Viamedia, Inc. v. Comcast Corporation et al

Northern District of Illinois, ilnd-1:2016-cv-05486

RESPONSE by Plaintiff Viamedia, Inc. to Response {{320}} to Motion for Summary Judgment (CORRECTED)

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Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 1 of 54 PageID #:16663 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION VIAMEDIA, INC., Plaintiff, v. No. 16 C 5486 COMCAST CORPORATION and Honorable Amy J. St. Eve COMCAST SPOTLIGHT, LP, Defendants. VIAMEDIA, INC.'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT James M. Webster, III (pro ac vice) Aaron M. Panner (pro hac vice) Derek T. Ho (pro hac vice) Kenneth M. Fetterman (pro hac vice) Leslie V. Pope (pro hac vice) KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 jwebster@kellogghansen.com apanner@kellogghansen.com kfetterman@kellogghansen.com dho@kellogghansen.com Richard J. Prendergast Michael T. Layden Collin M. Bruck RICHARD J. PRENDERGAST, LTD. 111 W. Washington Street, Suite 1100 Chicago, Illinois 60602 (312) 641-0881 rprendergast@rjpltd.com mlayden@rjpltd.com cbruck@rjpltd.com Counsel for Plaintiff Viamedia, Inc. Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 2 of 54 PageID #:16664 TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii PAGE iii INTRODUCTION .......................................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 5 I. SPOT CABLE AD REP SERVICES AND INTERCONNECT SERVICES .................... 5 A. This case is about competition to sell Spot Cable Ad Rep Services to MVPDs ................................................................................................................... 5 B. Many MVPDs that seek Spot Cable Ad Rep Services also want to participate in important sales conduits called "Interconnects" ............................... 6 1. Comcast and Viamedia Compete to Sell Spot Cable Ad Rep Services to MVPDs ..................................................................................... 7 2. Comcast Has Used its Exclusive Control of the Supply of Interconnect Services in Chicago and Detroit To Secure Control of the Market for Spot Cable Ad Rep Services in Those DMAs ................ 7 3. Comcast Is Using its Exclusive Control of the Supply of Interconnect Services in Hartford to Secure Control of the Market for Spot Cable Ad Rep Services in That DMA ............................ 11 4. Comcast's Abuse of its Control of Interconnect Services in Chicago and Detroit Caused Viamedia to Lose Verizon's Business .................................................................................................... 11 5. Comcast's Abuse of its Control of Interconnect Services Prevented Viamedia from Obtaining Atlantic Broadband as a Client ......................................................................................................... 12 LEGAL STANDARD ................................................................................................................... 12 ARGUMENT ................................................................................................................................ 13 I. VIAMEDIA HAS PROFFERED EVIDENCE SUFFICIENT TO ESTABLISH LIABILITY ON ITS ANTITRUST CLAIMS .................................................................. 13 A. Evidence That Comcast Refused To Allow Viamedia To Represent Its MVPD Customers in Obtaining Services from Comcast-Controlled Interconnects Establishes Monopolization Under Sherman Act § 2 .................... 14 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 3 of 54 PageID #:16665 1. Interconnect Services Are Separate From Spot Cable Ad Rep Services. .................................................................................................... 15 2. Comcast Conditioned MVPDs' Purchase of Interconnect Services On Their Also Purchasing Spot Cable Ad Rep Services From Comcast. .......................................................................................... 18 3. Comcast's Exclusive Dealing Is Exclusionary Conduct That Violates Section 2. .................................................................................... 22 4. A Reasonable Jury Could Find That Comcast's Conduct, However Described, Was Exclusionary Within the Meaning of Section 2.................................................................................................... 23 B. Comcast's Contrary Position Distorts Refusal-to-Deal Law and Conflicts With the Record .................................................................................... 26 1. Comcast Did Not Merely Refuse to Deal With Viamedia. ....................... 26 2. Comcast's "Agency" Argument Distorts Viamedia's Claim.................... 26 3. Comcast's Remaining Liability Arguments Are Legally Erroneous and Factually Unsupported. ..................................................... 30 II. A REASONABLE JURY COULD CONCLUDE THAT COMCAST'S ANTICOMPETITIVE CONDUCT CAUSED VIAMEDIA'S DAMAGES ................... 33 A. An Antitrust Plaintiff May Recover Damages If It Proves That the Defendant's Anticompetitive Conduct Was a Material Cause of Its Harms and Provides the Jury a Reasonable Basis to Estimate Damages ............. 34 B. A Reasonable Jury Could Find That Comcast's Monopolistic Conduct Caused Viamedia's Damages ............................................................................... 36 C. A Reasonable Jury Could Credit Viamedia's Lost-Profit Projections and Estimate Damages .......................................................................................... 45 CONCLUSION ............................................................................................................................. 47 ii Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 4 of 54 PageID #:16666 TABLE OF AUTHORITIES PAGE Cases Aerotec International, Inc. v. Honeywell International, Inc., 836 F.3d 1171 (9th Cir. 2016)..................................................................................................................... 27, 28 American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317 (7th Cir. 1991) ....... 24 Associated Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519 (1983) ................................................................................................................. 33 Baldonado v. Wyeth, 2012 WL 2254215 (N.D. Ill. June 15, 2012).............................................. 46 BE &K Const. Co. v. Will & Grundy Ctys. Bldg. Trades Council, 156 F.3d 756 (7th Cir. 1998)........................................................................................................................... 44 Blades v. Monsanto Co., 400 F.3d 562 (8th Cir. 2005) ................................................................ 44 Constr. Aggregate Transp., Inc. v. Fla. Rock Indus., Inc., 710 F.2d 752 (11th Cir. 1983) .......... 43 Copeca, Inc. v. Western Aviation Servs. Corp., 653 F. Supp. 2d 141 (D.P.R. 2009) ................... 29 Cung Hnin v. TOA (USA), LLC, 751 F.3d 499 (7th Cir. 2014) .................................................... 21 Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) .......................... passim Emmons v. City of New York, 283 A.D. 2d 244 (N.Y. App. Div. 1st Dep't 2001)....................... 27 ES Development, Inc. v. RWM Enterprises, Inc., 939 F.2d 547 (8th Cir. 1991) .......................... 24 Exhaust Unlimited, Inc. v. Cintas Corp., 223 F.R.D. 506 (S.D. Ill. 2004) ................................... 44 Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391 (7th Cir. 1993) ............ 44 Grip-Pak, Inc. v. Illinois Tool Works, Inc., 651 F. Supp. 1482 (N.D. Ill. 1986) .............. 21, 34, 40 Hannah's Boutique, Inc. v. Surdej, 2015 WL 4055466 (N.D. Ill. July 2, 2015) .......................... 44 Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29 (7th Cir. 1976) .................... 21 In re Publ'n Paper Antitrust Litig., 690 F.3d 51 (2d Cir. 2012)................................................... 34 It's My Party, Inc v. Live Nation, Inc., 811 F.3d 676 (4th Cir. 2016) .......................................... 20 J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557 (1981) ..................................... 35, 45 iii Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 5 of 54 PageID #:16667 Jefferson Parish Hospt. Dist. v. Hyde, 466 U.S. 2 (1984) ............................................................ 14 Jamsports & Entertainment, LLC v. Paradama Productions, Inc., 2003 WL 1873563 (N.D. Ill. Apr. 15, 2003) ........................................................................................................... 23 JamSports & Entm't, LLC v. Paradama Prods., Inc., 2004 WL 2966947 (N.D. Ill. Nov. 24, 2004) ........................................................................................................... 40 King & King Enterprises v. Champlin Petroleum Co., 657 F.2d 1147 (10th Cir. 1981) ............. 35 Kleeman v. Rheingold, 614 N.E.2d 712 (N.Y. 1993) ................................................................... 27 Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416 (10th Cir. 1952) ............................................... 24 LePage's Inc. v. 3M, 324 F.3d 141 (3d Cir. 2003) ....................................................................... 24 Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999) ................................................................. 34 Litton Sys., Inc. v. AT&T Co., 700 F.2d 785 (2d Cir. 1983) ......................................................... 34 Locklin v. Day Glo Color Corp., 429 F.2d 873 (7th Cir. 1970) ................................................... 35 Mid–America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353 (7th Cir. 1996) ................. 45 Novell, Inc. v. Microsoft Corp., 731 F.3d 1064 (10th Cir. 2013) ................................................. 25 Photovest Corp. v. Fotomat Corp., 606 F.2d 704 (7th Cir. 1979) ................................................ 24 Pneuma-Flo Sys., Inc. v. Universal Machinery Corp., 454 F. Supp. 858 (S.D.N.Y. 1978) ......... 27 Pugh v. City of Attica, 259 F.3d 619 (7th Cir. 2001) .................................................................... 12 Reifert v. South Cent. Wis. MLS Corp., 450 F.3d 312 (7th Cir. 2006) ......................................... 21 Rossi v. Standard Roofing, Inc., 156 F.3d 452 (3d Cir. 1998)...................................................... 