December 08, 2005- Crosby & Higgins LLP Secures Appellate Victory Affirming Judgment at Trial
December 8, 2005
October 20, 2005 — Crosby & Higgins LLP played a significant role as a member of the New York Jets’ litigation team helping the company secure a key ruling in federal district court which allows the Jets to proceed with their antitrust action against Cablevision and the owners of Madison Square Garden.
Cablevision sought to have the case dismissed, claiming its alleged acts were immune under the Noerr-Pennington doctrine, which protects certain governmental petitioning activities. In rejecting Cablevision’s requested dismissal for all but one of the claims, Judge Baer held that the Jets had properly alleged that Cablevision’s bid to purchase the west side railyards “constituted a sham.” Judge Baer explained:
“If it becomes apparent that Cablevision indeed sought to acquire the West Side Rail yard for its own development project, defendants will likely be entitled to protection under Noerr-Pennington. However, if the Jets can establish the Cablevision never intended to acquire the property, but submitted a bid only to impede the Jets’ progress, immunity will be unavailable.”
“While Cablevision is generally free to engage in business or refuse to engage in business with whomever it chooses, it may not do so when the purpose of such refusal is to maintain a monopoly. As alleged, defendants’ ‘refusal to deal’ was predicated on an impermissible purpose, and thus if proven would subject Cablevision to antitrust liability.”
“In addition, at oral argument Cablevision asserted that its refusal to air the Jets’ ads was protected by Noerr-Pennington. This argument is far fetched. A refusal to engage in business with a competitor, i.e., a refusal to sell a competitor advertising time, is too attenuated to constitute an attempt to secure governmental action, even when those advertisements involve an issue of public concern.”
“Plaintiffs have adequately alleged that Cablevision’s efforts to block the Jets in state court constituted a sham. Further, on the record developed thus far I am unable to evaluate the merit, if any, of the state court actions, as well as the defendant’s motivation in initiating those actions. If Cablevision did indeed file successive suits without regard for their merit, but rather to impose additional expense and delay on the Jets, this conduct is not protected by Noerr-Pennington. Drawing all inferences in favor of the Jets, it cannot be established that Cablevision is entitled to Noerr-Pennington immunity.”
Crosby & Higgins LLP partner Todd A. Higgins, Esq. is a member of the legal team, along with attorneys from Kasowitz, Benson, Torres & Friedman LLP and Boise, Schiller & Flexner LLP that is prosecuting the case against Cablevision and Madison Square Garden on behalf of the New York Jets.