In Sunbeam Television Corp. v. Nielsen Media Research, Inc., 711 F.3d 1264 (11th Cir. 2013) (No. 11-10901), the plaintiff, a television channel operator, alleged that defendant Nielsen’s methodology for determining program ratings violated federal and state antitrust laws. The district court granted summary judgment in favor of defendant, finding that plaintiff had failed to offer sufficient evidence of a “willing and able” competitor that would enter the market but for the alleged exclusionary conduct. On appeal, plaintiff argued that the district court applied the wrong standard, contending that such a showing is necessary only when the plaintiff is a competitor of the defendant, and not, as is the case here, where the plaintiff is the customer of the defendant. The Eleventh Circuit disagreed and affirmed. Noting that this was an issue of first impression in the Eleventh Circuit, the court adopted the standard articulated by the D.C. Circuit and held that whether a plaintiff is a customer or a competitor, it must prove the existence of a competitor willing and able to enter the market but for the exclusionary conduct of the incumbent monopolist. Absent such evidence, a plaintiff is not an “efficient enforcer” of the antitrust laws and therefore lacks standing to pursue its case.
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Customer and competitor plaintiffs are subject to same antitrust test
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