Viamedia, Inc. v. Comcast Corporation et al

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

RESPONSE by Viamedia, Inc.in Opposition to MOTION by Defendants Comcast Spotlight, Inc., Comcast Corporation to dismiss the Refusal to Deal Claims as Restated in the Amended Complaint {{45}}

Interested in this case?

Current View

Full Text

Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 1 of 16 PageID #:392 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS VIAMEDIA, INC.,)) Plaintiff,) Case No. 16-cv-5486) v.) Hon. Amy J. St. Eve) COMCAST CORPORATION, and) COMCAST SPOTLIGHT, LP,)) Defendants.)) PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS THE REFUSAL TO DEAL CLAIMS Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 2 of 16 PageID #:392 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... ii INTRODUCTION ......................................................................................................................... 1 ARGUMENT ................................................................................................................................. 3 I. COMCAST'S ACTIONS ARE IRRATIONAL BUT FOR THEIR ANTICOMPETITIVE EFFECTS...................................................................................... 4 II. THERE ARE NO ADMINISTRABILITY PROBLEMS.................................................. 8 IV. VIAMEDIA PROPERLY AMENDED ITS COMPLAINT............................................ 10 CONCLUSION ............................................................................................................................ 11 i Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 3 of 16 PageID #:392 TABLE OF AUTHORITIES Page(s) Cases Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) .....................................................................................................1, 7, 9, 10 Blankenship v. Pushpin Holdings, LLC, 157 F. Supp. 3d 788 (N.D. Ill. 2016) .........................................................................................6 CWCapital Asset Mgmt., LLC v. Chicago Prop., LLC, 610 F.3d 497 (7th Cir. 2010) .....................................................................................................8 Gonzalez v. City of Elgin, 2007 WL 4246899 (N.D. Ill. Nov. 28, 2007) ..........................................................................10 Metavante Corp. v. Emigrant Sav. Bank, 2009 WL 4556121 (E.D. Wis. Nov. 27, 2009) ..........................................................................8 Olympia Equip. Leasing Co. v. W. Union Tel. Co., 797 F.2d 370 (7th Cir. 1986) .....................................................................................................3 Robert W. Gordon, Esq. v. City of New York, 2016 WL 4618969 (S.D.N.Y. Sept. 2, 2016)...........................................................................11 SFG Commercial Aircraft Leasing, Inc. v. N59CC, LLC, 2010 WL 883764 (N.D. Ind. Mar. 8, 2010) ...............................................................................8 Sw. Paper Co., LLC v. Hansol Paper, 2013 WL 11238487 (C.D. Cal. Apr. 15, 2013) .........................................................................9 Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) .............................................................................................................9, 10 Viamedia, Inc. v. Comcast Corp., 2016 WL 6568074 (N.D. Ill. Nov. 4, 2016) .................................................................... passim ii Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 4 of 16 PageID #:392 INTRODUCTION1 As this Court has recognized, although the Supreme Court "'ha[s] been very cautious in recognizing' exceptions to the general rule allowing refusals to deal," certain types of refusal to deal do violate the antitrust laws. Viamedia, Inc. v. Comcast Corp., 2016 WL 6568074, at *16 (N.D. Ill. Nov. 4, 2016) (Dkt. 36). The Supreme Court's decision in Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585 (1985), in particular, "provides a viable path to liability for a refusal to deal claim" in circumstances where the defendant's refusal to deal is "'irrational but for its anticompetitive effect.'" Id. at *16 (quoting VBR Tours, LLC v. Nat'l R.R. Passenger Corp., 2015 WL 5693735, at *7 (N.D. Ill. Sept. 28, 2015)). Previously, the Court denied Comcast's motion to dismiss but concluded that Viamedia did not state a refusal-to-deal claim because its original complaint did not "allege[] or explain[] how Defendants' refusal to deal with [Viamedia] … has no rational procompetitive purpose." Id. However, the Court invited Viamedia to "file an amended complaint consistent with [the Court's] opinion." Dkt. 35. Viamedia did so on November 21, 2016, including several pages of factual allegations that articulate how Comcast's refusal to deal with Viamedia is indeed irrational but for its illegal anticompetitive effects. Dkt. 40 ("FAC") ¶¶ 154-68. Comcast now has moved to dismiss the refusal-to-deal claims in the FAC. Dkt. 45. The refusal to deal allegations in the FAC arise from Comcast's decision to exclude Viamedia, and the MVPDs that Viamedia represents, from the Interconnects that Comcast manages in many of the nation's largest television markets. An Interconnect is a critical piece of infrastructure that permits regional advertisers to purchase Spot Cable Avails from multiple MVPDs in the same DMA through a single point of contact. Viamedia provides Spot Cable 1 Terms not defined in the text have the same meaning as in the Court's decision on the previous motion to dismiss. Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 5 of 16 PageID #:392 Advertising Representation services to independent MVPDs who otherwise lack the equipment, staff, and expertise necessary to sell Spot Cable Advertising in-house. Without access to the Interconnect, however, Viamedia is effectively precluded from selling Spot Cable Advertising time to regional advertisers, and ultimately from representing MVPDs, who rely on the Interconnect for a substantial portion of their advertising sales. Because of Comcast's exclusion of Viamedia from the Interconnects, Viamedia has lost significant revenue, and several of its MVPD customers have been forced to switch to Comcast Spotlight for their Spot Cable Advertising Representation needs. See generally FAC ¶¶ 1-16. Comcast's actions not only hurt Viamedia. They are directly contrary to Comcast's own economic interests. Specifically, Comcast has clear economic incentives, both as manager of the Interconnect and as an MVPD participant, to maximize the number of MVPDs (and cable subscribers) participating in the Interconnect, either directly or through a third-party representation firm like Viamedia. Id. ¶¶ 154-56. Comcast itself acknowledges this incentive. Id. Viamedia has paid and offered to pay Comcast fair market value in exchange for accessing the Interconnects that Comcast manages. Id. ¶ 157. There is no cost to Comcast from dealing with Viamedia; in fact, dealing with Viamedia provides Comcast with "immediate benefits" by enabling the Interconnect to reach all subscribers in the relevant market. Id. ¶ 158. Viamedia is unaware of any other third-party representation firm or affiliated MVPD that was excluded in this way before Comcast excluded Viamedia. Id. ¶ 159-64. Nor is there any procompetitive justification for Comcast's refusal to deal. When Viamedia is forced out of the market, independent MVPDs must find a new third-party representation firm (e.g., replacing Viamedia with Comcast Spotlight) or else cease participating in the Interconnect entirely, further reducing the value of advertisements distributed through an 2 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 6 of 16 PageID #:392 Interconnect and reducing the Interconnect's revenue in that market. Id. ¶ 165. Comcast necessarily deals with its MVPD competitors in its role as Interconnect manager, moreover, just as many other large Interconnect managers across the United States deal with Viamedia and other third-party representation firms. Forbidding Comcast from excluding Viamedia and its clients from Interconnects thus poses no significant administrability problems. Id. ¶¶ 164, 167. And because neither Viamedia nor its clients are Interconnect managers, it is simply wrong to suggest that Comcast is somehow disadvantaged as an Interconnect manager by adhering to longstanding and uniform industry practice of allowing MVPDs to freely choose their representatives. In short, Comcast's refusal to deal does not offer any rational procompetitive benefits to Comcast. Its only plausible purpose is to eliminate Viamedia as a competitor to Comcast Spotlight in the Spot Cable Advertising Representation market. Id. ¶ 168. As this Court has held, that is enough to state a claim for refusal to deal. Comcast's motion to dismiss should be denied. ARGUMENT The allegations in the FAC state a straightforward refusal-to-deal claim. Comcast has denied Viamedia access to the Interconnect, which is " indispensable to effective competition" in the Spot Cable Advertising Representation market. Olympia Equip. Leasing Co. v. W. Union Tel. Co., 797 F.2d 370, 379 (7th Cir. 1986). And Comcast has done so even though (1) denying Viamedia