Laumann v. National Hockey League
Laumann v. National Hockey League
Opinion of the Court
CORRECTED OPINION AND ORDER
I. INTRODUCTION
These cases challenge restraints in the market for baseball and hockey broadcasting. The essence of plaintiffs’ argument is that the leágues — Major League Baseball (“MLB”) and the National Hockey League (“NHL”) — have conspired with regional sports networks (“RSNs”), who produce broadcasts for individual teams, as well as multichannel video programming distributors (“MVPDs”), who sell broadcasts to consumers, to maintain a system of “territorial exclusivity” that limits viewing options and inflates prices.
The details of that system are described in detail in a companion Opinion, also issued today, addressing the issue of class certification.
. Plaintiffs believe that this arrangement reflects an unlawful restraint of trade, and that if the league-wide agreement preventing out-of-market RSN distribution were eliminated, fans of out-of-market teams would be able to subscribe to “a la carte channels,” which would carry broadcasts only of the subscriber’s preferred team— at a lower price than the OMP. For example, a Yankees fan living in Iowa now has to purchase an OMP if she wants to watch a season’s worth of Yankees’ games— whereas in the but-for world envisioned by plaintiffs (“BFW”), the same fan would have the option of purchasing an OMP or getting an a la carte subscription from the Yankees’ RSN.
Defendants .have moved pursuant to Rule 702 of the Federal Rules of Evidence, (“FRE”) to exclude Dr. Noll’s expert opinions, alleging that his model suffers from, numerous methodological flaws that render his opinions unreliable as a matter of law. For the foregoing reasons, defendants’ motion is GRANTED in part and DENIED in part.
II. LEGAL STANDARD
The proponent of expert evidence bears the initial burden of establishing admissibility by a “preponderance of the evidence.”
To be admissible,, the proposed expert testimony must be based “on a reliable foundation.”
(1) the testimony is based upon suffi- ’ dent facts or data, (2) the testimony ’is the product of reliable principles and methods, and (3) the witness has reliably applied the principles and methods to the facts of the case.7
Although the Supreme Court has instructed district courts to focus “on [the] principles and methodology” employed by the expert and “not on the conclusions that they generate,”
District courts are charged with acting as “‘gatekeeperfs] to exclude in
Finally, it is often the case that some, but not all, of an expert’s opinions will meet the criteria of FRE 702. Indeed, it is routine for a party to retain a single expert to opine on a variety of issues that, while related, can be analyzed independently under the Daubert standard. In such cases, the court, as gatekeeper, has discretion to decide which opinions are reliable and which are not, from which it follows that a court may exclude portions of an expert report while admitting other portions.
III. PLAINTIFFS’EXPERT
Dr. Noll, a nationally-recognized sports economist, has submitted an expert report explaining why the prices of baseball and hockey broadcasts would decrease in the BFW.
In broad strokes, both models are built on the interplay between consumer demand and preferences for content (the “Demand Side”) and the supply chains that distribute that content (the “Supply Side”). In attempting to predict future outcomes in a hypothetical universe, the models de
Defendants attack Dr. Noll’s methodological approach to constructing both the Demand Side and the Supply Side, arguing that design flaws in each constitute independent bases for rendering his model unreliable as a matter of law under FRE 702 and Daubert.
IV. DEMAND SIDE
A. Summary of Dr, Noll’s Opinions
The price of the league bundles and a la carte channels in the BFW is driven by consumer demand.
At bottom, these estimates are predicated on the notion that consumers derive welfare, or utility, from spending time watching the live telecasts of their preferred teams, but only to a certain point— especially in light of price considerations
1. The Underlying Data
Before delving into the technicalities of the statistical analysis underpinning the Demand Side, it is important to review the underlying consumer viewership statistics — the observed, real-world áata buttressing the demand component of the model — in greater detail, as well as some corresponding assumptions Dr. Noll makes using that data. Because there is no observable data about consumer behavior in the BFW, utilizing real-world information is paramount in estimating otherwise unknown consumer preferences.
For its MLB OMP (“MLB Extra Innings”), DirecTV records the time and du~ ration of a single session of viewing a channel for each subscriber.
Dr. Noll uses this viewing data and various assumptions stemming from it to build the foundation of the Demand Side. Notably, as defendants are quick to point out, this foundation lacks any significant additional information regarding consumer demand and preferences. For instance, in modeling demand, Dr. Noll admits that he (1) never sought to obtain demographic data or other personal characteristics about OMP subscribers or baseball and hockey fans more generally, (2) never conducted or attempted to conduct any type of survey of subscribers or non-subscribers regarding viewing preferences or tastes for new products (to wit, a la carte offerings), (3) never sought to obtain specific information regarding price sensitivities of consumers, and (4). that he ignores information regarding package price variation.
2. Recovering the Demand Curve
So, how does Dr. Noll use the observed data and his assumptions to estimate demand? This is where things get complicated. According to Dr. Noll, “[t]he goal of the econometric estimation is to recover the distribution of consumer preferences for live teleeasts of the games of each team [] as well as consumer preferences for viewership and price sensitivity.”
These parameters are- ultimately determined using the Generalized Method of Moments (“GMM”), an estimation procedure commonly deployed by economists to study demand in markets with differentiated products. Without going into great mathematical detail — many pages of Dr. Noll’s declarations consist almost entirely of complex equations beyond the comprehension of the Court or the lawyers in this case — GMM works by using an iterative process in which experimental values are assigned to these parameters with the goal
Dr. Noll’s predicted moments come close to matching the actual moments drawn from the observed data in the existing world. Consequently, Dr. Noll concludes that “the explanatory power of the model to replicate the data from which it is estimated is high.”
After recapturing the demand curve, Dr. Noll turns to the second step of the model — predicting prices in the BFW. To do so, Dr. Noll uses data about demand in the actual world to simulate demand in a market where out-of-market RSNs are available a la carte.
3. Categorizing Fans and the Logit Error
One of the realities of the BFW, assuming bundles continue to exist, is that fans will have the choice between purchasing one or more a la carte channels or a traditional OMP. To simulate this competition on the Demand Side, Dr. Noll’s model sorts potential subscribers into one of three categories: (1) single-team fans, (2) two-team fans, and (3) multi-team fans.
Single-team fans subscribe to a bundle for access' to only one team. These are fans that “do relatively little viewing of any other team.”
Dr. Noll insists that this type of viewing utility is accounted for by a mathematical component built into his model called the “logit error.” The term logit error does not connote a mistake; rather, the error is a random component of the model that seeks to capture factors bearing on the utility a fan derives from watching a specific team beyond simply the time spent viewing that team.
