conference will be to establish a timeline for the jury trial, which Fubo sees as potentially starting by June 2025 and the defense no earlier than October 2025. The parties will also hash out the scope of discovery and depositions, among other details.
Last month, Garnett stunned the media industry by siding with Fubo and granting a preliminary injunction barring the launch of Venu Sports. The joint streaming venture had been planning to debut as football season was beginning, but doubt is growing about its chances to ever get off the ground. The sharply worded ruling was not just a rebuke of media companies already grappling with the wages of cord-cutting; in many analysts’ view, it threatens the very foundations of the traditional pay-TV bundle. As costly it was to not be able to launch Venu Sports on schedule, the outcome of the trial as well as the discovery process leading up to it could undermine media companies’ position in pay-TV negotiations worth billions of dollars a year.
Regardless of the injunction ruling, which the media companies have appealed, Fubo’s suit is aiming at a larger target: the bargaining approach of programmers, which the company says have forced it to carry less-desirable channels in order to gain access to the most coveted ones. The result, Fubo says, is higher prices for consumers. A similar theme lies at the heart of an ongoing distribution dispute between DirecTV and Disney, which has resulted in a blackout of 16 Disney networks since September 1. The Fubo/Venu case has been cited by DirecTV as an indication that Venu gave Disney an ulterior motive to avoid being flexible in talks with distributors, an assertion that Disney has refuted.
Thus far, lead Fubo attorney Mark Hansen writes in the letter, the two sides in the case as well as third parties have produced more than 515,000 documents and taken 28 depositions. The purpose of discovery to this point has been focused on efforts behind the Venu joint venture. Leading up to the jury trial, Fubo said, it plans to seek additional discovery about the defendants’ bundling practices and negotiations, including “most-favored nation” arrangements with certain distributors. MFNs, broadly speaking, require programmers to maintain similar terms with multiple distributors. The Venu JV, Garnett found in her ruling, was anti-competitive because it was the result of three sports powers pooling resources and wielding undue leverage in the marketplace.
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The defendants’ attorneys acknowledge in the letter that the discovery process at this stage will be considerably broader than it has been in the case to date. “Unlike the JV,” the letter notes, “each of the defendants has engaged, separately, in their own licensing practices, and these practices have existed for decades, and when Fubo entered the market in 2015, which means that discovery for those claims must start much earlier” than the discovery related to the preliminary injunction.
With so much additional ground to cover, Hansen expresses concern in the letter that Disney, Fox and WBD could “seek to delay and deflect via scorched-earth discovery and motion practice.”
Details around carriage talks are closely held despite the fact that they often involve public companies. Even the expiration date of a programming deal does not typically get formally disclosed and the financials or other terms of the agreements also are kept completely under wraps and not broken out in earnings reports. If the Fubo case proceeds to trial, it could result in a number of previously secret interactions becoming public, and a clearer view of the workings of the pay-TV ecosystem at a vulnerable moment.
As to the timeline for the case, Garnett has already indicated her eagerness for proceedings to move at a steady clip. Fubo warned the media companies in the letter against “obfuscation and foot-dragging,” but lead defense attorney Antony Ryan pointed to “the substantial and complex discovery that remains to be taken.” The defendants in the letter to the judge argued that a February 2026 trial start would still be relatively speedy by the standards of antitrust law, coming two years after the initial complaint was filed by Fubo.
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