Disney once again failed to obtain antitrust class action lawsuit over its rejection of its ESPN and Hulu properties

Disney’s attempts to dismiss an antitrust class action lawsuit filed by streaming subscribers have once again been rejected, but the company won’t be seeking any cash now.

“The Court once again finds plaintiffs’ allegations sufficient to establish Disney’s market power in the well-defined SLPTV market in the United States,” U.S. District Judge Edward J. Davila wrote today in a mixed and mixed ruling for the Mouse House (read the order here) .

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In November 2022, YouTube subscribers in four states filed a class-action lawsuit alleging that Disney’s control over ESPN and Hulu allowed the Bob Iger-run media giant to “inflate market prices by raising the prices of its own products” as well as “set a floor price.” The bold lawsuit detailed that because Disney requires streaming services including YouTube TV and Sling TV to include ESPN in their entry-level packages, they are paying more for their subscriptions than they should.

The 82-page lawsuit further alleged antitrust violations because Disney’s control over content and distribution, including operational control over Hulu and its Hulu + Live TV, constituted a barrier to entry.

In tone and wording very similar to what it decided last October, an order partially granting and partially denying Disney’s latest move to dismiss the lawsuit filed in November 2022 will allow the case to continue in an even more limited form. However, Judge Davila in California also cut off any attempts at compensation from the plaintiffs in this case. With no cash on the table, the possibility of injunctions that would stop Disney from engaging in such antitrust violations in the future remains.

“Because Plaintiffs have expressly alleged that the terms of the MFN provision permit Disney to set a price floor and raise competitors’ ESPN prices (which translates into subscription package prices) whenever it raises Hulu prices, the Court finds that Plaintiffs’ allegations are sufficient to establish Disney’s market power in the well-defined SLPTV market in the United States,” Judge Davila wrote Tuesday.

The Walt Disney Company did not respond to a request for comment on today’s order. If and when they do, this post will be updated.

Of course, Disney is no stranger to recent antitrust allegations. Disney, like Warner Bros. Discovery and Fox, is facing an antitrust lawsuit filed in February from Fubo over the trio’s planned Venu sports streaming service. Venu will debut in the fall, just in time for the start of the NFL season, a league that doesn’t seem to have much to broadcast.

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