43 Rucinski v. Torian Plum Condo. Owners Ass'n, Inc., 2012 WL 3938822 (D. Colo. Sept. 10, 2012) .......................................................................................................... 45 Schine Chain Theatres, Inc. v. United States, 334 U.S. 110 (1948) ............................................. 24 Schor v. Abbott Laboratories, 457 F.3d 608 (7th Cir. 2006) .................................................. 31, 32 State of Illinois ex rel. Hartigan v. Panhandle Eastern Pipe Line Co., 730 F. Supp. 826 (C.D. Ill. 1990) ............................................................................................. 24 iv Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 6 of 54 PageID #:16668 The PrivateBank & Tr. Co. v. Progressive Cas. Ins. Co., 2004 WL 1144048 (N.D. Ill. May 18, 2004) ........................................................................................................... 12 Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317 (4th Cir. 1995)........ 22 Times-Picayune Publ'g Co. v. United States, 345 U.S. 594 (1953) ....................................... 18, 29 Trabert & Hoeffer, Inc. v. Piaget Watch Corp., 633 F.2d 477 (7th Cir. 1980) ........................ 3, 35 United States v. Griffith, 334 U.S. 100 (1948).............................................................................. 23 United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) .................................................. 21 Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) .................................................................................................................. 29 Will v. Comprehensive Accounting Corp., 776 F.2d 665 (7th Cir. 1985)..................................... 20 Zampatori v. United Parcel Service, 479 N.Y.S.2d 470 (N.Y. Sup. Ct. 1984) ............................ 27 Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969)......................................... 34 Rules Fed. R. Civ. P. 56(a) ..................................................................................................................... 12 Fed. R. Evid. 701 .......................................................................................................................... 44 Other Authorities 3B Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 777a (4th ed. 2015) .............. 23, 25 10 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1752 (3d ed. 2011) .............. passim 10 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1748 (3d ed. 2011) ..................... 30 10 Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law ¶ 1767 (3d ed. 2011) ..................... 32 2A N.Y. Jur. 2d Agency §§ 277, 398 (2018) ................................................................................ 27 Restatement (Second) of Agency §§ 1-2 (1958)........................................................................... 27 v Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 7 of 54 PageID #:16669 INTRODUCTION This antitrust case represents Viamedia's effort to fight back against Comcast's exclusionary anticompetitive behavior in the spot cable advertising industry. Discovery has provided evidence of the key facts that the Court held would, if proven at trial, show that Comcast violated Section 2 of the Sherman Act. When it denied Comcast's motion to dismiss, this Court set out the key factual allegations that would support a finding of such a violation. Those allegations are all now established by record evidence. The sale of spot cable advertising – the two to three minutes per hour that cable networks make available to cable companies and other video distributors (known as multichannel video programming distributors or "MVPDs") to sell – is a multi-billion dollar business nationwide. In 2001, plaintiff Viamedia launched its business of representing MVPDs in the sale of spot cable advertising. Viamedia's MVPD partners are typically smaller companies, many of which compete for subscribers against large incumbent MVPDs like Comcast. As the lone independent Spot Cable Ad Rep that regularly competes with those large incumbent MVPDs, Viamedia not only sells ads on its partners' behalf but it also helps to promote their brands in order to attract subscribers. In 2002 – before Comcast had itself entered the Spot Cable Ad Rep business – Viamedia began participating in the industry co-ops ("Interconnects") in Chicago and Detroit on behalf of two partners, WOW! and RCN. Interconnects make it possible for an advertiser to purchase spot cable advertising that is displayed simultaneously on all participating cable systems within a metropolitan area. Interconnects typically seek to attract participation by all MVPDs in a market so that the MVPDs can compete against broadcasters for regional advertising dollars. The record evidence shows that, by 2012, Viamedia's future was bright: it represented MVPDs with 4.7 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 8 of 54 PageID #:16670 million subscribers, and had in revenue, in EBITDA, and more than 450 employees. Then, in 2012, the manager of the Chicago and Detroit Interconnects, Comcast, excluded Viamedia and its partners WOW! and RCN. Comcast took that step for one reason: to drive Viamedia from the market for Spot Cable Ad Rep Services so that Comcast could take over the ad sales operations of its competitors WOW! and RCN. Deprived of revenues from sales through the Interconnects, WOW! and RCN were effectively compelled to switch their business to Comcast, giving Comcast a monopoly over the markets in Chicago and Detroit. A similar scenario played out in 2015 in Hartford, where Frontier's subscribers had long been part of the Interconnect managed by Comcast. When Frontier chose Viamedia to run its spot cable ad sales business, Comcast prevented Viamedia from participating in the Hartford Interconnect on behalf of Frontier. As a result, Viamedia and Frontier do not receive Interconnect revenues, nor do Frontier subscribers received ads placed through the Interconnect. By refusing to permit any MVPD represented by Viamedia to participate in Comcast-controlled Interconnects, Comcast has forced other MVPDs as well to turn over their inventories of spot cable advertising to Comcast. The record evidence thus confirms the very anticompetitive conduct alleged by Viamedia in its complaint and held to state a claim in this Court's denial of Comcast's motion to dismiss. The demonstrated impact of this anticompetitive conduct on Viamedia's business has been dire. Its revenues have been cut nearly in half; its earnings have fallen by two-thirds, and its MVPD partners account for less than half the number of subscribers as in 2012. And Viamedia has been hobbled in its efforts to compete – in part because MVPDs have expressed concerns about Viamedia's ability to survive Comcast's assault. 2 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 9 of 54 PageID #:16671 Viamedia is entitled to a trial on its claims because discovery has provided evidence of the key facts that the Court held would, if credited by a jury at trial, show that Comcast violated Section 2 of the Sherman Act. When the Court denied Comcast's motion to dismiss Viamedia's tying and exclusive dealing theories of liability, it summarized Viamedia's central allegation of competitive harm: "By allegedly forcing customers – in this case, MVPDs – to accept Comcast Spotlight's representation services, Viamedia and representation firms like it cannot compete in the spot cable advertising market in areas where Comcast controls the Interconnect." Memorandum Op. and Order at 23 (ECF No. 36, Nov. 11, 2016). The Court then explained how Comcast allegedly did so: it "conditioned access to the Interconnects in which it exercises exclusive control to MVPDs' acceptance of Comcast Spotlight's services" as their spot cable advertising representative. Id. at 26. And the Court detailed how that alleged conditioning would violate Section 2 – in short, if by that conditioning Comcast used its monopoly power over Interconnects to foreclose competition in a distinct market for spot cable advertising representation services. See id. at 25-31, 33-34. Record evidence now supports each allegation. Comcast excluded Viamedia and its MVPD partners from certain Comcast-operated Interconnects as part of a broader scheme to secure a monopoly in the relevant markets proves that by doing so Comcast improperly constrained their choice of advertising representative – effectively requiring those MVPDs to end their long relationships with Viamedia and instead to partner with Comcast, their dominant competitor. Section 2 prohibits just that sort of "willful acquisition or maintenance" of monopoly power. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481 (1992). 3 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 10 of 54 PageID #:16672 Viamedia also has shown that Comcast's conduct caused it to suffer severe financial harm. When Comcast effectuated its tie by excluding Viamedia and its partners from the relevant Interconnects, Viamedia lost revenue that it otherwise would have received under its existing agreements. Based on extensive analysis of its historical relationships with its MVPD partners and the substantial difference that continued Interconnect access would have made to Viamedia ability to compete, Viamedia also projects that it would have won certain contracts that, absent Interconnect access, it lost. Given the "axiom[] that damages in [an antitrust] case are rarely susceptible of the kind of concrete, detailed proof of injury available in other contexts," Viamedia's evidence is sufficient to give the jury a reasonable basis to estimate damages. Trabert & Hoeffer, Inc. v. Piaget Watch Corp., 633 F.2d 477, 484 (7th Cir. 1980). Comcast's contrary arguments are grist for the trial mill, not a basis for judgment as a matter of law. The evidence shows that Comcast's core liability theme – that Viamedia has merely repackaged the refusal-to-deal theory that the Court dismissed – is incorrect for the same reasons the Court identified when it otherwise denied Comcast's motion to dismiss: Comcast did not just refuse to deal with Viamedia, but also improperly constrained MVPDs' choice of advertising representatives by denying them access to the Interconnect as long as they purchased Spot Cable Ad Rep Services from Viamedia. See Memorandum Op. and Order at 38 (ECF No. 36). As for the question whether Comcast's actions caused Viamedia's damages, At a minimum, this raises another question of fact that only a jury can resolve. 