4. Results of the Model
Dr. Noll’s model yields significantly reduced prices of bundles in the BFW. Specifically, the average monthly price of the MLB .tv package would decrease from $20.05 to $14.50.
Central to evaluating the reliability of those findings are the specific results Dr. Noll’s model yields for fans’ preferences between a la carte channels and bundles in the BFW. For both the MLB and the
Chart 1: Purchasing Decisions by Fail Type in the BFW-MLB.
Fan Type % Purchasing Standalone % Purchasing Bundle
Single-Team Fan_68___32
Two-Team Fan_ 81_19_
Multi-Team Fan_99■1
B. Defendants’ Key Modeling Criticisms
Defendants insist that these results are absurd and counterintuitive, signaling that something is amiss about Dr. Noll’s model. After all, common sense would suggest that the opposite of Dr. Noll’s model should hold true — fans interested primarily in one team would buy an a la carte channel, and fans interested. in several teams would buy a bundle. To that end, defendants rely on their own expert, economist Dr. Daniel McFadden, to highlight methodological flaws on the Demand Side.
To illustrate this problém, Dr. McFadden closely examines the process by which
As a result,'while Dr. Noll is able to match predicted viewing times in the BFW to observed viewing times in the actual world with some precision through the GMM. procedure, his model’s estimates about viewer preferences are inaccurate.
_Chart 2: Comparison of Subscriber Behavior-NHL
Subscriber Behavior_Actual % Dr. Noll’s Model %
Watches a single RSN_22.1_._50.6_
Watches two RSNs_12A_ 19.7
Watches more than two RSNs_65,8 29.7.
This simple fitting test reveals major differences between viewérs’ tastes as defined by the actual, observed data and those predicted by the GMM.
As another example, Dr. McFadden runs a different test to show that Dr. Noll’s model underpredicts the popularity of individual RSNs within league bundles across the board. The general pattern is that bundle subscribers “watch a lot more teams,” and a “higher share of them watch every team [or] any team” than Dr. Noll’s model predicts.
When asked how he would remedy this problem, Dr. McFadden testified that
[t]he standard procedure would be to try to get data ... from the entire population ... certainly first to go look and see if someone else has already collected it. But if you can’t find that, it would [be] common procedure [] to collect your own data, do your own survey, find out who is, for example, in this case who’s a fan and who is not, and perhaps also find out more about what their tastes are, whether they would consider buying or not at various suggested prices.82
He added that collecting surveys is “almost a standard in market research where this problem of estimating demand for new product” arises — “something that firms deal with all the time, and there is now a long tradition and a long history of using survey techniques to understand what’s going on and [to] make predictions.”
According to Dr. McFadden, the dearth of data in Dr. Noll’s model culminates in nonsensical results — namely those reported in Table 1 — which are driven by the logit error. Specifically, Dr. McFadden contends that Dr. Noll’s use of logit error in his model is “inappropriate” in this circumstance because of what is known as the “red bus/blue bus problem” — a function of the logit error that forces an overprediction of how many consumers will buy standalone RSNs instead of the bundle in the BFW.
Above all else, Dr. McFadden notes that this problem is exacerbated by Dr. Noll’s heavy reliance on mathematical assumptions and equations to derive properties of avatars. Dr. McFadden concludes that, “from a scientific point of view,” the red bus/blue bus problem shows that the Demand Side of Dr. Noll’s model is “very badly specified.”
C. Dr. Noll’s Response
Dr. Noll claims that his model does not suffer from data deficiencies, and moreover, that the seemingly counterintuitive results of his model make economic sense in that they reflect differing price sensitivities among categories of fans. According to Dr. Noll, “the parameters [ ] estimate[d] produce the result that the multi-team [fans] are the most price sensitive.”
'Suppose you are a Yankees fan. You couldn’t care less what the price of the Houston Astros channel is. Right? You are going to buy the- Yankees— you’re pretty price sensitive to it. All right? Now instead suppose you’re someone who just likes baseball[,] and you don’t care whether it’s the Houston Astros or the New York Yankees. You are more likely to look at the relative price of those two to decide which channel to subscribe to.92
Therefore, Dr. Noll insists that his model produces the result that for multi-team fans price sensitivity outweighs preference for diversity.
During Dr., Noll’s rebuttal testimony at the D.aubert hearing I asked whether, in simply' enjoying watching the game of baseball or hockey, multi-team fans would buy a package instead of one or two RSNs, which would heavily restrict the number of teams they could watch on any given day. Dr. Noll asserted that the “coefficient in the regression in the utility function” of his model — part of the logit error — accounts for that possibility.
The red bus/blue bus problem is not a problem of the model. The problem of the model is, in fact, in certain circumstances, the logit error is driving results or is affecting — I shouldn’t say driving— it is one of the factors producing results.*314 The right way to say it' is [the logit] introduces heterogeneity in consumer behavior. And .,. one of the ways to change the results that is going to make this look better, if you cared about it is, to make assumptions that reduce the effect of the logit error.95
Dr-. Noll also attempts to rebut defendants’ more pointed criticisms regarding the data on which he relied, or failed to rely, in designing the Demand Side. Mainly, he insists that it would have been impractical for him to do a survey.
Dr. Noll also attempts to show that Dr. Ariel Pakes, one of defendants’ Supply Side experts, relied on similar quantities and types of data in constructing avatars for a 2004 study estimating the demand for automobiles.
Finally, in response to Dr. McFadderis observation that Dr. Noll’s model under-predicts the number of channels bundle subscribers view, Dr. Noll insists that the time spent viewing a channel is more important than the number of overall channels a subscriber watches. According to Dr. Noll, “the ability of the model to predict should be evaluated on the basis of the ability to predict viewing time, not [on the basis of] whether a bunch of subscribers [ ] spent very little time watching that channel.”
D. Dr. Noll’s Demand Side Opinion Must Be Excluded
Calculating damages on the basis of predictions about hypothetical, counterfactual
There is no question that this task is enormously challenging, even for the most seasoned and distinguished of experts. But it is not impossible — it has been done before in similar circumstances.
Dr. Noll’s modeling'of demand in the BFW is unreliable because the Demand Side is largely untethered from the actual facts of this case.
1. The Foundation of the Recaptured Demand Curve Lacks Sufficient Data
It is easy to detect the symptoms of Dr. Noll’s over-reliance on mathematical assumptions, and under-reliance on actual data, in the initial demand curve he derives through the GMM procedure. Dr. Noll’s approach to recapturing this demand curve is casual, at best. In fact, his benchmark for estimating demand is essentially a hodgepodge of data sets — varying in their levels of completeness and detail — from MLB Extra Innings, MLB.tv, and NHL GameCenter Live, combined with an assumption about the size of the market for OMPs.
