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From Antitrust Law Daily, October 30, 2015

Jury returns $6.31M verdict in Cox cable, set-top box tying suit

By Greg Hammond, J.D.

An Oklahoma City jury has returned an untrebled $6.31 million verdict against Cox Communications, Inc. for illegally tying its premium cable service to rental of a Cox set-top box, in violation of Section 1 of the Sherman Act (Healy v. Cox Communications, Inc., Dkt. 5:12-ml-02048-C).

Richard Healy, a consumer who purchased premium cable from Cox, alleged that Cox abused its substantial economic power in the market for premium cable by forcing subscribers, as a condition of purchasing its premium cable services, to rent the set-top boxes that it distributes.

“With this verdict the people of Oklahoma have scored a victory for fair competition which leads to lower prices and more innovation, which benefits everyone,” stated one of the plaintiff’s attorneys, Todd Schneider of Schneider Wallace Cottrell Konecky Wotkyns LLP.

Cox renewed its motion for judgment as a matter of law, or in the alternative for a new trial, yesterday, claiming: (1) Healy failed to present evidence sufficient to support a verdict on at least three separate elements of his claim, including coercion, substantial foreclosure of commerce, and market power; (2) evidence at trial made clear that Healy’s claim is not subject to the per se standard and must be analyzed under the rule of reason; and (3) Healy failed to present sufficient evidence of antitrust injury, causation, or damages.

Cox also has a pending petition before the Supreme Court, seeking review of a decision by the U.S. Court of Appeals in Washington, D.C., which upheld a ruling that Cox waived its right to arbitrate the class action antitrust suit. The petition asks: (1) whether, in a putative class action, a defendant waives its right to compel arbitration of the claims of absent class members by not filing its motion to compel arbitration of those class members until after the court has obtained jurisdiction over them by certifying a class; (2) whether, as the D.C. Circuit has held and the Tenth Circuit suggested, a defendant waives its right to compel arbitration by filing a motion for summary judgment simultaneously with a motion to compel arbitration or, as the Fifth Circuit has held, a defendant may file alternative motions to compel arbitration or for judgment on the merits; and (3) whether a reduction in the size of a class constitutes prejudice to plaintiffs sufficient to support a waiver of the defendant’s arbitration rights with respect to absent class members.

Attorneys: Margaret M. Zwisler (Latham & Watkins LLP), Bruce D. Sokler (Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.), and D. Kent Meyers (Crowe & Dunlevy, P.C.) for Cox Communications, Inc. W. Tucker Brown (Whatley Kallas, LLP), Todd M. Schneider (Schneider Wallace Cottrell Konecky Wotkyns), and Allan Kanner (Kanner & Whiteley LLC) for Richard Healy.

Companies: Cox Communications, Inc.

MainStory: TopStory Antitrust OklahomaNews

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