4 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 11 of 54 PageID #:16673 Finally, Comcast's criticisms of Viamedia's damages calculations conflict with many cases that allow plaintiffs to recover based on reasonable, even if inexact, damages estimates. Any remaining factual disputes about the amount of harm Comcast inflicted on Viamedia are not for the Court to resolve under Rule 56, but for the jury to resolve at trial. Comcast's motion should be denied. FACTUAL BACKGROUND I. SPOT CABLE AD REP SERVICES AND INTERCONNECT SERVICES A. This case is about competition to sell Spot Cable Ad Rep Services to MVPDs MVPDs purchase programming from cable networks – like ESPN and FX – which they distribute to subscribers. Typically, MVPDs contract with programmers for the right to sell two or three minutes of advertising time per hour – known as "spot cable" availabilities or "avails." (The remaining advertising time is sold by the programmers.) 56.1 Response ¶¶ 6-7. Generally speaking, Spot Cable Ad Rep Services involve managing MVPDs' inventories of spot cable advertising avails. See 56.1 Response ¶ 7; SAF ¶¶ 1-2, 9. A portion (25%) of the 2-3 minutes are devoted to marketing spots to promote the sale of the MVPD services (premium cable, broadband Internet access, telephony and, when available, home security). SAF ¶ 5. As explained below, some spot cable avails may be sold through an "Interconnect" to be displayed on multiple providers' systems throughout a metropolitan area known as a Designated Market Area or "DMA". And some avails are sold to genuinely local advertisers – a restaurant, dentist, or furniture store – to be displayed within a more targeted area (called a "local zone"). When a Spot Cable Ad Rep represents an MVPD on a "full turnkey" basis, the representative has the exclusive right to manage and sell all that MVPD's avails in the relevant DMAs. SAF ¶ 2. Rival Spot Cable Ad Reps compete along a number of dimensions to secure MVPDs' business. One is price – that is, a "revenue share" (a percentage split of advertising revenue 5 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 12 of 54 PageID #:16674 between the MVPD and the Spot Cable Ad Rep), together with any minimum revenue guarantee. 56.1 Response ¶¶ 38-41. But price is not the only factor in MVPDs' decisions about which firm to hire. First, because the nature of the service requires MVPDs to share competitively sensitive information and cooperate with their Ad Rep, MVPDs are reluctant, all else equal, to work with a Spot Cable Ad Rep that is affiliated with a rival MVPD. SAF ¶ 7. Second, Spot Cable Ad Reps compete to offer services of higher quality – for example, by offering MVPDs better technical capabilities or more effective salespeople. See SAF ¶¶ 6, 8. Third, if an MVPD has established a good relationship with a Spot Cable Ad Rep, the MVPD is less likely to choose a rival – both because switching costs can be substantial, see SAF ¶ 60, and because the businesses' working relationship has made the Spot Cable Ad Rep a known partner (and their competitors unknown partners of uncertain quality), see SAF ¶¶ 61-62. B. Many MVPDs that seek Spot Cable Ad Rep Services also want to participate in important sales conduits called "Interconnects" Typically operated by the dominant MVPD in a given DMA, an Interconnect is a platform that allows an advertiser to display an advertisement on multiple MVPD systems within a DMA simultaneously. See 56.1 Response ¶¶ 15-16, 18. The Interconnect operator provides various services including pooling spot ad inventory from multiple MVPDs on a DMA-wide basis and selling and/or coordinating the sale of DMA-wide spot cable avails. See, e.g., 56.1 Response ¶ 17. If an MVPD wants to participate in such DMA-wide advertising sales, these "Interconnect Services" are essential: advertisers that want DMA-wide coverage are unlikely to buy advertising time from an individual MVPD (particularly one with relatively limited subscribership) outside the Interconnect. SAF ¶ 22. For those MVPDs (and their Spot Cable Ad Reps, if any), participating in sales of spot cable advertising through Interconnects in large DMAs is a substantial source of revenue. SAF ¶ 20; see also SAF ¶¶ 20-23. 6 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 13 of 54 PageID #:16675 Interconnect Services are separate from Spot Cable Ad Rep Services. See SAF ¶¶ 63-71. Some MVPDs buy Spot Cable Ad Rep Services for a portion of their inventory of spot cable avails from an independent firm, while receiving Interconnect Services for another portion of their inventory from the MVPD that controls the Interconnect. See SAF ¶¶ 64-66. Others buy Interconnect Services without buying Spot Cable Ad Rep Services (instead selling their non- Interconnect avails with an in-house sales force). SAF ¶ 68. And still others buy Spot Cable Ad Rep Services, but forgo Interconnect Services altogether. SAF ¶ 69. 1. Comcast and Viamedia Compete to Sell Spot Cable Ad Rep Services to MVPDs Comcast is an MVPD and, under the Comcast Spotlight name, also provides ad sales for Comcast's own inventory of spot cable avails as well as Spot Cable Ad Rep Services to other MVPDs. 56.1 Response ¶ 5. Viamedia is Comcast's key competitor in the market for Spot Cable Ad Rep Services. SAF ¶ 9. It is the largest advertising sales representative that is "independent" – that is, unaffiliated with an MVPD. 56.1 Response ¶ 13; SAF ¶ 9. In many DMAs, including three of particular relevance to this case – Chicago, Detroit, and Hartford – Comcast also operates the Interconnects, and so is the monopoly supplier of Interconnect Services. See SAF ¶ 10. As explained below, Comcast has used its exclusive control over of the supply of Interconnect Services to gain control of the market for Spot Cable Ad Rep Services in Chicago and Detroit, and it is attempting to do the same in Hartford. See SAF ¶¶ 10-43. 2. Comcast Has Used its Exclusive Control of the Supply of Interconnect Services in Chicago and Detroit To Secure Control of the Market for Spot Cable Ad Rep Services in Those DMAs a. For years, Viamedia provided Spot Cable Ad Rep Services to two MVPDs, WOW! and RCN – WOW! in Chicago and Detroit, RCN in Chicago. See SAF ¶¶ 31-32(RCN); id. ¶¶ 7 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 14 of 54 PageID #:16676 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 15 of 54 PageID #:16677 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 16 of 54 PageID #:16678 Viamedia to provide Spot Cable Ad Rep Services in other DMAs, WOW! contracted with Comcast on a full turnkey basis in Chicago and Detroit. SAF ¶ 29. d. RCN followed a similar pattern. In 2014, RCN and Viamedia began discussing renewing the parties' then-existing contract (scheduled to expire at the end of 2015). SAF ¶ 33. e. If RCN and WOW! had been able to secure Interconnect services from Comcast without hiring Comcast as its Spot Cable Ad Rep, Viamedia would have been able to renew the agreements with RCN and WOW!, on terms consistent with the trends in the parties' historical relationship and marketplace evidence, for many years. See SAF ¶¶ 56-59. Owing in part to the long, close representation relationships between Viamedia and these two MVPDs and to the logistical difficulties and inconvenience of switching Spot Cable Ad Reps, it is unlikely that these MVPDs would have elected to hire their dominant rival as their Spot Cable Ad Sales Rep. See SAF ¶¶ 7, 24, 31. 10 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 17 of 54 PageID #:16679 3. Comcast Is Using its Exclusive Control of the Supply of Interconnect Services in Hartford to Secure Control of the Market for Spot Cable Ad Rep Services in That DMA a. Comcast is pursuing a similar strategy in the Hartford DMA. b. If Frontier were able to secure Interconnect services from Comcast without hiring Comcast as its Spot Cable Ad Rep and Viamedia were able to provide Frontier with Spot Cable Ad Rep Services as to avails sold through the Interconnect, then Viamedia would have secured much more revenue in Hartford. SAF ¶ 42. Viamedia would be far better positioned to compete for Frontier's future business, and would likely secure it, on terms consistent with the parties' historical dealings. See SAF ¶¶ 56-59. 4. Comcast's Abuse of its Control of Interconnect Services in Chicago and Detroit Caused Viamedia to Lose Verizon's Business Comcast's conduct in Chicago and Detroit also caused Viamedia to lose its long, successful relationship with Verizon. Before 2013, Viamedia and Verizon had worked closely on many projects: Not only had Viamedia served as Verizon's advertising sales representative, but Viamedia also helped Verizon successfully launch its then-new FiOS brand. SAF ¶¶ 44-46. 11 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 18 of 54 PageID #:16680 5. Comcast's Abuse of its Control of Interconnect Services Prevented Viamedia from Obtaining Atlantic Broadband as a Client Comcast's conduct also has prevented Viamedia from securing the business of another MVPD, Atlantic Broadband. In 2014, Atlantic Broadband solicited a bid from Viamedia to provide Spot Cable Ad Rep services to Atlantic Broadband in multiple DMAs. 56.1 Response ¶¶ 82, 85; SAF ¶ 52. Atlantic Broadband was an ideal fit as a Viamedia MVPD partner, as Viamedia specialized in providing the services that were tailored to the nature of Atlantic Broadband's business. Id. Due to the financial losses Viamedia had sustained from losing access to Comcast Interconnects, Viamedia was unable to project a revenue stream that, in combination with Viamedia's other advantages, would have made its financial terms more attractive to Atlantic Broadband than Comcast's bid. After receiving Viamedia's bid, Atlantic Broadband decided to contract with Comcast for Spot Cable Ad Rep services over Viamedia. 