This perfunctory approach impugns the overall reliability of the GMM estimation, on which his entire model is built. For instance, Dr. Noll offers no principled reason, and points to no actual data regarding fan preferences, for his important assumption that the total number of viewers of a sport’s championship series should constitute the upper bound of the market for that sport’s OMP. He may be right, and this one assumption on its own does not necessarily sink the model, but that is besides the point. For demand to be reliably estimated, Dr. Noll needs a data-driven basis for his underlying assumptions, including those pertaining to the important issue of market shares. If a swath of baseball fans had been surveyed in some form, Dr. Noll might have gained a helpful insight into whether setting the upper bound of the market at the total number of World Series viewers was an appropriate assumption. Such survey data could have corroborated his approach, or it could have caused him to refine it. Either way, -without preference data, the reliability of an important assumption driving demand in the BFW remains in question. This type of unsupported assumption is all the more problematic when the actual data sets Dr. Noll relies on are not as robust as they could be. Some of these data sets contain subscriber location; others do not. Some contain information about exactly how much time a fan spent viewing each team; others do not. While Dr. Noll cannot be faulted for not being provided with certain information, in constructing a reliable
2. The Preferences of Dr. Noll’s Avatars Are Heavily Impacted by the Logit Error, Not Actual Data
Instead, Dr. Noll’s lack of reliance on actual data compounds the potentially harmful impact of his unsupported assumptions. Consider Dr. Noll’s sorting of consumers into single-team, two-team, and multi-team fans. Dr, Noll categorizes fans through a mathematical estimation procedure tied to viewing time. Acknowledging that fans may not distribute perfectly across these categories on the basis of viewing time alone, Dr. Noll relies on the logit error to provide “a shock that isn’t measured by what is already in there.”
Worse still, the logit error he relies on to compensate for his lack of preference data is susceptible to reliability issues because of the red bus/blue bus problem. While the Court is not nearly proficient enough in econometrics to evaluate the extent to which the red bus/blue bus problem might throw off Dr. Noll’s predictions, this much is clear: if Dr. Noll had leaned more heavily on actual preference data, he could have reduced his reliance on logit error and enhanced the reliability of his model. And, at minimum, he. could have tested his model more thoroughly to ensure that the logit error was not muddying his results.
3. The Results of Dr. Noll’s Model Demoristraté Its Unreliability
Actual preference data would have enabled Dr. Noll to distribute fans- into his three categories, and to evaluate the importance of viewing time as compared to other measures of potential bundle utility, in a much more reliable fashion. To prove that point, the Court need look no further than the questionable, hotly-sdebated • results of his fan sorting experiment. For ease of reference, Chart 1, which illustrates those results, ■ is reprinted below.
Chart 1: Purchasing Decisions by Fan Type in the BFW-MLB.tv
Fan Type_% Purchasing Standalone % Purchasing Bundle
Single-Team Fan'_68_32_
Two-Team Fan_81_ 19_
Multi-Team Fan_99_1
The parties thoroughly disagree over the meaning of these results, and the role the logit error plays in driving them.. To a layperson — even one who does not watch
Dr. Noll has an explanation for this. Assuming his model’s assumptions -about viewing preferences by category are correct, then the model’s results are economically sensible in that they are informed by the respective-price sensitivities of the categories of fans.
But, as with so many other opinions Dr. Noll offers on the Demand Side,- the real world data to support his price-sensitivity conclusion is nowhere to be found in the model. As Dr. McFadden points out, if an expert modeler lacked such information, “it would [be] common procedure [] to collect your own data, do your own survey, find out ... who’s a fan and who is not, and perhaps also find out more about what their tastes are, whether they would consider buying or not at various suggested prices.”
By contrast, Dr. Noll’s Demand Side model is so far removed from actual viewer preferences and tastes that a finder of fact could only speculate as to the reasons for the model’s seemingly nonsensical results. Dr. Noll claims that multi-team fans are more price-sensitive because the “model of their demand behavior ... kicks out that result.”
For instance, with some extra legwork, Dr. Noll might have uncovered data that multi-team fans’ supposed price sensitivity would actually tend to drive them out of the market altogether-rafter all, cable subscribers can watch a local baseball game almost every night during the season without paying extra for an out-of-market option.
4. Under FRE 702, Dr. Noll’s Testimony About Consumer Demand Must Be Excluded
Whether any of these possibilities are accurate is irrelevant — what matters is that Dr. Noll’s failure to obtain information about consumer tastes and prefer-enees and failure to study baseball and hockey viewing patterns more thoroughly create “too great an analytical gap between the data and the. opinion proffered.”
V. SUPPLY SIDE
A. Summary of Dr. Noll’s Supply Side Analysis
Because territorial restraints would no longer exist in the BFW, RSNs would be able to sell their content — in a la carte form — directly to out-of-market consumers. According to Noll, this change would spark a reconfiguration of the overall market for sports broadcasting, leading to greater consumer welfare.
1. The Supply Side in the C & Y Model
The C & Y Model, as described earlier, is a framework for assessing the result of “unbundling” television distribution — ie., of moving from (1) a distribution chain in which consumers are required to purchase bundled packages (of television channels) from MVPDs to (2) a distribution chain in which consumers may either purchase bundled packages or purchase a la carte channels. The C & Y Model examined the effects of unbundling on all broadcasting, not just sports broadcasting. They were interested in determining whether consumers would be better off in a world where they could pick and choose among individual networks — The History Channel, and Arts and Entertainment Network, and so on — instead of being forced to purchase a bundled cable package.
The C & Y Model documented two effects of unbundling. First, greater consumer choice, resulting from the existence of a la carte options, spurred competition, and tended to push prices down in the BFW. Second, the Supply Side bargaining that would transpire in response to unbun-dling introduced new costs into the supply chain, which tended to push prices up in the BFW.
In short, the C & Y Model concluded that the unbundling of television channels had two different effects, pulling in opposite directions, on the market for television distribution. The synthesis of these two effects is to restore consumers to essentially the same position as they were in before unbundling.