and its customers access is directly contrary to Comcast's economic interests as Interconnect manager and as an Interconnect participant, and (2) Viamedia had paid and offered to continue to pay Comcast market rates for access. The only explanation for Comcast's refusal to deal with Viamedia is that Comcast wants to accomplish what it has been unable to achieve through old-fashioned competition: forcing Viamedia out of the market for Spot Cable 3 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 7 of 16 PageID #:392 Advertising Representation entirely, so that independent MVPDs have no choice but to use Comcast Spotlight's services. I. COMCAST'S ACTIONS ARE IRRATIONAL BUT FOR THEIR ANTICOMPETITIVE EFFECTS Comcast principally argues that its decision to exclude Viamedia was not illegal because it supposedly resulted in "procompetitive disintermediation." Mem. (Dkt. 46) at 6. "[P]rior to the alleged refusal to deal in Chicago and Detroit," Comcast asserts, "RCN and WOW gave control of their Spot Cable Avails to Viamedia, and Viamedia then allocated a portion of those avails to Comcast for sale to advertisers. Following the refusal to deal, Comcast established a direct relationship with RCN and WOW, removing the intermediary role of Viamedia." Id. at 5-6 (citations omitted). Comcast illustrates this claim with the following diagram: But the diagram is misleading in two crucial respects. First, the diagram improperly ignores the economic irrationality of Comcast's refusal to deal at the time it began. Comcast terminated Viamedia's and Viamedia's clients' access to the Chicago and Detroit Interconnects in June 2012. FAC ¶¶ 159-60. The immediate effect of this termination was to significantly reduce the number of eligible cable subscribers to the Interconnect in those DMAs, reducing the value of the Interconnect to regional advertisers and forfeiting fees Comcast otherwise would have received as the Interconnect manager. Id. Comcast continued to exclude MVPDs represented by Viamedia from the Interconnect until those MVPDs signed new contracts with Comcast Spotlight effective January 2016. Id. ¶¶ 124-31. During this three and one-half years, Comcast was not "disintermediating" anything. It was exercising monopoly power to simply exclude Viamedia and Viamedia's clients from the Interconnect, to 4 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 8 of 16 PageID #:392 Comcast's own economic detriment. Similarly, Comcast currently is excluding Viamedia and its client, Frontier Communications, from the Interconnect in Hartford, creating no efficiencies while reducing the number of cable subscribers reached by the Interconnect and forfeiting Interconnect fees in Hartford. Id. ¶¶ 136-37, 161. Second, even after Comcast forced MVPDs to switch to Comcast Spotlight, the diagram mischaracterizes Comcast's dual rule in the Spot Cable Advertising market. In the "Before" scenario, MVPDs contracted with Viamedia to act as their Spot Cable Advertising Representative. Viamedia then sold the MVPDs' advertising time to regional advertisers using the Interconnect platform. In the "After" scenario, MVPDs contracted with Comcast Spotlight to sell advertising time. Comcast Spotlight also then sells the MVPDs' advertising time to regional advertisers using the Interconnect. What Comcast's diagram omits, in other words, is the critical fact that the "Comcast" in the "After" scenario really represents two separate entities: Comcast Corporation as Interconnect operator and Comcast Spotlight as third-party representative for the MVPDs. Fairly read, the FAC clearly alleges that Comcast's scheme is to refuse to deal with Viamedia and then to bring in Comcast Spotlight as a replacement Spot Cable Advertising Representative: Before: MVPD ⇔ Viamedia ⇔ Interconnect (Comcast) ⇔ Regional Advertiser After: MVPD ⇔ Comcast Spotlight ⇔ Interconnect (Comcast) ⇔ Regional Advertiser Comcast obviously prefers that its own affiliate rather than Viamedia stand in between the MVPD and the Interconnect and regional advertisers. But to characterize Comcast's exclusion of Viamedia from the Spot Cable Advertising Representation market as "procompetitive disintermediation" is incorrect. The market involves intermediaries either way. And of course, on 5 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 9 of 16 PageID #:392 a motion to dismiss, disputes over which side's diagram reflects what is actually occurring must, as with other factual disputes, be resolved in Viamedia's favor. Blankenship v. Pushpin Holdings, LLC, 157 F. Supp. 3d 788, 791 (N.D. Ill. 2016). The Court previously observed that "at least