56.1 Response ¶¶ 86, 87. But for Comcast's anticompetitive conduct, Viamedia would have been able to secure Atlantic Broadband's business on terms consistent with Viamedia's contemporaneous pro forma. See SAF ¶¶ 54, 59 LEGAL STANDARD The Court may grant summary judgment only if Comcast "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). It is Comcast's burden to prove "the lack of any genuine issue of material fact" 12 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 19 of 54 PageID #:16681 – that is, that no "reasonable jury could return a verdict for" Viamedia, even viewing the record in the light most favorable to it, and taking all inferences in its favor. The PrivateBank & Tr. Co. v. Progressive Cas. Ins. Co., 2004 WL 1144048, at *1 (N.D. Ill. May 18, 2004) (St. Eve, J.) (quoting Pugh v. City of Attica, 259 F.3d 619, 625 (7th Cir. 2001)), aff'd sub nom. Private Bank & Tr. Co. v. Progressive Cas. Ins. Co., 409 F.3d 814 (7th Cir. 2005). ARGUMENT I. VIAMEDIA HAS PROFFERED EVIDENCE SUFFICIENT TO ESTABLISH LIABILITY ON ITS ANTITRUST CLAIMS Viamedia has proffered evidence that would allow a reasonable jury to find that Comcast violated the antitrust laws by refusing to sell Spot Cable Ad Rep Services to MVPDs except on the condition that they purchase Interconnect Services from Comcast as well. And record evidence confirms that Comcast used that control – and its tying and exclusive dealing conduct – to drive Viamedia from the separate market for Spot Cable Ad Rep Services and thereby obtained a monopoly in that separate market as well. That "willful acquisition or maintenance" of monopoly power violates Section 2. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 481 (1992). Comcast's contrary position lacks merit. Principally, it asserts that its conduct lies outside Section 2 because it has lawfully refused to deal with a rival, Viamedia. But, as this Court has made clear, any privilege that Comcast has to decline to deal with Viamedia does not shield it from liability for tying or exclusive dealing or other exclusionary conduct. And Comcast's arguments with respect to these claims depends on sharply contested factual issues. First, Comcast is not entitled to any legal ruling that Spot Cable Ad Rep Services and Interconnect Services are a single product: on the contrary, that premise contradicts evidence of 13 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 20 of 54 PageID #:16682 robust demand for the separate purchase of those services. If the jury credits that evidence and concludes that Comcast has conditioned MVPDs' purchase of Comcast's Interconnect Services on the purchase of Comcast's Spot Cable Ad Rep Services, Comcast has no defense to Section 2 liability. Second, the claim that Comcast may, with impunity, exclude Viamedia's MVPD partners from an Interconnect because Viamedia is not, technically, an agent for those MVPDs is legally and factually erroneous. The evidence establishes that the functional effect of refusing to deal with Viamedia – which is, after all, just a representative – is to exclude the MVPDs themselves from Comcast-run Interconnects. Comcast's detour into the details of agency doctrine cannot answer that claim. 2 A. Evidence That Comcast Refused To Allow Viamedia To Represent Its MVPD Customers in Obtaining Services from Comcast-Controlled Interconnects Establishes Monopolization Under Sherman Act § 2 A reasonable jury could resolve in Viamedia's favor the only contested liability question: whether Comcast has engaged in exclusionary conduct in violation of Section 2. Comcast does not dispute the first element of a Section 2 violation – its "possession of monopoly power in the relevant market." Eastman Kodak, 504 U.S. at 481. See SAF ¶¶ 10-12. Those facts establish classic types of competition-foreclosing exclusionary conduct: tying and exclusive dealing. And even if the Court were to conclude otherwise, that still would not merit summary judgment. Whether Comcast's Interconnect abuses amount to exclusionary conduct 2 Comcast's motion does not raise any issue relating specifically to Viamedia's attempted monopolization claim, such as Comcast's "specific intent to achieve monopoly power in a relevant market." See Mercatus Group, LLC v. Lake Forest Hosp., 641 F.3d 834, 854 (7th Cir. 2011). Viamedia is no longer pursuing its tortious-interference claim. 14 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 21 of 54 PageID #:16683 for Section 2 purposes does not turn on whether the conduct would constitute per se unlawful tying or unlawful exclusive dealing. The jury must instead answer the broader question whether Comcast has abused its conceded monopoly power "to foreclose competition, to gain a competitive advantage, or to destroy a competitor." Eastman Kodak, 504 U.S. at 482-83. Because a reasonable jury could conclude that Comcast has done so, summary judgment on liability should be denied. 1. Interconnect Services Are Separate From Spot Cable Ad Rep Services. a. A key factual predicate of a traditional tying claim is the existence of separate products – here, Interconnect Services and Spot Cable Ad Rep Services. To prove that those products are separate, Viamedia must show that there is "sufficient demand for the purchase of" the tied product – here, Spot Cable Ad Rep Services – "separate from" the tying product – Interconnect Services. Jefferson Parish Hospt. Dist. v. Hyde, 466 U.S. 2, 30 n.30, 22 (1984). Put differently, the question is whether there is enough demand to make it "efficient for a firm to provide [Spot Cable Ad Rep Services] separately from [Interconnect Services]." Eastman Kodak, 504 U.S. at 462. Marketplace evidence shows such separate demand. 15 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 22 of 54 PageID #:16684 This marketplace evidence of separate provision mirrors what the Supreme Court found sufficient to find separate products in Jefferson Parish, 466 U.S. at 20; see also Expert Rep. of Harold Furchtgott-Roth ¶¶ 45-54 (ECF No. 273-005, Mar. 16, 2018) ("Comcast Ex. 2, Furchtgott-Roth Rep."). The development of Viamedia's business model (providing Spot Cable Ad Rep Services separate from Interconnect Services) over a 16-year period also proves the efficiency of a separate market for Spot Cable Ad Rep Services, see Comcast Ex. 2, Furchtgott-Roth Rep. ¶ 47. Just as "the development of the entire high-technology service industry [wa]s evidence of the efficiency of a separate market for service" in Eastman Kodak, id. at 463, the success of Viamedia's business model itself shows the distinction between Interconnect Services and Spot Cable Ad Rep Services. b. Comcast's principal response (at 33-37) depends on a view of what makes two products "separate" that conflicts with controlling tying law. Comcast contends (at 34) that when MVPDs obtain Interconnect Services from an Interconnect operator through an arrangement with a third-party Ad Rep, "these examples do not constitute acquiring the products 'separately,'" but instead constitute a bundle provided wholly by the Ad Rep. See also Mot. at 35 n.13 (echoing the same point). Jefferson Parish teaches otherwise. There, the Supreme Court 16 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 23 of 54 PageID #:16685 found anesthesiological services to be separate from hospital services where anesthesiological services "could be selected [separately] either by the individual patient or by one of the patient's doctors." 466 U.S. at 20 (emphasis added). And the Supreme Court concluded that "consumers differentiate between anesthesiological services and other hospital services" even though "an anesthesiologist [wa]s normally selected by the surgeon, rather than the patient" who received and paid for the anesthesia. Id. (emphasis added). So too here, where third-party representatives (surgeons) sign agreements with Interconnect operators (anesthesiologists) to have the Interconnect operators provide Interconnect Services (anesthesiological services) to MVPDs (patients). In intermediated Interconnect-only arrangements, the Interconnect operator, not the third-party representative, controls the sale of the MVPDs' ad avails through the Interconnect and therefore is the entity that provides Interconnect Services. SAF ¶ 66. A reasonable jury could view these as supporting, rather than undermining, Interconnect Services' separateness from Spot Cable Ad Rep Services. 17 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 24 of 54 PageID #:16686 Finally, Comcast assigns too much weight (at 35-36) to two out-of-context deposition excerpts from Viamedia witnesses. As to David Solomon, Comcast omits (both from its brief and from its exhibit) Mr. Solomon's testimony that "[t]here is a difference between what an interconnect does and what an ad rep does." Viamedia Ex. 22, Solomon Tr. 382:9-383:17. As to Brian Hunt, the testimony Comcast cites (at 36) deals only with whether "interconnect operators provide spot cable advertising representation services." The parties agree that Interconnect operators offer not only Interconnect Services, but also Spot Cable Ad Rep Services – just as hospitals offered anesthesiological services in Jefferson Parish and photocopier manufacturers offered photocopier service in Eastman Kodak. But as other testimony from Mr. Hunt makes clear, see Viamedia Ex. 13, Hunt Tr. 366:1-368:6, there are other services that are offered only by Spot Cable Ad Reps, and not by Interconnect operators. See Viamedia Ex. 13, Hunt Tr. 366:1-368:6; 3 see also 56.1 Response ¶ 17. 2. Comcast Conditioned MVPDs' Purchase of Interconnect Services On Their Also Purchasing Spot Cable Ad Rep Services From Comcast. a. In addition to proof of separate products, Viamedia has also proffered evidence of "conditioning" – here, that Comcast effectively compelled MVPDs who wanted Interconnect Services from Comcast to purchase Spot Cable Ad Rep Services from Comcast, as well. Times- Picayune Publ'g Co. v. United States, 345 U.S. 594, 605 (1953) (A tying scheme "coerces the abdication of buyers' independent judgment as to the 'tied' product's merits and insulates it from the competitive stresses of the open market."); see also 10 Areeda & Hovenkamp ¶ 1752e ("[A] 3 To the (not inconsiderable) extent Comcast's motion rehashes its Daubert arguments against Dr. Furchtgott-Roth, those arguments should be rejected for the reasons Viamedia has already explained at length. See Opp. to Exclude Furchtgott-Roth (ECF No. 235). 