The crude way to summarize Dr. Noll’s analysis — and the essence of defendants’ criticism — is that he adopted the first half of the C & Y Model while ignoring the second. Following the C & Y Model, Dr. Noll posits that the “unbundling” of sports broadcasts — ie., the availability of a la carte RSNs — would have a downward effect on prices. But from there, Dr. Noll parts ways with the C & Y Model. Dr. Noll’s analysis does not include a Supply Side bargaining dynamic that results in MVPDs imposing mark-ups when distributing either a la carte channels or OMPs to consumers. Absent this bargaining dynamic, the second effect documented in the C & Y Model — the increased price of each particular RSN’s content — does not occur in Dr. Noll’s analysis. Accordingly, unlike in the C & Y Model, whose end result was neutral for'consumers, Dr. Noll’s analysis shows an obvious benefit to consumers— choices multiply, and prices drop.
Dr. Noll has a rationale for this deviation. According to Dr. Noll, there is no need to model bargaining between RSNs and MVPDs in the BFW, because “internet delivery [of RSN feeds] is a competitive substitute for delivery over an MVPD.”
With respect to the bargaining issue, there is a notable mismatch between what Dr. Noll has done and what defendants have accused him of doing. Defendants’ experts repeatedly argue that Dr. Noll’s analysis ignores bargaining in the BFW.
3. Other Assumptions Built into Dr. Noll’s Analysis
In addition to the deviation from the C & Y Model, Dr. Noll’s analysis also rests on three methodological assumptions — all contested by defendants — that propel the conclusion that consumers will be better off in the BFW. First, Dr. Noll assumes that RSN distribution in the BFW will not be subject to (or subject only to de mini-mus) “double marginalization,” and therefore, that it is unnecessary to account for double marginalization in the projection of BFW prices. Second, Dr. Noll assumes
B. Dr. Noll’s Supply Side Analysis Meets the Baubert Test
1. The Lack of Bargaining Between RSNs and MVPDs Is Justified
Defendants attack the exclusion of a bargaining dynamic from Dr. Noll’s analysis on three grounds. First, defendants argue that bargaining was the “central innovation” of the C & Y Model,
a. Deviation from the C & Y Model Is Not Ipso Facto Problematic
Defendants’ first argument is, in essence, an appeal to authority — -because C & Y included' a bargaining model, Dr. Noll should have as well. But plaintiffs have pointed to numerous reputable papers that use structural models but do not include a bargaining dynamic.
Here, the parties.disagree about whether sports broadcasting is such an industry. The details of that disagreement are not material to defendants’ Daubert challenge. Plaintiffs argue that “modeling bargaining is not called for where products are relatively similar.”
if there’s only one good that the producer is producing and there’s only one good that the [distributor] is marketing, then it makes sense ... to devise a contract where we maximize the joint profits from the endeavor and split it somehow between the two.142
When products are similar, it can be assumed that actors at different levels of a vertical supply-chain (such as RSNs and MVPDs) will negotiate fee-splitting arrangements that replicate acting in concert, which means from the perspective of consumers — and for the purpose of assessing consumer prices — no bargaining model is required. The real issue, then, is not whether it is sometimes permissible to jettison bargaining from a structural model, but rather, whether plaintiffs were right to do so in this.case. And that is a question that deserves “[vigorous cross-examination” at trial.
b. Dr. Noll’s Assumption About Internet-TV Substitution Is Plausible
Defendants’ second argument — while more promising — goes to the weight, not the reliability, of Dr. Noll’s analysis of the Supply Side. For analytic purposes, Dr. Noll’s rationale for jettisoning bargaining can be expressed in conditional form — if (1) the Internet distribution of baseball and hockey broadcasting is a competitive substitute for the television distribution of such broadcasting, then (2) MVPDs will lack bargaining power in the BFW.
Defendants dispute both steps of this logic. First, they argue that Dr. Noll has not proven his factual hypothesis — he has not shown that Internet distribution serves as a competitive substitute .for television distribution. Furthermore, even if Dr. Noll has proven his hypothesis prospectively — that plaintiffs are correct that Internet distribution increasingly will serve, as a competitive substitute for television distribution — it did not do so during much of the class period.
Second, defendants also take issue with the conclusion of Dr. Noll’s argument regarding Internet distribution. Assuming, arguendo, that Internet distribution and television distribution would serve as competitive substitutes from the perspective of consumers, it does not follow, in defendants’ view, that MVPDs would lack bargaining power. For support, defendants point to the fact that in the actual world, “the RSNs’ [ ] business model is premised upon negotiating for carriage [of the con
This argument is a red herring. The observation that RSNs currently derive much of their business from carriage on MVPDs, though true, sheds no light on the contours of the BFW. In the actual world, RSNs are effectively forced to derive business from carriage on MVPDs. The whole point of plaintiffs’ legal theory is that in the BFW, RSNs would have another way of making profits — by selling directly to consumers via the Internet.
If RSNs made a greater share of their profits by selling directly to consumers, it follows logically that they would make a lesser share of their profits from carriage fees. But this observation, on its own, does not help defendants’ position. They argue that “MVPDs will not pay [the same] carriage fees” they do in the actual world, if, in the BFW, “consumers can bypass the MVPDs and obtain the same programming [online].”
c. The Existence of RSNs in the BFW
Finally, defendants argue that Dr. Noll has not justified his threshold assumption that RSNs would exist in the BFW. According to defendants, this is hardly a foregone conclusion, for “it is not clear what role, if any, [RSNs] would have in the BFW given that RSNs are by definition ‘regional’ and fundamentally a byproduct of [territorial restraints].”
The problem with this argument is that the issue of who produces baseball and hockey broadcasts has no bearing on how those broadcasts are priced. When Dr. Noll describes the BFW in narrative form, defendants are correct that he identifies RSNs as the producers of baseball and hockey broadcasts. But Dr. Noll’s invocation of RSNs is simply a holdover from the actual world, not an essential feature of his analysis. The point is that whoever produces the broadcasts, Dr. Noll’s prediction is that the broadcasts will end up being distributed to consumers at lower prices than in the actual world — ie., that the supply chain in the BFW, however it is precisely configured, will settle to a competitive, profit-maximizing equilibrium. That prediction may end up being wrong. But if so, it will be wrong for reasons that
2. Dr. Noll’s Other Assumptions Go to the Weight, Not the Reliability, of His Supply Side Analysis
a. No Double Marginalization
First, defendants fault Dr. Noll for failing to account for the phenomenon of “double marginalization,” which, according to defendants, stems from “the fact that independent businesses in vertical supply relationships” — here, RSNs and MVPDs— “each set a price to earn, a profit.”
