The media giant will file a petition by Sept. 4 seeking high court review of the antitrust lawsuit by rival Viamedia Inc., according to a filing Monday in the U.S. District Court for the Northern District of Illinois.
The case returned to the Chicago federal court for trial-level proceedings after it was revived in February by a divided U.S. Court of Appeals for the Seventh Circuit, which refused to reconsider its ruling.
The suit accuses Comcast of leveraging its control over its “interconnect”—the centralized advertising marketplace—to force rival telecoms to boycott the ad coordination services offered by Viamedia, its sole competitor in that arena.
Comcast also refused to let Viamedia use the interconnect at all, the suit says. The two tactics allegedly combined to drive it out of the TV ad placement markets in Chicago, Detroit, and Hartford, Connecticut.
The case was thrown out in 2018 by Judge Amy J. St. Eve, who now sits on the Seventh Circuit.. Viamedia failed to show that only an anti-competitive scheme could explain Comcast’s actions, St. Eve found at the time.
The Seventh Circuit reversed in a 141-page ruling, acknowledging that monopolists generally have no duty to deal with competitors. But they do under “limited circumstances,” especially when a company forsakes short-term profits solely to undercut a rival, Judge David F. Hamilton wrote for the majority.
Viamedia also offered enough evidence to move forward with its separate tying claim, the court found.
Judge Michael B. Brennan partly dissented. He agreed that Comcast should face liability for refusing to let Viamedia use the interconnect, but rejected the refusal-to-deal reasoning.
In its rehearing petition, Comcast said the majority wrongly extrapolated a broad rule from an “exceptional” Supreme Court decision that imposed antitrust liability only if there’s “no possible business reason” for its refusal to deal.
The argument, which cited a subsequent high court ruling, likely previews its forthcoming bid to have the justices take the case.
In the meantime, the case should be stayed, Comcast says in a joint filing docketed Monday.
Viamedia argues in the same filing that the suit should proceed to discovery.
Judge Charles R. Norgle Sr. is now overseeing trial-level proceedings.
Comcast is represented by Jenner & Block LLP and Davis Polk & Wardwell LLP. Viamedia is represented by Richard J. Prendergast Ltd. and Kellogg, Hansen, Todd, Figel & Frederick PLLC.
The case is Viamedia Inc. v. Comcast Corp., N.D. Ill., No. 16-cv-5486, joint status report filed 5/18/20.
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