18 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 25 of 54 PageID #:16687 tying 'agreement' or 'condition' is present when the defendant has utilized customers' desire for its product A to constrain improperly their choice between its product B and that of its rivals."). A reasonable jury could conclude that when Comcast refused to allow Viamedia's MVPD partners into its Interconnects, Comcast was making Interconnect access "effectively unavailable" to them unless they abandoned Viamedia and purchased Spot Cable Ad Rep Services from Comcast instead. See 10 Areeda & Hovenkamp ¶ 1752b. Comcast therefore has "constrain[ed] improperly [MVPDs'] choice" among ad representatives. See 10 Areeda & Hovenkamp ¶ 1752e. 19 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 26 of 54 PageID #:16688 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 27 of 54 PageID #:16689: they "did not want to take both products from the same vendor," see Will v. Comprehensive Accounting Corp., 776 F.2d 665, 669 (7th Cir. 1985), See SAF ¶¶ 23-25, 28, 30-32, 35, 38, 40-41, 59, 64-65. Comcast's contention (at 23-24) See infra Part II. To be sure, as Comcast says, liability for a tying scheme generally requires proof that "a substantial volume of commerce is foreclosed because of the tie." Reifert v. South Cent. Wis. MLS Corp., 450 F.3d 312, 317 (7th Cir. 2006); see also, e.g., United States v. Microsoft Corp., 253 F.3d 34, 70 (D.C. Cir. 2001) (similar foreclosure requirement to establish anticompetitive exclusive dealing). But none of that limits the scope of Viamedia's damages in the way Comcast suggests. Rather, "an antitrust plaintiff excluded from a market by anticompetitive activity is entitled to recover as damages the difference between what it would have made in a hypothetical free market and what it actually made." Grip-Pak, Inc. v. Illinois Tool Works, Inc., 651 F. Supp. 1482, 1501 (N.D. Ill. 1986); see also, e.g., Holleb & Co. v. Produce Terminal Cold Storage Co., 532 F.2d 29, 36 (7th Cir. 1976) ("[P]laintiff needed to show only that [defendant]'s illegal conduct materially or substantially contributed to its injury."). And, as explained in Part 21 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 28 of 54 PageID #:16690 II, each category of damages Viamedia seeks is necessary to compensate for the harm Comcast's course of illegal conduct inflicted. 5 Finally, Comcast's assertion (at 26) that invites the Court to violate Rule 56. Comcast may propose that reading of to a jury. But it is not entitled to such generous inferences in its favor at summary judgment. See, e.g., Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 503-04 (7th Cir. 2014) (St. Eve, J.) (the court "construe[s] all facts and reasonable inferences in the light most favorable to the non-moving party"). 3. Comcast's Exclusive Dealing Is Exclusionary Conduct That Violates Section 2. a. As the Court explained in denying Comcast's motion to dismiss Viamedia's exclusive- dealing claim, exclusive dealing can violate Section 2 if it forecloses competition in a substantial share of relevant commerce. See Memorandum Op. and Order at 34 (ECF No. 36). That is so in this case, even if one were to accept Comcast's assertion that Interconnect Services and Spot Cable Ad Rep Services are sold in the same relevant antitrust market. By refusing to allow MVPDs (including RCN, WOW!, and Frontier) to obtain any Spot Cable Ad Rep Services from Viamedia while retaining Interconnect access in Comcast-controlled interconnects, Comcast was able to exclude its sole competitor from the market and obtain a monopoly over Spot Cable Ad Rep Services. This is the sort of exclusive dealing by a dominant firm that the Court has already held violates Section 2. Memorandum Op. and Order at 34 (ECF No. 36). 5 Comcast also makes an identical argument regarding exclusive dealing (at 39) that should be rejected for the same reasons. 22 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 29 of 54 PageID #:16691 b. Comcast's additional arguments addressed to exclusive dealing (at 39-41) overlook the fact that makes Comcast's exclusive dealing unlawful: its use of its monopoly power to constrain MVPDs' choices. For example, Comcast says (at 39) that it was engaged in "competition for the contract," which "is favored by the antitrust laws." And it similarly contends (at 40-41) that its exclusive agreements are "not unreasonable" because Viamedia also signs exclusive agreements, and MVPDs "find [them] beneficial." But "Viamedia does not assert that exclusive dealing is generally unlawful." Memorandum Op. and Order at 34 (ECF No. 36). On the contrary, Viamedia agrees (see Mot. at 41) that exclusive, full turnkey Spot Cable Ad Rep Service agreements have benefits. But it wants the opportunity to compete for such agreements on a fair playing field. 6 As explained above, requiring MVPDs to deal directly with Comcast to access Interconnects forecloses Viamedia from the market for Spot Cable Ad Rep Services because MVPDs often cannot do without such Interconnect access in large DMAs – if they have to deal exclusively with one firm in those DMAs, it will be the firm that controls the Interconnect, as Comcast well understands. For that reason – the exclusionary use of exclusive dealing by a firm with monopoly power – Comcast's exclusive dealing violates Section 2. 4. A Reasonable Jury Could Find That Comcast's Conduct, However Described, Was Exclusionary Within the Meaning of Section 2. 6 Thompson Everett, Inc. v. National Cable Advertising, L.P., 57 F.3d 1317 (4th Cir. 1995), on which Comcast relies (at 40-41), is factually inapposite. It involved a plaintiff that was "not in a position to enter into exclusive cable representation contracts" with cable companies, was "not a would-be competitor with the cable reps" that were using exclusive contracts, and was only "temporarily preempt[ed]" from competing. Id. at 1324-26. That is nothing like Viamedia. 23 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 30 of 54 PageID #:16692 Even if Comcast were correct that Viamedia's claims would not constitute per se unlawful tying for purposes of a claim under § 1 of the Sherman Act – and it is not – Comcast's argument would fail. To call conduct "exclusionary" is simply to state the conclusion that it is conduct by which a monopolist has abused its power "'to foreclose competition, to gain a competitive advantage, or to destroy a competitor.'" Eastman Kodak, 504 U.S. at 482-83 (quoting United States v. Griffith, 334 U.S. 100, 107 (1948)). Whether conduct inflicts those harms does not turn on rigid labels or categories. See, e.g., Jamsports & Entertainment, LLC v. Paradama Productions, Inc., 2003 WL 1873563, at *13 (N.D. Ill. Apr. 15, 2003) (approving claims of "general monopolization" under Section 2); see also Jefferson Parish, 466 U.S. at 21 n.34 ("The legality of [defendant]'s conduct depends on its competitive consequences, not whether it can be labeled 'tying.'"); 3B Areeda & Hovenkamp ¶ 777a ("While the standard for a § 2 violation is significantly stricter in its power assessment, it is broader and less categorical in its definition of proscribed conduct."). Rather, Section 2's core proscription is abuse of monopoly power – that is, use of "improper methods" to acquire or maintain its monopoly. American Academic Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317, 1320 (7th Cir. 1991); see also, e.g., LePage's Inc. v. 3M, 324 F.3d 141, 147 (3d Cir. 2003) ("A monopolist willfully acquires or maintains monopoly power when it competes on some basis other than the merits."). To examine that abuse, "one looks to the total aggregation of conduct in which the defendant has engaged, where 'otherwise lawful practices may become unlawful if they are part of an illegal scheme.'" State of Illinois ex rel. Hartigan v. Panhandle Eastern Pipe Line Co., 730 F. Supp. 826, 923 (C.D. Ill. 1990) (quoting Photovest Corp. v. Fotomat Corp., 606 F.2d 704, 719 (7th Cir. 1979)). Indeed, "[t]he enforcement of [Section] 2 of the Sherman Act will often result in a sacrifice of [even] the most 24 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 31 of 54 PageID #:16693 competitive conduct in the short run if the ultimate goal of that conduct is the establishment of monopoly power." Photovest, 606 F.2d at 718. 7 Those principles confirm that Comcast's doctrinal arguments – incorrect in any event – fail to provide any basis for judgment here. In particular, unlike Section 1 tying claims, Section 2 doctrine does not require Viamedia to establish the existence of separate products to prove a monopolization claim. "[W]hen the monopolist bundles the product in which it has monopoly power, the technicalities of the separate-products requirement give way to the more open-ended § 2 inquiry whether a practice injures competition unnecessarily." 3B Areeda & Hovenkamp ¶ 777a. In other words, "failing to find separate products is not dispositive of antitrust liability when the defendant is a monopolist," and "mandatory bundling by the monopolist may be unlawful even if the items in the bundled package would not constitute separate products." Id. (collecting and discussing cases). Under that broader understanding of exclusionary conduct, for the reasons already explained, a reasonable jury could readily find that Comcast has engaged in exclusionary conduct: Comcast has used its control over the Interconnects to squeeze its only competitor from the market and thereby to deny its "customers" – in fact, its MVPD rivals – a meaningful choice in the provision of Spot Cable Ad Rep Services. 7 See also, e.g., Eastman Kodak, 504 U.S. at 488 (Scalia, J., dissenting) ("Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws—or that might even be viewed as procompetitive—can take on exclusionary connotations when practiced by a monopolist."); ES Development, Inc. v. RWM Enterprises, Inc., 939 F.2d 547, 555 (8th Cir. 1991) (acknowledging "the antitrust maxim that 'even an otherwise lawful device may be used as a weapon in restraint of trade'" (quoting Schine Chain Theatres, Inc. v. United States, 334 U.S. 110, 119 (1948))); Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416, 425 (10th Cir. 1952) (holding that bringing lawful patent infringement action can be unlawful "when considered with the entire monopolistic scheme"). 