Plaintiffs have the better of this argument. Double marginalization refers to the adverse economic consequences that flow from a supply chain in which two monopolists command super-competitive prices in vertical sequence. When this occurs, the result is that prices rise so high, and output diminishes so much, that (1) consumers lose out, but also (2) both monopolists are worse off than they would be if they acted in concert. In this sense, double marginalization is bad for all parties involved — producers as well as consumers — because prices are marked up to super-competitive levels twice over, which causes demand to plummet, curbing overall profit. Accordingly, producers always have an incentive to avoid double marginalization whenever possible.
This observation alone disposes of defendants’ argument. Given that producers have a natural incentive to avoid double marginalization whenever possible, the question is whether it is possible, in this particular market, for producers to avoid double marginalization. That is an issue of fact, not one of methodological integrity. As such, it does not support a Dau-bert challenge. Plaintiffs argue that in the BFW, RSNs and MVPDs would not tolerate any significant amount of double marginalization, and that they would use profit-sharing mechanisms — mechanisms already established in the industry — to circumvent double marginalization.
There is room for reasonable disagreement about which side has the more compelling view of the sports broadcasting in
b. Feeds to the OMP
■ Second, defendants believe Dr. Noll has made the implausible assumption that RSNs would pledge their broadcasts to the OMPs in exchange for one-thirtieth of the OMPs’ overall profits (in baseball). According to defendants,, more popular clubs — e.g., the Yankees — would have, an incentive to demand more than one-thirtieth of the overall share, because their broadcasts are comparatively more valuable than other clubs’, broadcasts. In short, why would clubs, like the Yankees not simply withdraw from the bundle and sell their content exclusively a la carte?
To this, plaintiffs offer two responses. First, they point out that in the actual world, teams áre prohibited — by league rules — from withdrawing from the bundle. In this sense, Dr. Noll is simply making the modest assumption that current léagué rules would stay intact. Second, plaintiffs argue that even granting defendants’ premise — that the league rules could change in the BFW — there is no economic reason to think they would change.
Because plaintiffs’ first response disposes of the Daubert question, it is unnecessary to address the second. Regardless of whether Dr. Noll, was ultimately right to assume .that league rules would stay constant in the BFW, the assumption is not an economic one. Rather, it is a factual assumption about the leagues as institutions. That this assumption has economic implications — potentially quite significant ones — does not change its nature. Assuming that' current league rules will stay intact in the BFW is akin to assuming that in the BFW, the baseball season will continue to be one hundred and sixty-two games, or that baseball playoffs will continue to consist of three rounds (rather than — as is the ease in hockey — four). In principie, there is nothing stopping the league from modifying the length of the season, or changing the format of playoffs; just as, in principle, there is nothing stopping the league from reforming its rules regarding RSN feeds. To hypothesize that the status quo will persist, however, is not an unreasonable factual assumption, even if it is a factual assumption that ends up being wrong.
The thrust of defendants’ argument to the contrary is that economically, there are reasons to think that current league rules will not stay intact in the BFW — because it would be in the interest of many clubs to dissolve the rules and permit deviation from the bundle. Plaintiffs disagree.
In a sense, defendants’ argument about league rules falls prey to the same problem as their argument about double marginalization. In each setting, Dr. Noll has made an assumption that, even if it proves unconvincing on the facts, is facially plausible — indeed, a good deal more plausible than the contrary assumption. First, Dr. Noll has assumed that RSNs and MVPDs will take steps to circumvent an outcome— double marginalization — that typically undermines the interests of all actors within the market. Second, Dr. Noll has assumed that current league rules will stay intact. For the reasons just discussed, this position may turn out to be 'wrong. But it strains credulity to suggest that this assumption is so unreliable as to merit discarding Dr. Noll’s Supply Side analysis.
c. Joint Venture Pricing
Third, and finally, defendants argue that Dr. Noll erred in assuming that in the BFW (1) the price of the OMPs and (2) the prices of a la carte channels would be set competitively — as though the league and its clubs operate at arm’s length. According to defendants, the more accurate model .of-the leagues and its clubs would be that of'a joint venture. If so, the proper framework, for predicting prices would be a “multi-product pricing” model — a framework whose economic viability is “uncontested,” and whose application “would result in higher prices for the two products” at issue here, the OMPs .and the a la carte channels.
Plaintiffs’ response is simple. If the league and the clubs were to set prices as a joint venture, according to a “multi-prod-uct pricing” model, that itself would be collusive. Put simply, the reason Dr. Noll assumed that prices would be set competitively in the BFW is that to assume otherwise would be, in effect, to allow “the' leagues [to] replace the current anticom-petitive prices (and inflated prices) with other anticompetitive prices in the BFW.”
Dr. Noll: [Your experts] think it’s perfectly fine for a standalone joint venture*328 to act in a way that attempts to maximize the horizontal competitors’ joint profits. That’s fine. I don’t think that’s a legitimate way to model it; your experts do.
Defense Counsel: Are you saying it’s unlawful?
Dr. Noll: I don’t know whether it’s unlawful. I’m simply saying I believe that it’s illegitimate as [an] economist to have cooperative price-setting among horizontal competitors as the way you try to figure out damages in an antitrust case. I think that’s not [correct].158
In response, defendants argue that Dr. Noll has overlooked the fact that in the BFW, each club would “have a unilateral incentive to take into account the effect on the related party” — ie., the league— “when setting price[s].”
[N]ow GM is setting the price for both. They own both products. They get the profits from both products. So [GM would] increase the price of the Pontiac by one dollar. It gets a dollar from everybody who stays, and some people leave, but [unlike in the scenario where Chevy is owned by another company] they don’t lose the mark-up on everybody who leaves. Why? Because some of the people who leave go to the Chevy because it’s also a family-sized car. So they’ll keep increasing the price more until that equilibrium is established again. So that’s what’s going on in mul-tiproduct pricing. [And] [y]ou can ... show [mathematically that] it has to increase pricing.160
Dr. Noll decided that analyzing BFW prices this way would violate “legitimate” principles of economic modeling — in essence, because he thought it would reflect collusion. Defendants respond that Dr. Noll is wrong on the law; that in fact, multi-product pricing would occur in the BFW “without [ ] collusion.”
3. Dr. Noll’s Testimony About the Supply Side, Extracted from the Damages Model, Is Admissible
The final question is whether the Supply Side analysis can be analytically severed from Dr. Noll’s damages model. The answer is yes. Because the damages model lacks a solid foundation in existing data, it does not reliably demonstrate whether, and how much, class members were overcharged for OMPs. But nothing about that defect spills over to Dr. Noll’s Supply Side analysis. The shortcoming of Dr. Noll’s Demand Side analysis — and the unreliability of his damage calculations — holds true whether or not the Supply Side is properly configured. The admissibility of Dr. Noll’s Supply Side analysis stands (or falls) on its own.
