9th Circuit Reverses NFL Sunday Ticket Antitrust Dismissal

The 9th U.S. Circuit Court of Appeals 2-1 reversed a lower court's dismissal of a class-action antitrust complaint against DirecTV and the NFL over the MVPD's Sunday Ticket package (see 1707030002). In the docket 17-56119 opinion Tuesday by Judge Sandra Ikuta and joined by George Steeh, the 9th Circuit said the allegations by the plaintiffs -- primarily sports bars and individual subscribers -- on their face are an adequate allegation of injury to competition, and even though the alleged antitrust conspiracy involves multiple levels of producers, distributors and sales, plaintiffs sufficiently allege an injury that can withstand motion to dismiss. In his dissent, Judge Randy Smith noted the Supreme Court 1977 Illinois Brick says indirect purchasers can't use a pass-on theory to recover damages and don't have standing. He said plaintiffs haven't alleged NFL teams set or conspired to set the price paid by consumers, and their claim for damages stemming from an alleged horizontal agreement among the teams fails that test. Defendants' outside counsel didn't comment Wednesday.