The judge who blocked Disney, Fox Corp. and Warner Bros Discovery from launching streaming service Venu Sports after a lawsuit by Fubo wants the parties to return to court in a bit more than two weeks.
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U.S. District Court Judge Margaret Garnett issued an order Monday for a pretrial conference in New York to be held September 12. On the agenda will be the defendants’ pending motion to dismiss the suit; details of discovery yet to be completed; and the prospects of a jury trial beginning by February 2025.
Garnett earlier this month granted Fubo’s request for a preliminary injunction barring Venu from being launched; the overarching antitrust complaint remains pending.
Meanwhile, Disney, Fox and WBD have filed a motion seeking an expedited process in the U.S. Court of Appeals for the Second Circuit. They maintain that “time is of the essence” and that Garnett’s decision contained “multiple legal errors” to be addressed. The Venu joint venture members are “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,” the motion filed Friday argued.
Since forming the JV last February, per the motion, the companies have spent $74 million to prepare Venu for launch. That figure includes personnel and technology costs but excludes outlays for research and analysis, legal fees and other corporate expenditures.
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Fubo responded with a motion Monday, saying it would not oppose an accelerated briefing schedule in the appeal. The company, though, also called out what it described as “numerous misstatements, unsupported factual assertions, and mischaracterizations of the district court’s decision” by its opponents.
Despite claims of steep financial losses and employees in limbo, Fubo asserts that the media companies presented “zero” evidence or testimony supporting that kind of downside risk. The “hyperventilation” by Disney, Fox and WBD “over the careful, considered 69-page opinion of the district court is also misguided,” Fubo’s motion went on to say. “The district court’s decision is based on settled precedent in the Second Circuit, full consideration of the facts presented by both sides, and numerous credibility determinations that should be accorded deference.” In addition, the motion added, the district court largely district court relied on the defendants’ “own documents and testimony from their own witnesses” in reaching its decision.
The injunction ruling in Fubo’s favor sent shockwaves through the media world given the ever-larger role of live sports and streaming in the overall ecosystem and the David-against-Goliath nature of the case. While Fubo has grown to almost 1.5 million subscribers, it is well below the scale of internet pay-TV leaders YouTube TV and Disney’s Hulu + Live TV. If it were to prevail at trial, the economic model of TV distribution established over decades could subject to sweeping revisions.
For WBD, the August 16 ruling extended a summer slump, after the company lost NBA rights (though it has filed a last-ditch lawsuit against the league, asserting its right to match Amazon’s offer for a package of games). Venu’s failure to launch would wipe out a potential lifeline for networks like TNT and TBS, which are facing significant challenges to retaining distribution. In its most recently quarterly earnings report, WBD cited the NBA loss in taking a $9.1 billion write-down of the value of its cable networks.
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