For the reasons set forth above, I conclude that Dr. Noll’s Supply Side analysis, extracted from the damages model, survives scrutiny under Rule 702. Some or all of Dr. Noll’s assumptions about the Supply Side may end up being unconvincing — which would weaken plaintiffs’ case on the merits. But that issue must be resolved by a fact-finder. It would be inappropriate for the Court to exclude Dr. Noll’s Supply Side analysis at this stage.
VI. CONCLUSION
For the reasons set forth above, defendants’ motion to exclude the opinions and testimony of Dr. Roger Noll is GRANTED in part and DENIED in part. The Clerk of the Court is directed to close this motion, Dkt. No. 277 in 12 Civ. 1817, and Dkt. No. 354 in 12 Civ. 3704.
SO ORDERED.
. The purpose of this Corrected Opinion is to change a typographical error on p. 34. The original Opinion contained the sentence: “Instead, time and time again, Dr. Noll substitutes actual, readily-obtainable information for mathematical assumptions in determining how hockey and baseball fans will behave' in the BFW.” That sentence was accidentally inverted. The revised version now reads: "Instead, time and time again, Dr. Noll substitutes mathematical assumptions for actual, readily-obtainable information in determining how hockey and baseball fans will behave in the BFW,”
. See Certification Opinion.
. United States v. Williams, 506 F.3d 151, 160 (2d Cir. 2007).
. Fed.R.Evid. 702.
. United States v. Tin Yat Chin, 371 F.3d 31, 40 (2d Cir. 2004).
. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Accord Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
. Fed.R.Evid. 702 (emphasis added).
. Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
. Kumho Tire, 526 U.S. at 157, 119 S.Ct. 1167 (quotation marks and citations omitted).
. General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).
. Johnson Elec. N. Am. Inc. v. Mabuchi Motor Am. Corp., 103 F.Supp.2d 268, 283 (S.D.N.Y. 2000).
. Baldwin v. EMI Feist Catalog, Inc,, 989 F.Supp.2d 344, 349 (S.D.N.Y. 2013) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 449 (2d Cir. 1999)).
. Davis v. Carroll, 937 F.Supp.2d 390, 413 (S.D.N.Y. 2013). Accord Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir. 2002).
. Amorgianos, 303 F.3d at 267 (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786).
. See, e.g., Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., No. 13 Civ. 5242, 97 F.Supp.3d 485, 507, 2015 WL 1499449, at *17 (S.D.N.Y. Mar. 31, 2015) (striking some, but not all, of a single expert's opinions); Federal Hous. Fin. Agency v. Nomura Holding Am., Inc., No. 11 Civ. 6201, 2015 WL 640875, at *3 (S.D.N.Y. Feb. 16, 2015) (same).
. Defendants do not challenge Dr. Noll’s academic or professional qualifications.
. See 2/23/15 Corrected Reply Declaration of Roger G. Noll ("Dr. Noll Reply Decl.”); 9/19/14 Supplemental Declaration of Roger G. Noll ("Dr. Noll Supp. Decl.”); 2/18/14 Declaration of Roger G. Noll ("Dr. Noll Decl.”). For reasons explained below, Dr. Noll twice tweaked the model he offered in his first declaration in response to criticism from defendants’ experts. Yet all of these models are considered "interim” models — the Court did not require a final model at this early class certification stage of the litigation.
. See Gregory S. Crawford & Ali Yurukoglu, The Welfare Effects of Bundling in Multichannel Television Markets, 102 Am. Econ. Rev. 643 (2012) ("C & Y”).
. See generally Memorandum of Law in Support of Defendants’ Joint Motion to Exclude Opinions and Testimony of Plaintiffs’ Expert, Dr. Roger Noll (“Def. Mem.”); Reply Memorandum of Law in Support of Defendants’ Joint Motion to Exclude Opinions and Testimony of Plaintiffs’ Expert, Dr. Roger Noll ("Reply Mem.”).
. See 3/17/15 Transcript of Proceedings, Dkt. 339 ("Day 1 Tr.”); 3/18/15 Transcript of Proceedings, Dkt. 341 ("Day 2 Tr.”); 3/19/15 Transcript of Proceedings, Dkt. 343 ("Day 3 Tr.”). The hearing concluded with summations by counsel for plaintiffs and defendants addressing both the reliability, or lack thereof, of Dr. Noll’s model and how the Court's decision on the Daubert challenge bears on class certification. See Day 3 Tr.
. As mentioned above, Dr. Noll ultimately made two adjustments to his original model in designing the Demand Side in response to criticism from the defendants’ experts. The most recent version of Dr. Noll’s model, outlined in his February 23, 2015 declaration, was the primary focus of the Daubert hearing. It is this third version I will analyze here, unless otherwise noted.
. See, e.g., Day 1 Tr'. at 64-65.
. See id. at 66.
. See id.
. Id. at 67.
. See Dr. Noll Decl. at 100.
. Id.
. See Dr, Noll Supp. Decl. at 5. Dr. Noll states that the data that .the MVPD providers for the NHL OMP produced were "too fragmentary to support estimating the same model.” Id.
. See Dr. Noll Decl. at 100.
. See Dr. Noll Supp. Decl. at 25.
. See id. at 26. For the purposes of modeling, Dr. Noll assumes that all subscribers paid the price of the most popular package. See id.
. See id. at 26-27.
.' See id. at 27.
. See id.
. See id.
.See id.
. See id. at 27-28.
. See, e.g., Day 3 Tr. at 476-478, 512.
. SeeDaylTr. at 130-131.
. Dr. Noll Supp. Decl. at 31-32.
.See Day 1 Tr. at 67-68.
. See id. at 68.
. Id.
. See id. at 68-69.
. See id. at 69. Because a perfect match between predicted moments and observed moments is impossible, the GMM procedure stops once the match is as close as possible. The moments themselves characterize the shape of the statistical distribution of a particular variable. See id. at 70-71. They are calculated by using the means and standard deviations of viewing data, bundle market share, and price-cost margin.
. Id. at 80.
. Id.
. See id. at 82. For a detailed discussion of the Supply Side, see infra Part IV.
. See Day 1 Tr. at 91. His first two models did not distribute fans in this manner. The adjustment in the third model responded to critiques of defendants' Demand Side expert, who demonstrated that Dr. Noll’s second model was unresponsive to drastic changes in viewership patterns, producing the same results regardless of those changes. See Dr. Noll Supp. Decl. at 12-13. Therefore, the fan categories of the third model attempt to account for a wider range of viewership patterns.