25 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 32 of 54 PageID #:16694 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 33 of 54 PageID #:16695"). Viamedia's theory depends on the economic substance of the parties' relationship See SAF ¶¶ 3-4, 17. It could hardly be otherwise – the advertising runs on the MVPDs' systems, to be viewed by their subscribers. That is why Viamedia is a "representative" of the MVPDs. Ample record evidence confirms as much. Nothing about agency law has anything to do with these marketplace realities. Even taking Comcast's reliance on the common law of agency on its own terms, it is misplaced. The legal distinction Comcast invokes between an agent (or "servant") and an independent contractor is relevant primarily to the scope of a principal's liability for the actions of the agent or contractor. See, e.g., Restatement (Second) of Agency §§ 1-2 (1958); see also 2A N.Y. Jur. 2d Agency §§ 277, 398 (2018); Kleeman v. Rheingold, 614 N.E.2d 712, 715 (N.Y. 27 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 34 of 54 PageID #:16696 1993). Because MVPDs' liability for Viamedia's conduct is not at issue here, the existence of an agency relationship is irrelevant: An independent contractor, no less than an agent, can act "on behalf of the principal who hired him," Zampatori v. United Parcel Service, 479 N.Y.S.2d 470, 473 (N.Y. Sup. Ct. 1984), or "for the benefit" of a principal, Emmons v. City of New York, 283 A.D. 2d 244, 245 (N.Y. App. Div. 1st Dep't 2001). See also, e.g., Pneuma-Flo Sys., Inc. v. Universal Machinery Corp., 454 F. Supp. 858, 862 (S.D.N.Y. 1978) ("independent contractor operating with authority and for the substantial benefit of [a] non-resident" can subject non- resident to personal jurisdiction in New York). Comcast also continues to misread the Ninth Circuit's decision in Aerotec International, Inc. v. Honeywell International, Inc., 836 F.3d 1171 (9th Cir. 2016). That case involved a plaintiff that had serviced but did not manufacture aircraft components and relied on the defendant, which manufactured those components, to supply it with replacement parts necessary to provide repair services. Id. at 1179. The defendant manufacturer had made it more difficult for the plaintiff to obtain replacement parts for its own account but "allow[ed] airlines to purchase parts and services in separate transactions from whichever supplier they please." Id. Thus, in that case, "the only claimed conditions imposed were on" competitors of the defendant rather than customers. Id. Those are not the facts here. Again, unlike the plaintiff in Aerotec, Viamedia does not purchase Interconnect Services for its own account, but rather purchases them on behalf of MVPDs (i.e., end users). That fact makes plain why Aerotec's reasoning cannot resolve this case: The Ninth Circuit made clear that the defendant left end users (airlines) free "to purchase parts and services in separate transactions from whichever supplier they please." Id. If the independent servicer plaintiff in Aerotec had been trying to purchase parts separately from the defendant manufacturer on behalf of its airline customers who preferred to purchase 28 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 35 of 54 PageID #:16697 service from the plaintiff, and the defendant had refused to make those separate sales, then airlines would not have been free "to purchase parts and services in separate transactions from whichever supplier they please." Rather, like the MVPDs in this case, the airline customers in Aerotec would have been improperly constrained in their choice of how they could purchase parts and services. Comcast's contrary view also conflicts with sound antitrust policy. It is often the case that customers want to procure a service (the tying product) from a monopolist but are either sufficiently unfamiliar with the details of the service or sufficiently uninterested in dealing with the monopolist directly that they hire a third-party representative to procure the service and manage the relationship with the monopolist for them. The rule Comcast advances would give monopolists license to tie by nominally "refusing to deal with" the third-party, regardless of whether that third party was a competitor of the monopolist in the market for a separate (tied) product. This rule would undoubtedly reduce consumer welfare by restricting consumers' choice of how to buy goods and services, with no countervailing benefit. 8 Moreover, Comcast's related contention (at 27-31) that Viamedia's "theory of tying" is "contrary to antitrust law" because "whether or not a defendant is tying as to end users depends on the defendant's direct dealings with end users" is incorrect for the reasons Viamedia explained in its opposition to Comcast's attack on Viamedia's liability expert. See Viamedia's Memorandum of Law in Opposition to Defendant's Motion to Exclude Certain Opinions and 8 The tying conduct in this case also has nothing to do with Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004). In that case, the Supreme Court had no occasion to discuss tying doctrine or whether tying could be found if the plaintiff had been separately procuring a service from a monopolist on behalf of end users. Indeed, in Trinko, unlike here, end users had no separate use for the withheld product, which was neither "marketed [n]or available to the public." Id. at 410. 29 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 36 of 54 PageID #:16698 Proffered Testimony of Dr. Harold Furchtgott-Roth at 7-10 (ECF No. 235, February 14, 2018) ("Opp. to Exclude Furchtgott-Roth"). In particular, antitrust law does not constrain tying liability to "direct dealings" with end users because the prohibition on tying is concerned more generally with preventing a firm from "coerc[ing] the abdication of buyers' independent judgment." Times-Picayune Publ'g Co., 345 U.S. at 605; see also 10 Areeda & Hovenkamp ¶ 1752e ("[A] tying 'agreement' or 'condition' is present when the defendant has utilized customers' desire for its product A to constrain improperly their choice between its product B and that of its rivals."). And a buyer's independent judgment about how to obtain goods and services can be improperly constrained through dealings with firms acting on buyers' behalf just as effectively as through direct dealings with end users. See, e.g., Copeca, Inc. v. Western Aviation Servs. Corp., 653 F. Supp. 2d 141, 146-47 (D.P.R. 2009) (buyer "could still be coerced into buying fuel from [defendant], regardless of whether [defendant] imposes its condition via communications directly with [defendant] or communications to [defendant] through [an] intermediary"). 3. Comcast's Remaining Liability Arguments Are Legally Erroneous and Factually Unsupported. a. Comcast's purported procompetitive justifications for its tying provide no basis to grant summary judgment. First, in its "vertical integration" argument, Comcast contends (at 31- 32) that Viamedia is attempting to "forc[e] Comcast to sell 'Interconnect Services' to Viamedia" so that "Viamedia can sell the same bundle" of Interconnect Services and Spot Cable Ad Rep Services to MVPDs. This "finished-product rationale" for tying, see 10 Areeda & Hovenkamp ¶ 1748, substantially overlaps with Comcast's single-product arguments (at 33-34), and it fails for the same reasons. The finished-product rationale applies to situations where the only separate demand for the tying product comes from the defendant's rivals, and end users only 30 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 37 of 54 PageID #:16699 want the single finished product that incorporates the tying product. See id. As discussed supra (at 15-16), however, there is evidence of substantial separate demand from end users (MVPDs) for both Interconnect Services and Spot Cable Ad Rep Services, creating a triable issue regarding whether Comcast is correct that these two kinds of services constitute a single, finished product when bundled together. Second, a reasonable jury could reject Comcast's argument (at 31) that its exclusionary conduct "enhanced economic efficiency." SAF ¶ 23. More fundamentally, if Comcast were truly a more efficient firm, it would have been able to prevail in lawful competition without unlawful tying, by continuing to provide Interconnect Services separately while offering lower prices for Spot Cable Ad Rep Services. See, e.g., Comcast Ex. 2, Furchtgott-Roth Report ¶ 108; ECF No. 221-03 (Furchtgott-Roth Rebuttal Report) ¶¶ 18, 43 And a reasonable jury could thus conclude from these facts that Comcast's conduct was anticompetitive. b. Comcast is likewise incorrect to contend (at 37-38) that the "one monopoly profit" principle immunizes it from tying liability. In essence, Comcast contends that because all MVPDs need to buy Interconnect access already, Comcast has nothing to gain by reducing output in the market for Spot Cable Ad Rep Services. Comcast's sole legal authority for this contention is Schor v. Abbott Laboratories, 457 F.3d 608, 611 (7th Cir. 2006), in which the Seventh Circuit invoked the one monopoly profit principle to elucidate "[t]he problem with 'monopoly leveraging' as an antitrust theory." Just as it did at the motion-to-dismiss stage, 31 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 38 of 54 PageID #:16700 however, Comcast fails to "explain why Schor should control despite the factual differences between that case and the current one," namely that the monopolist in Schor tried to "gain a relative advantage in a second market, but did not foreclose all competition in that second market." Memorandum Op. and Order at 31-32 (ECF No. 36). Nor has Comcast established that the factual premise of its "one monopoly profit" argument – that all MVPDs need to buy Interconnect access – is undisputed. But there are many strategic reasons why Comcast might want to eliminate competition from an independent Spot Cable Ad Rep service provider – including the ability to more effectively disadvantage rivals once Viamedia has been driven from the market. Saying that a group of consumers " " a product is not the same thing as the product being an "essential component of a. . . product or service." Schor, 457 F.3d at 612. c. Contrary to Comcast's assertion (at 17-19), Viamedia does not claim injury based on having to charge lower prices to its clients. Viamedia's injuries stem from 32 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 39 of 54 PageID #:16701 – "a paradigmatic tie." See 10 Areeda & Hovenkamp ¶ 1752b ("[I]f buyers purchase the second product only after the defendant refuses insistent requests to sell the first product separately, a paradigmatic tie exists."). were simply "a reduction in the tying-product price (below its monopoly level) that equal[ed] or exceed[ed] the disutility of the package." Id. ¶1752e n.26; see also id. ¶ 1767(a) ("Even when tied buyers pay no more for the package than what the market value of its components would be without the tie, tie-ins may deprive rivals of sales and