with respect to the portion of advertising sales made through Interconnects, Defendants' refusing to deal with Viamedia offers potentially improved efficiency" because "[a]fter Comcast's refusal to deal, for the portion of Avails sold through an Interconnect, MVPDs simply deal with Comcast directly." Viamedia, 2016 WL 6568074, at *16. However, that determination did not reflect how the Spot Cable Advertising market operates—a misconception that Comcast again tries to sell in its diagram above. As the FAC explains, in fact "modification in the chain of distribution" just amounts to "replac[ing] one intermediary [(Viamedia)] with another [(Comcast Spotlight)]." FAC ¶ 165. The Court further observed that it "usually is procompetitive" when "manufacturers vertically expand[] to distribute their own product" and "cut[] out" the middleman. Viamedia, 2016 WL 6568074, at *11 n.8. But Comcast did not accept the Court's invitation to identify any specific efficiencies, e.g., what is Comcast's "own product" that is now being more efficiently distributed as a result of denying rival MVPDs the opportunity to deal with Viamedia? There is, in fact, no "vertical expansion" in any meaningful antitrust or business sense and Comcast does not explain otherwise. Its exclusion of Viamedia from the Interconnect merely replaces which third-party representation firm independent MVPDs use to sell advertising time to regional advertisers. As a result, there are no efficiencies that justify Comcast's anticompetitive conduct. It is telling as well that Comcast never explains why it is necessary to exclude Viamedia from the Interconnect to achieve any purported efficiencies. As Viamedia specifically alleges, it is not. FAC ¶ 166. Even if consolidating management of the Interconnect by Comcast and the 6 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 10 of 16 PageID #:392 provision of Spot Cable Advertising Representation services by Comcast Spotlight did create efficiencies—which Viamedia disputes for the reasons just explained2—there is no reason why Comcast cannot realize those efficiencies for Comcast Spotlight customers while still permitting MVPDs that contract with Viamedia to access the Interconnect. Comcast's only tangible point is that the elimination of its only competition for third-party Spot Cable Advertising Representation Services is in and of itself an efficiency. Comcast offers no authority for this topsy-turvy view of the antitrust laws. In fact, MVPDs chose to be represented by Viamedia prior to its exclusion from the Interconnect, unmistakably demonstrating that, "on a level playing field and absent any coercion or exclusion by Comcast, a substantial number of independent MVPDs would elect to use Viamedia. . . as their Spot Cable Advertising Representative instead of Comcast Spotlight." FAC ¶ 83. That freedom of choice is the essential goal of antitrust law. Comcast's position is largely the same as the one the Supreme Court rejected in Aspen. There, the monopolist argued that its refusal to deal simply reflected its desire to "disassociate itself from—what it considered—the inferior skiing services offered" by its competitor. Aspen, 472 U.S. at 609-10. But because previously "consumers [could] make their own choice on these matters of quality," the Court rejected this justification as insufficient. Id. at 610. Here, too, MVPDs can and do make their own choices about which Spot Cable Advertising Representation 2 Comcast incorrectly labels ¶ 166 of the FAC as a "concession" (Mem. at 2), when it is nothing of the sort. The FAC states that "even if" efficiencies existed, such efficiencies would not depend on excluding Viamedia from the Interconnect. FAC ¶ 166 (emphasis added). Comcast also argues that the Court should disregard the allegation in ¶ 166 because it is "conclusory." Mem. at 7. But as we explain, it is simply a fact—and not a "legal assertion" or "recital of the elements of a cause of action" (id.)—that Comcast has not demonstrated any efficiencies that require terminating Viamedia's access to the Interconnect. Put another way, whether Viamedia has access to the Interconnect of behalf of its own MVPD clients in no way affects Comcast's purported ability to offer MVPDs more "efficient" third-party representation services through Comcast Spotlight. 