. Day 1 Tr. at 80.
. See id.
. See id.
. See id. at 137 ("[T]he proportions of people who are one, two, and many are determined by the estimation procedure to maximize the explanatory value of the three-way categorization.”).
. See id. at 137-138.
. See id. Imagine a die-hard Yankees fan who spends , ninety percent of his baseball-watching time viewing only Yankees games, but ten percent of the time, he might want to check in on games featuring the Yankees' division rivals — perhaps even more than ten percent of the time if the division is particularly competitive that season.
. See id. at 138.
. Id.
. See id. at 140.
. Id. at 171.
. Id. at 175.
. Id. at 179.
. See Dr. Noll Reply Decl.
. See id.
. See id.
. See Defendants’ Demonstratives and Exhibits ("Def. Demonstratives”), Tab 8, at 13.
. See id. Of course, there is a limit to the number of a la carte channels that a fan would purchase — once the number of a la carte channels a fan is interested in purchasing exceeds the price of the bundle, or is about the same, the fan would be better off buying the bundle.
. See id,
. See id.
. See Day 2 Tr. at 359-360. Dr, McFadden won the Nobel Prize for developing methods to study discrete choice — situations where consumers have to choose between .one product or another. See id. According to Dr. McFadden, Dr. Noll "is using discrete choice models and analysis at die core of his demand analysis.” Id. at 360. Plaintiffs do not challenge Dr. McFadden’s credentials as an ex,p ert,
. Id. at 383.
. At the beginning of his testimony at the Daubert hearing, Dr. McFadden offered three guiding principles for evaluating the reliability of the demand component of structural models. First, when modeling demand, "you ■ should be using data on consumer behavior rather than say, for example, mathematical assumptions.” Id. at 362 (emphasis added). Second, the model’s predictions should be "falsifiable,” such that the model should not yield certain' kinds of results in situations where different demand inputs are used to alter the expected predictions. See id. Third, the "model should be consistent' with observed consumer behavior [,] particularly on dimensions that are important for that application.” Id. (emphasis added).
. The same method is applied to the NHL and viewers of its championship series, the Stanley Cup.
. Id. at 366.
. Id. at 369.
. See id. at 373.
. Def. Demonstratives, Tab 8, at 9. Testimony regarding similar MLB data was stricken from the record because Dr. McFadden's MLB charts were not disclosed to plaintiffs in advance of the Daubert hearing. See Day 2 Tr. at 374.
. Day 2 Tr. at 377; see also Def. Demonstratives, Tab 8, at 12.
. See Day 2 Tr. at 377; Def. Demonstratives, Tab 8, at 12.
. Day 2 Tr. at 377.
. See id. at 367.
. See Day 1 Tr. at 123-128. In their study, Crawford and Yurokoglu based their model on a variety of sources of information, including surveys of random samples of consumers about media usage, consumer behavior, and demographics. See C & Y at 653. The information they gleaned factored into their GMM estimates. See id. at 668-671.
. Day 2 Tr. at 367-368.
. Id. at 368.
. Id. at 380.
. See id.
. See id. at 380-381.
. Id. at 381.
. Id. at 382.
. Id. at 383.
. Day 1 Tr. at 182.
. Id. at 180.
. Day 3 Tr. at 439.
. Id. at 444. Dr. Noll does not actually know the value for this parameter but assumes the lowest possible value to be conservative. See id.
. Id. at 493.
. Id. at 494.
. See id. at 480.
. See id.
. See id.
. See id.
. See id. at 430;. Steven Berry, James Lev-insohn, and Ariel Pakes ("BLP”), Automobile Prices in Market Equilibrium, 63 Econometrica 841 (1995).
. ’ See Day 3 Tr. at 430.
. See id. -at 431.
. See id. at 476.
. See id. at 476-478.
. Id. at 437.
. See id. at 437-438.
. In re Se. Milk Antitrust Litig., No. 08 Civ. 1000, 2010 WL 5102974, at *2 (E.D.Tenn. Dec. 8, 2010).
. See C & Y at 16-19 (explaining how demand for individual channels was estimated, using a combination of existing viewership data and demographic data).
. Fed.R.Evid. 702.
. See, e.g., Fishman Transducers, Inc. v. Paul, 684 F.3d 187, 195 (1st Cir. 2012) (excluding expert who failed to undertake “difficult, time-consuming and expensive efforts” to obtain "direct testimony from customers, [or] market research surveys of [product] purchasers as to their reasons for purchases,” noting that, without them, "[the expert’s] report was merely a basis for jury speculation”).
. See Fed.R.Evid. 702.
. For- instance, defendants complain that Dr. Noll’s model relied on.average monthly prices of the most popular league bundle subscriptions instead of inputting a variety of subscription prices into the model to account for consumers’ tolerance to price variation. See Dr. McFadden Deck ¶38.. In. isolation, this modeling shortcut, does not bear too heavily on the reliability of. the overall model. The cause for concern is that without surveys of consumers’ preferences for products at various suggested price points, or additional data reflecting such preferences, it is virtually impossible to gauge reliably how price sensitivities would affect demand in the BFW, or how important it would be to build the differing package prices into the model.
. See, e.g., C & Y; BLP.
. See Dr. Noll Decl. at 27-28.
. See Dr. McFadden Decl. ¶ 38 (noting that 47 percent of NHL GameCenter Live subscribers, 73 percent of MLB.tv subscribers, and 34 percent of MLB Extra Innings subscribers pay a different price from the one assigned by Dr. Noll).
. See Fishman Transducers, Inc., 684 F.3d at 195.
. Day 1 Tr. at 175,
. Id. at 179.
. See Day'2Tr. at 379-381.
. Day 3 Tr. at 494.
. Day 2 Tr. at 367-368.
. See C & Yat 653,
. Day 2 Tr. at 368. Dr. Noll's excuses for not conducting surveys or attempting to incorporate additional information are unconvincing, especially considering that his failure to do so seems to be a stark departure from the industry norm. Additionally, throughout the course of expert discovery and the various iterations of his model, Dr. Noll and plaintiffs were on notice of defendants’ concern that the Demand Side was not sufficiently tied fo viewer preferences, but they stood by the sparse data in Dr. Noll's model anyway. Dr. Noll’s declarations speak to the infeasibility of separating fans into 435 categories, but not to doing a survey of a relatively small group of people using a conjoining analysis. See Day 3 Tr. at 482.
. Day 3 Tr. at 485.
. Indeed, one can envision a number of ways in which a price-sensitive fan — even a noñ-cable-subscriber — could get his baseball or hockey fix without paying for a standalone RSN or OMP, Fans can read about every play of every game online in real time and watch extensive highlights of every game on MLB.