profits otherwise available, and perhaps even destroy those rivals."). II. A REASONABLE JURY COULD CONCLUDE THAT COMCAST'S ANTICOMPETITIVE CONDUCT CAUSED VIAMEDIA'S DAMAGES As ample record evidence shows, Comcast's monopolization of the relevant Spot Cable Ad Rep Services geographic markets inflicted severe financial harm on Viamedia. SAF ¶¶ 22, 29, 33, 36, 42, 50, 54-59. In the short run, after Comcast effectuated its tie by precluding Viamedia's MVPD partners from accessing the Interconnects in Chicago and Detroit, Viamedia lost revenues that, had Comcast permitted Viamedia's partners to access those Interconnects, Viamedia would have earned. SAF ¶¶ 23, 58. And in the long run, Viamedia's exclusion from those markets has prevented, or will prevent, Viamedia from securing business that it otherwise would have won with MVPD partners. SAF ¶¶ 29, 33, 50, 54, 56-59. Comcast's challenges to Viamedia's damages evidence lack a sound basis. First, Comcast cloaks its distortion of the Court's refusal-to-deal holding in antitrust-injury garb, contending that Viamedia's harm did not flow from an anticompetitive facet of Comcast's conduct. See Mot. at 11-17; see also id. at 43. As explained above and in the Court's earlier decisions, Comcast's position misstates Section 2 law. Supra Part I. Second, Comcast contests causation in fact. 33 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 40 of 54 PageID #:16702 Third, Comcast contends no reasonable jury could credit Viamedia's evaluation of the impact of Comcast's conduct on Viamedia's relationships with individual MVPD partners. See id. at 42-46. But case after case confirms that Viamedia is entitled to present, and the jury to adopt, any reasonable way to estimate its damages – including by projecting lost profits based on unconsummated transactions. Viamedia has cleared that bar with room to spare. A. An Antitrust Plaintiff May Recover Damages If It Proves That the Defendant's Anticompetitive Conduct Was a Material Cause of Its Harms and Provides the Jury a Reasonable Basis to Estimate Damages Viamedia may recover damages for any injuries caused by Comcast's foreclosure of competition in the market for Spot Cable Advertising Representation Services. See Memorandum Op. and Order at 23 (ECF No. 36); accord Grip-Pak, 561 F. Supp. at 1501. Viamedia need not show that Comcast's conduct was the sole cause of those injuries or "exhaust all alternative sources of injury"; it is enough, instead, if Viamedia can show that Comcast's anticompetitive conduct is a but-for and a material cause of those injuries. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 114 n.9 (1969); see In re Publ'n Paper Antitrust Litig., 690 F.3d 51, 66 (2d Cir. 2012) ("'[T]o prove a 'causal connection' between the defendant's unlawful conduct and the plaintiff's injury, the plaintiff need only 'demonstrate that [the 34 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 41 of 54 PageID #:16703 defendant's] conduct was a substantial or materially contributing factor' in producing that injury.'" (quoting Litton Sys., Inc. v. AT&T Co., 700 F.2d 785, 825 n.49 (2d Cir. 1983)). Further, basic causation principles – which apply with full force in antitrust cases – dictate that "if an act is deemed wrongful because it is believed significantly to increase the risk of a particular injury, [courts] are entitled – in the tort context at least – to presume that such an injury, if it occurred, was caused by the act." Id. at 66 (applying that rule in an antitrust case). "[T]he burden then shifts to the defendant 'to bring in evidence tending to rebut the strong inference, arising from the [injury], that the [act] was in fact a but-for cause of the plaintiff's injury.'" Id. at 67 (quoting Liriano v. Hobart Corp., 170 F.3d 264, 271 (2d Cir. 1999)) (alterations in original); see also id. at 68-69 (vacating contrary grant of summary judgment). Once Viamedia establishes the fact of its injury, a relaxed standard applies to proof of the amount of damage. "It is axiomatic that damages in [an antitrust] case are rarely susceptible of the kind of concrete, detailed proof of injury available in other contexts." Trabert & Hoeffer, Inc. v. Piaget Watch Corp., 633 F.2d 477, 484 (7th Cir. 1980) (damages calculation affirmed) (citing Zenith Radio, 395 U.S. at 123). "The vagaries of the marketplace usually deny us sure knowledge of what plaintiff's situation would have been in the absence of the defendant's antitrust violation." J. Truett Payne Co. v. Chrysler Motors Corp., 451 U.S. 557, 566 (1981). But Comcast is ill-positioned "to insist upon specific and certain proof of the injury which it has itself inflicted." Id. For that reason, the Seventh Circuit "has unambiguously held that in its damage assessment, the 'fact finder may act on probability and inference.'" Trabert & Hoeffer, 633 F.2d at 484 (quoting Locklin v. Day Glo Color Corp., 429 F.2d 873, 880 (7th Cir. 1970), cert denied, 400 U.S. 1020 (1971)). To be sure, as with damages in other cases, the amount of antitrust damages may not be "speculative." Associated Gen. Contractors of 35 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 42 of 54 PageID #:16704 California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 542 (1983). But courts routinely permit antitrust plaintiffs to recover based on reasonable, even if inexact, estimates. Id. at 552; see also King & King Enterprises v. Champlin Petroleum Co., 657 F.2d 1147, 1158-63 (10th Cir. 1981) ("If the calculations upon which the loss of profits are based are estimated in any reasonable way and the underlying assumptions on which the accountant relied are not without support in the record, the calculations may be upheld as a valid means of measuring loss of profits."). B. A Reasonable Jury Could Find That Comcast's Monopolistic Conduct Caused Viamedia's Damages 1. A reasonable jury could find that Comcast's conduct harmed Viamedia in three ways that naturally follow from how Comcast harmed competition. First, when Comcast excluded Viamedia's MVPD partners from the Interconnects in the Chicago, Detroit, and Hartford DMAs, Viamedia lost revenues associated with the Interconnect portion of its then-existing contracts with three MVPDs in those DMAs: WOW!, RCN, and Frontier. SAF ¶¶ 22-27. Second, Comcast's monopolistic conduct caused Viamedia to lose certain future MVPD relationships that it otherwise would have won or continued. 36 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 43 of 54 PageID #:16705 Given this track record, Viamedia management projects that, absent Comcast's anticompetitive conduct, it would have been able to continue those four relationships, on terms consistent with the historical trends in the parties' contracts and the markets at issue, for many years. SAF ¶¶ 56-59. But because Comcast has, instead, monopolized the Spot Cable Ad Rep Services market in Chicago and Detroit, Viamedia cannot compete for that business. 37 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 44 of 54 PageID #:16706 Comcast's conduct also caused Viamedia to lose its long, successful relationship with Verizon. 38 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 45 of 54 PageID #:16707 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 46 of 54 PageID #:16708 build the relationships with its MVPD partners that were essential to their willingness to renew with Viamedia even when Comcast and the other large interconnect operators offered more attractive financial terms. SAF ¶ 58. Viamedia's projections regarding the contracts it would have obtained and retained in the but-for world are not mere speculation. Instead, they reflect hundreds of hours spent by Viamedia management interviewing past and current Viamedia personnel who had direct contact with its MVPD partners, reviewing Viamedia's communications with those MVPDs, and reviewing internal Viamedia financial information and communications. SAF ¶ 59. Third, Comcast's anticompetitive conduct caused Viamedia to suffer certain out-of- pocket expenses. Comcast's motion ignores the out-of-pocket expenses. All three categories are precisely the kinds of damages that courts expect to follow from the kinds of harm Comcast inflicted on competition. As explained above (see Part I), the antitrust laws condemn Comcast's conduct precisely because it effectively precluded rivals from competing in the relevant markets for Spot Cable Ad Rep Services. Indeed, even disregarding the balance of the evidence, because Viamedia's loss of those deals is exactly the injury that one expects would follow from Comcast's wrongdoing, that fact alone creates a jury question about causation. See Publ'n Paper, 690 F.3d at 66. Viamedia therefore is "entitled to recover as damages the difference between what it would have made in a hypothetical free market and what it actually made." Grip-Pak, 651 F. Supp. at 1501; see also JamSports & Entm't, LLC v. 40 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 47 of 54 PageID #:16709 Paradama Prods., Inc., 2004 WL 2966947, at *1 (N.D. Ill. Nov. 24, 2004) ("Damages in an antitrust market exclusion case consist of the amount that the plaintiff would have made but for the defendant's anticompetitive conduct."). Each category of damages above is necessary to put Viamedia back into the position it would have held absent Comcast's anticompetitive conduct. 2. Comcast's principal response repeats the error of its liability argument. Comcast asserts that – irrespective of the factual link between Comcast's conduct and Viamedia's harms – Viamedia's harms do not qualify as antitrust damages because they "were caused by" what Comcast insists was its "lawful refusal to deal." See Mot. at 43 (emphasis added). Once again, that argument depends on Comcast's overreading of the Court's refusal-to-deal holding. As detailed above, a reasonable jury could conclude that Comcast's Interconnect abuses, even if not unlawful under the refusal-to-deal strand of Section 2 doctrine, nonetheless constituted unlawful tying and were anticompetitive acts that were bound up in Comcast's broader, unlawful monopolization effort. See supra Part I.A. If the jury so finds, the Court has already held that Viamedia is entitled to recover damages that flow from that scheme. Memorandum Op. and Order at 23 (ECF No. 36) Comcast also insists (at 19-23; 42; 45-46) that 41 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 48 of 54 PageID #:16710 Although that subject is fair game for cross- examination, no case supports the litigation-by-gotcha! view that the Court should resolve this case on what the facts show to be a fiction. Comcast's argument would fail for a second, independent reason: it assumes an apples- to-apples comparison between Comcast's services and Viamedia's that record evidence refutes. 