Meredith Corp. v. SESAC LLC, No. 09 Civ. 9177 (PAE)., 2014 BL 57263 (S.D.N.Y.
Mar. 03, 2014).
The issue in this putative class action is whether SESAC's
licensing practices since 2008 have violated federal antitrust law. Plaintiffs
are groups of local television stations. They sue SESAC aand allege that, in practice, they must obtain licenses for some music in SESAC's
repertory. That is because SESAC's repertory is large and includes works so
ubiquitous that some are inevitably embedded in shows that the stations acquire
and wish to air. Plaintiffs contend that, since 2008, SESAC, with its
affiliates' assent, has taken steps to make illusory any alternative to the
blanket license it sells, which conveys the right to play the music of all SESAC
affiliates. Having insulated this product from
competition and forced local television stations to acquire it, plaintiffs
allege, SESAC has set an exorbitant price for that "all or nothing" license,
even though stations have no interest in buying the rights to the entirety of
SESAC's repertory. Plaintiffs assert that SESAC and its affiliates have thereby
1 of the Sherman Act, 15
U.S.C. § 1, by combining to unlawfully restrain trade; and §
2 of the same Act, 15
U.S.C. § 2, by conspiring to monopolize the market for the performance
rights to the musical works within SESAC's repertory. Plaintiffs also assert a
monopolization claim against SESAC under §
SESACmoved for summary judgment. The Court denied the motion as to all three counts, except that on
the § 1 claim, the Court granted summary judgment to defendants in two ways that
narrowed that claim. Specifically, the Court rejected plaintiffs' (1) per se
theory of liability; and (2) claim of an agreement to restrain trade among all
20,000-plus SESAC affiliates, as opposed to among only the far smaller subset
(under 1%) of affiliates who were party to a supplemental affiliation agreement
The Court first reviewed the history of antitrust litigation involving the PROs'
licensing practices. The Court then considered the § 1 claim, assessing whether
(1) the conduct plaintiffs assail is amenable to per se condemnation; (2)
there is adequate evidence of concerted action among SESAC's affiliates to
restrain trade; and (3) the evidence would support a conclusion that the
anti-competitive effects of SESAC's conduct outweighed its pro-competitive
tendencies, i.e., whether a jury could find harm to competition.
The Court then considered the § 2 claims, addressing first the monopolization
claim and then the claim of a conspiracy to monopolize.
Jordan Greenberger, Esq.
J. Greenberger, PLLC. A boutique law practice in Brooklyn, New York, concentrating on copyright, trademark, litigation and related matters.