Fubo has settled with Disney but at least one of its subscribers has not and is pursuing a separate complaint against the media giant.
Cole Unger is seeking class action status for a suit in U.S. District Court in the Southern District of New York against Disney for a “multifaceted campaign to suppress competition in the market for live television streamed over the internet to paying subscribers” – or streaming live pay television (SLPTV).
“Disney’s ownership of ESPN, which domanted the market for broadcast licenses from the major professional sports associations, enables it to extract monopoly rents in the SLPTV market via anti-competitive tactics including,” the suit says, “forcing streaming services to carry Disney’s non-ESPN content in order to access ESPN [and] forcing streaming services to include ESPN, the nation’s most expensive content channel, as part of their base–or cheapest–package for consumers.”
Fubo itself had sued Disney along with Warner Bros. and Fox when they attempted to stand a joint venture called Venu Sports, combining their sports content into a so-called skinny bundle including ESPN — something Fubo had wanted to do that was nixed by the owners of the content in favor of their own JV. A judge in the case slapped a temporary in junction on Venu’s launch, declined a motion to dismiss and set the case for trial later this year.
Fubo settled its suit last week, paving the way for Venu Sports to debut, but the partners shuttered it anyway. It had lost momentum and risked new litigation from satellite broadcasters Dish and DirecTV, with the latter announcing a skinny sports bundle earlier today. Fubo is also going offer them.
The partners settled in part to avoid legal challenges to how they offer their content to pay TV providers as case would have tested “the industry’s long-standing practice of network owners bundling their desirable networks with their less desirable ones,” said MoffettNathanson analysts, a practice that generates key cash flow.
The settlement included an cash injection for Fubo and was announced in conjunction with a deal where Disney would merge its digital video pay TV service Hulu + Live TV with Fubo, owning 70% of the new expanded company.
The plaintiff and Class members seek “all forms of available relief under this statute, including actual damages, treble damages, and reasonable costs and attorneys’ fees.”
English (US) ·