42 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 49 of 54 PageID #:16711 SAF ¶¶ 60-62. A jury could readily credit that evidence and conclude that, if Viamedia had those MVPDs, they would have continued to do business with Viamedia. Viamedia has never contended that all MVPDs will engage it whenever it bids. SAF ¶ 7. How MVPDs would have made that decision in the but-for world depends on factors that only the jury can weigh. 3. Comcast is incorrect to assert (Mot. at 43) that an antitrust plaintiff may not collect damages without enlisting an expert to prove causation. To the contrary, courts have long held fact evidence sufficient to create a triable issue on causation. E.g., Rossi v. Standard Roofing, Inc., 156 F.3d 452, 484, 487 (3d Cir. 1998) (reversing summary judgment in relevant part, explaining that fact evidence "of specific lost transactions" was "enough by itself to satisfy [plaintiff's] burden on causation for the purposes of summary judgment"; damages report merely provided additional evidence); Constr. Aggregate Transp., Inc. v. Fla. Rock Indus., Inc., 710 F.2d 752, 785 (11th Cir. 1983) (evidence other than expert testimony sufficient to prove fact of antitrust injury; jury verdict reversed on other grounds); Hobart Bros. Co. v. Malcolm T. 43 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 50 of 54 PageID #:16712 Gilliland, Inc., 471 F.2d 894, 901 (5th Cir. 1973) (similar; verdict affirmed). 10 And no case Comcast cites purports to hold to the contrary. Comcast leads (Mot. at 42) with a misleading partial quote from American Booksellers Association, Inc. v. Barnes & Noble, Inc., 135 F. Supp. 2d 1031 (N.D. Cal. 2001). But the rest of the opinion makes plain 11 what the excerpted sentence suggests 12: the case does not stand for any kind of general rule about how causation must be proved, because the plaintiffs there conceded that their particular causation case hinged entirely on an expert. 13 This case illustrates why Comcast's rule requiring that approach cannot be correct. Expert testimony is useful when the subject matter of testimony lies "beyond the ken of the 10 See also Callahan v. A.E.V. Inc., 182 F.3d 237, 353 (3d Cir. 1999) (relying on Rossi for the proposition that "plaintiffs' testimony concerning their customers' actions and statements is sufficient to meet their burden to produce evidence of loss and causation"; summary judgment reversed in relevant part); Rose Confections, Inc. v. Ambrosia Chocolate Co., 816 F.2d 381, 386 (8th Cir. 1987) (in Robinson-Patman Act case, testimony of fact witnesses "alone is sufficient to allow a reasonable juror to find competitive injury"; liability finding affirmed). 11 "Plaintiffs have previously informed the Court that "'[p]laintiffs' proof of actual injury attributable to the defendants' conduct will be presented through a single expert witness, Dr. Franklin Fisher, who will present an economic simulation model that automatically accounts for individualized events and factors that affected the plaintiff bookstores during the complaint period.'" Id. at 1037 (quoting pleading.). 12 "Plaintiffs cannot prove causation of actual injury without Fisher's expert testimony, because only expert testimony can demonstrate that any injury to plaintiffs" – that is, those particular plaintiffs – "was caused by defendants' unlawful conduct, and not because of lawful competition or other factors." Id. at 1042. 13 None of Comcast's other cases better supports its blanket rule. In Hannah's Boutique, Inc. v. Surdej, the Court excluded a liability expert's market-power opinion because the plaintiff concededly lacked proof of the firm's market share. 2015 WL 4055466, at *4 (N.D. Ill. July 2, 2015) (St. Eve, J.). Both Blades v. Monsanto Co., 400 F.3d 562, 569 (8th Cir. 2005), and Exhaust Unlimited, Inc. v. Cintas Corp., 223 F.R.D. 506, 513 (S.D. Ill. 2004), concern a question irrelevant here: what an antitrust expert must show to prove common impact in a class action. And Greater Rockford Energy & Tech. Corp. v. Shell Oil Co., 998 F.2d 391 (7th Cir. 1993), says nothing about whether an antitrust plaintiff must prove causation through an expert, let alone about Rule 702 (which it never cites). 44 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 51 of 54 PageID #:16713 jury." D. Kaye et al., The New Wigmore § 2.5 (2018); see also Fed. R. Evid. 701. But as Professor Lys explained in the Daubert hearing, this is not the sort of case in which an expert economist's toolkit is well-equipped to address causation: causation here depends upon fact evidence concerning negotiations about which experts would add no value. Because the jury is just as well positioned to infer causation from the record as it stands, expert testimony not only is unnecessary as a matter of law, but would be unhelpful on the facts of this case. C. A Reasonable Jury Could Credit Viamedia's Lost-Profit Projections and Estimate Damages Comcast is incorrect to assert that Viamedia's evidence of its lost future contracts is too speculative to merit a trial. Indeed, courts in many kinds of cases routinely permit projected lost future profits to serve as the basis for damages. BE &K Const. Co. v. Will & Grundy Ctys. Bldg. Trades Council, 156 F.3d 756, 770-71 (7th Cir. 1998) (damages award that reflected losses from awards of future contracts not too speculative; verdict affirmed); Mid-Am. Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1366 (7th Cir. 1996) (even a new business's projected lost future profits from unconsummated sales not too speculative; affirming denial of JMOL, but remanding for new trial on other grounds); see also Fid. Interior Constr., Inc. v. Se. Carpenters Reg'l Council of United Bhd. of Carpenters & Joiners of Am., 675 F.3d 1250, 1265 (11th Cir. 2012) (affirming jury verdict awarding lost future profits based on lost opportunities to bid); Rucinski v. Torian Plum Condo. Owners Ass'n, Inc., 2012 WL 3938822, at *3 (D. Colo. Sept. 10, 2012) (plaintiff's projected lost contracts not so speculative as to justify summary judgment). And Comcast provides no reason to think any other rule should govern antitrust cases. To the contrary, courts have repeatedly explained that, in antitrust cases as in other cases, any doubts about the plaintiff's damages are to be resolved against the wrongdoer. See J. Truett Payne Co., 451 U.S. at 565-66. 45 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 52 of 54 PageID #:16714 That rule disposes of Comcast's argument. Viamedia's projections of what its partner relationships would have looked like absent Comcast's wrongdoing are the best estimates that its staff's judgment can provide. SAF ¶ 59. Those individuals have extensive experience in the Spot Cable Ad Rep Services industry and have deep knowledge of the industry. Id. More to the point, they have intimate knowledge of the relationships between Viamedia and its partners, and so are the best available source for information about those relationships. Id. That is particularly true of WOW! and RCN, with whom Viamedia had relationships extending back to 2001 and 1992, respectively. SAF ¶¶ 31, 24. To be sure, Viamedia's estimates are just that – estimates. But any imprecision stems from Comcast's conduct. As the Seventh Circuit has repeatedly made plain, damages "need not be proven with the certainty of calculus." BE & K Const. Co., 156 F.3d at 770; see also id. ("Speculation has its place in estimating damages, and doubts should be resolved against the wrongdoer." (quoting Mid–America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1365 (7th Cir. 1996)). Any remaining disputes concerning whether and when Viamedia's relationship with its MVPD partners would have ended in the but-for world are for the fact-finder to resolve. Finally, Comcast's motion ignores Viamedia's request for equitable relief. See Am. Compl. ¶¶ C-D. For that reason, even if the Court were to grant summary judgment as to every category of Viamedia's damages, Comcast has waived any summary judgment argument with respect to the remainder of the relief Viamedia seeks. See Baldonado v. Wyeth, 2012 WL 2254215, at *2 n.1 (N.D. Ill. June 15, 2012) (St. Eve, J.) (arguments raised for the first time in reply brief are waived; summary judgment motion denied). Further, Comcast ignores the out-of- pocket expenses in its motion, and so (setting aside its erroneous liability argument) has waived any argument with respect to that category of Viamedia's damages. See id. 46 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 53 of 54 PageID #:16715 CONCLUSION Comcast's motion should be denied. Dated: April 19, 2018 Respectfully submitted, /s/ Richard J. Prendergast Richard J. Prendergast Michael T. Layden Collin M. Bruck RICHARD J. PRENDERGAST, LTD. 111 W. Washington Street, Suite 1100 Chicago, Illinois 60602 (312) 641-0881 rprendergast@rjpltd.com mlayden@rjpltd.com cbruck@rjpltd.com James M. Webster, III (pro hac vice) Aaron M. Panner (pro hac vice) Kenneth M. Fetterman (pro hac vice) Derek T. Ho (pro hac vice) Leslie V. Pope (pro hac vice) KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 jwebster@kellogghansen.com apanner@kellogghansen.com kfetterman@kellogghansen.com dho@kellogghansen.com lpope@kellogghansen.com Counsel for Plaintiff Viamedia, Inc. 47 Case: 1:16-cv-05486 Document #: 336 Filed: 04/24/18 Page 54 of 54 PageID #:16716 CERTIFICATE OF SERVICE I, Richard J. Prendergast, an attorney of record in the above-captioned case, hereby certify that on April 24, 2018, I caused to be served a corrected version of Viamedia's Opposition to Defendants' Motion for Summary Judgment eliminating certain redactions upon the following counsel via electronic means: Ross Benjamin Bricker Sally Kristen Sears Coder Thomas Edward Quinn Jenner & Block LLP 353 N. Clark Street Chicago, IL 60654 (312) 222-9350 rbricker@jenner.com ssearscoder@jenner.com tquinn@jenner.com Arthur Burke David B. Toscano Christopher Lynch Davis, Polk & Wardwell 450 Lexington Street New York, NY 10017 (212) 450-4000 arthur.burke@dpw.com david.toscano@davispolk.com Christopher.lynch@davispolk.com /s/ Richard J. Prendergast