7 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 11 of 16 PageID #:392 provider offers superior service, at least in markets in which third-party representation firms are not excluded from the Interconnect.3 II. THERE ARE NO ADMINISTRABILITY PROBLEMS Comcast also argues that entertaining a refusal-to-deal claim here would create "administrability problems." Mem. at 6. But Viamedia simply seeks access to the Interconnect on behalf of its clients on the same terms that Comcast extends to other MVPDs. Comcast routinely deals with rival MVPDs and apparently is willing to deal with RCN and WOW so long as they are represented by Comcast Spotlight. FAC ¶¶ 126-31, 167. And Viamedia often accesses non-Comcast-controlled Interconnects on behalf of its represented MVPDs in other television markets. Id. ¶ 164. In fact, during the decades prior to Viamedia's exclusion from the Chicago and Detroit Interconnects, Viamedia is aware of no other third-party representation firm or MVPD that had ever been excluded from an Interconnect for any reason. Id. ¶ 163. Comcast identifies only one concrete matter that it thinks the Court is ill-equipped to handle: the allegation that Comcast's offer to Viamedia regarding the Chicago and Detroit Interconnects was "commercially unreasonable." Mem. at 7 (citing FAC ¶ 122). The concern is hard to understand. Federal courts routinely and with no great difficulty evaluate whether particular actions are "commercially reasonable." See, e.g., CWCapital Asset Mgmt., LLC v. Chicago Prop., LLC, 610 F.3d 497, 503-04 (7th Cir. 2010); SFG Commercial Aircraft Leasing, Inc. v. N59CC, LLC, 2010 WL 883764, at *2 (N.D. Ind. Mar. 8, 2010); Metavante Corp. v. 3 Comcast's argument that Viamedia's assessment of economic incentives ignores Comcast's "opportunity costs" fails for the same reason. Mem. at 12 n.8. Comcast faults Viamedia for "ignor[ing] the obvious opportunity cost of being blocked from dealing directly with MVPDs." Id. But Viamedia's participation in the Interconnect does not "block" any MVPD from dealing with Comcast. There is nothing stopping Comcast from courting MVPDs represented by Viamedia—so long as Comcast does not violate the antitrust laws or commit tortious interference in doing so. 8 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 12 of 16 PageID #:392 Emigrant Sav. Bank, 2009 WL 4556121, at *4-5 (E.D. Wis. Nov. 27, 2009); cf. Sw. Paper Co., LLC v. Hansol Paper, 2013 WL 11238487, at *4 (C.D. Cal. Apr. 15, 2013) (noting, in the context of a Robinson-Patman Act claim, that "a functional discount remains legitimate as long as there is a commercially reasonable relationship between the amount of the discount and either the additional costs incurred by the buyer or the costs avoided by the seller"). Comcast offers no reason why making that determination in this context should be any different. In any case, Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004)—which Comcast cites in support of its administrability argument—recognizes that regardless of any administrability concerns, "[u]nder certain circumstances, a refusal to cooperate with rivals can constitute anticompetitive conduct and violate § 2." Id. at 408 (emphasis added) (citing Aspen). The same "circumstances" the Supreme Court identified in Aspen and reiterated in Trinko are alleged in Viamedia's complaint, as well. In Aspen, "[t]he unilateral termination of a voluntary (and thus presumably profitable) course of dealing suggested a willingness to forsake short-term profits to achieve an anticompetitive end." Trinko, 540 U.S. at 409 (emphasis omitted).4 Likewise here, Comcast's unilateral termination of its voluntary and profitable course of dealing with Viamedia strongly suggests that Comcast is forsaking profits from the Interconnect so it can force Viamedia's customers to switch to Comcast Spotlight. FAC ¶¶ 154-58. And in Aspen, "the defendant's unwillingness to renew the ticket even if compensated at retail price revealed a distinctly anticompetitive bent." Trinko, 540 U.S. at 409 (emphasis omitted). Viamedia also specifically alleges that it "has paid and offered to pay Comcast fair market value in exchange for accessing 4 As this passage shows, Comcast once again "overstates the law" (Viamedia, 2016 WL 6568074, at *16) in contending as a blanket that "allegations of lost revenue are insufficient to support a unilateral refusal to deal claim." Mem. at 11. 9 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 13 of 16 PageID #:392 the Interconnects that Comcast manages" but that Comcast has nonetheless refused to deal. FAC ¶ 157. In sum, the FAC's allegations illustrate the same "willingness to forsake short-term profits to achieve an anticompetitive end" and "distinctly anticompetitive bent" that Aspen and Trinko found sufficient to state a claim despite the fact that courts may be "ill suited" for "[e]nforced sharing" generally. Trinko, 540 U.S. at 408-09.5 IV. VIAMEDIA PROPERLY AMENDED ITS COMPLAINT Finally, Comcast suggests that Viamedia's FAC is somehow calculated to "get around" this Court's prior ruling on Comcast's first motion to dismiss. Mem. at 8. But this case is nothing like Gonzalez v. City of Elgin, 2007 WL 4246899, at *3 (N.D. Ill. Nov. 28, 2007), where the plaintiffs did not oppose dismissal of indemnification claims and then attempted to re-plead those claims while "fail[ing] to even acknowledge. . . that the court has already addressed the indemnification issue." In dismissing Viamedia's refusal-to-deal claims as originally pleaded, the Court expressly allowed Viamedia to "file an amended complaint consistent with [its] opinion," Dkt. 35, and it stated only that "Viamedia's current allegations of an illegal refusal to deal cannot proceed." Viamedia, 2016 WL 6568074, at *16 (emphasis added). Viamedia amended its complaint accordingly, adding new allegations and supplementing others, to show why its refusal-to-deal claim had merit. It should not surprise Comcast that, in light of the Court's order, Viamedia would both restate and expand upon its original allegations to demonstrate a valid 5 Comcast briefly suggests that even if Viamedia has stated a refusal-to-deal claim in the Chicago and Detroit DMAs, it cannot state a claim as to other DMAs because Comcast not dealt with Viamedia in those markets. Mem. at 13. That is wrong. It is undisputed that Comcast and Viamedia had a prior course of dealing in Chicago and Detroit. The decision to exclude Viamedia from the Interconnects in new markets—even where Comcast previously allowed Viamedia's clients access when they were represented by Comcast Spotlight—is part and parcel of the same course of exclusionary conduct. See, e.g., FAC ¶ 136, 161. And none of the cases Comcast cites so much as suggest that a "prior voluntary course of dealing" must be established for each individual market. 10 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 14 of 16 PageID #:392 refusal-to-deal claim. Cf. Robert W. Gordon, Esq. v. City of New York, 2016 WL 4618969, at *4 (S.D.N.Y. Sept. 2, 2016) (holding that the law of the case doctrine did not apply where "the proposed amended complaint is not functionally identical to the original complaint––perhaps most obviously because the support for a disparate impact claim is significantly clearer in the new pleading"). Furthermore, contrary to what Comcast may say (Mem. at 12), the FAC directly addresses the Court's determination that the original complaint did not demonstrate why "Defendants' refusal to deal with [Viamedia]—separate from Defendants' other conduct like conditioning MVPDs' access to Interconnects on accepting Comcast Spotlight's services even for advertising sales that do not involve an Interconnect—has no rational procompetitive purpose." Viamedia, 2016 WL 6568074, at *16. As demonstrated above, Comcast's refusal to deal, irrespective of its other illegal conduct, has no rational procompetitive purpose. It only serves as a means of driving Viamedia out of the market. That Comcast's refusal hurts MVPDs as well as Viamedia, or that Comcast also engages in other prohibited activity, does not make the refusal to deal any less actionable. CONCLUSION The FAC plausibly—and properly—alleges that Comcast's refusal to deal is irrational but for its anticompetitive effects. Accordingly, Comcast's Motion to Dismiss should be denied. Dated: January 16, 2017 Respectfully submitted, /s/ Britt M. Miller Britt M. Miller Matthew D. Provance MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Tel: 312.782.0600 Facsimile: 312.701.7711 11 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 15 of 16 PageID #:392 bmiller@mayerbrown.com mprovance@mayerbrown.com AND Mark W. Ryan (pro hac vice) MAYER BROWN LLP 1999 K Street NW Washington, DC 20001 Tel: 202.263.3000 Facsimile: 202.263.3300 mryan@mayerbrown.com Attorneys for Plaintiff Viamedia, Inc. 12 Case: 1:16-cv-05486 Document #: 56 Filed: 01/16/17 Page 16 of 16 PageID #:392 CERTIFICATE OF SERVICE The undersigned certifies that on January 16, 2017, a true and correct copy of the foregoing PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO DISMISS THE REFUSAL TO DEAL CLAIMS was electronically filed with the Clerk of the Court for the United States District Court for the Northern District of Illinois using the Court's CM/ECF system, which will send a notice of electronic filing to all counsel of record. /s/ Britt M. Miller Britt M. Miller MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Tel: 312.782.0600 Facsimile: 312.701.7711 bmiller@mayerbrown.com Counsel for Plaintiff Viamedia, Inc.