.It may be that a non-negligible percentage of "multi-team fans” are fans not of many teams, but of many players across different teams. To this end, it might have been useful to seek data regarding the impact of the rise of fantasy sports on OMP subscriptions, including the growing trend towards daily fantasy sports. In this context, fans are interested in observing the performance of a collection of players across a range of different teams each night, as- opposed to the performance of only one or two teams, Participants in daily fantasy sports, who pay to play, consume forty percent more sports content— across all media, including television — once they begin playing. See Brent Schrotenboer, Leagues See Real Benefits in Daily Fantasy Sports, USA Today (Jan. 1, 2015), http://www. usatoday. com/story/sports/2015/01/01/daily-fantasy-sports-gambling-fandu'el-draftkings-nba-nfl-mlb-nhl/21165279/ (noting that "daily fantasy sports consumption will have a steroid effect on television revenue, because nobody watches live sports on television quite as intensely as fans with money at' stake”). But the teams they support — and are interested in watching — change every night; they might only view a given game for a very short window of time, just to check in on the at-bat of a single player. Fantasy sports aside, a "multi-team fan” may wish to view games of different teams each night based on intriguing pitching match-ups or other player-specific interests. Dr. Noll’s model does not incorporate any real data regarding consumer tastes to account for any of these possibilities, which may or may not have a significant impact on estimating demand.
. Joiner, 522 U.S. at 146, 118 S.Ct. 512. Because the underlying demand data is the same for the third model as it is for Dr. Noll’s first two, it is unnecessary to examine the first two models more closely, to the extent that plaintiffs believe they are still viable. All versions of Dr. Noll’s model suffer from the same fatal data sufficiency flaw on the Demand Side.
. See Daubert v. Merrell Dow Pharms., Inc. (Daubert II), 43 F.3d 1311, 1317 (9th Cir. 1995) (noting that "in .determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist’s normal workplace is the lab or the field, not the courtroom or the lawyer’s office”); see also Awad v. Merck & Co., 99 F.Supp.2d 301, 304 (S.D.N.Y. 1999), aff'd sub nom. Washburn v. Merck & Co., 213 F.3d 627 (2d Cir. 2000) (noting that in determining reliability under Daubert, "a significant consideration is whether research was conducted independently or for the sole purpose of litigation").
. See C & Y at 4 (“There are two countervailing forces that largely determine our results. First, for fixed input costs, unbundling unlocks consumer surplus.... Allowing renegotiation, however, increases costs [and] [p]rices follow suit, making the average consumer indifferent [to unbundling].”).
. Day 2 Tr. at 298.
. Id.
. See id. at 315 (where Dr. Paites explains that the C & Y Model did not result in a "statistically significant” increase in prices). This is true, at least, with respect to prices. It is still possible (indeed, it seems quite likely) that some consumers would be better off in the BFW, even taking for granted the C & Y Model’s assumptions about bargaining, depending on their specific preferences. For example, a consumer that only wanted The History Channel — a rough analogue to the single-team fan — would no doubt prefer the unbundled world, even if the price per channel was substantially higher than it was in the bundled world.
. Noll Decl. at 102.
. Day 3 Tr. at 447.
. For example, Dr. Pakes testified that "[t]he MVPDs don't enter Dr. Noll's model at all. They’re just not there,” and likewise, that Dr. Noll "doesn’t assume anything” about the MVPDs. Day 2 Tr. at 299. Accord Reply Mem. at 6-9.
. C & Y at 2. Accord Def. Mem-, at 15 (arguing that Dr. Noll "eschewed” the .core of the C & Y Model).
. .Def. Mem.-at 13.
. Noll Decl. at 102.
. See Memorandum of Law in Opposition to. Defendants’ Joint Motion to Exclude Opinions and Testimony of Plaintiffs’ Expert Dr. Roger G. Noll ("Opp. Mem.”), at 11 n. 7 (noting that "since C & Y was published,” there has been “a significant number of papers by well-known economists in top-tier journals that employ structural models without bargaining” — and listing examples). It is also worth noting that Dr. Crawford and Dr. Yurukoglu, the creators of the C & Y Model, worked with Dr. Noll in crafting his analysis. See 10/22/14 Letter from Plaintiffs to the Court, at 2 (Dkt. No. 273).
. Def. Mem. at 13.
. Opp. Mem. at 12.
. Day 2 Tr. at 304.
. Amorgianos, 303 F.3d at 267 (internal citations omitted).
.See Def. Mem. at 17.
. See Certification Opinion (certifying an injunctive class under Rule 23(b)(2), but not a damages class under Rule 23(b) (3)).
. Def. Mem. at 17.
. Id.
. Id. at 18.
. Id.
. Reply Mem. at 9.
. See Opp. Mem. at 14 nn. 15-16 and accompanying text (explaining how, in the actual world, contracts between clubs, RSNs, and MVPDs are designed to avoid double marginalization). Accord Day 1 Tr. 152-154 (Dr. Noll discussed the mechanisms currently in use, and that would continue to be used, to avoid double marginalization in sports broadcasting — e.g., setting mandatory retail prices).
.See Reply Mem. at 9-10. Accord Day 2 Tr. at 303-305 (explaining why, when downstream distributors — here, MVPDs — sell different products, double marginalization can occur as a consequence of every up-stream supplier — here, every RSN — maximizing its profits):
. In passing, it bears note that even the authors of the C & Y Model — Crawford and Yurukoglu — appreciated this feature of the television broadcasting industry. See C & Y at 14 n. 43 (acknowledging] that their pricing assumptions are "often considered unrealistic" due to the availability of means to circumvent double-marginalization).
. Defendants argue that if .the Yankees were to withdraw from the OMP in the BFW (assuming the parameters of the BFW set by Dr. Noll’s analysis), all teams would be better off — making the result economically rational. See Reply Mem. 10-11. In response, plaintiffs suggest that this result, though accurate, is misleading. Every lucrative club would have an incentive to withdraw, to the point that the OMP, having lost its most valuable content, would cease to exist. According to plaintiffs, it is well-established that, on balance, the OMP is lucrative — i.e„ the clubs would prefer that the OMP exist. Given this, and given the fact that allowing individual clubs to withdraw from the OMP would result in the OMP’s demise, plaintiffs reason that the league would decide to preclude individual clubs from peeling óff — just as it does today. As Dr, Noll put it, this "problem [] is always
. Reply Mem. at 12.
. Opp. Mem. at 16.
. Day 3 Tr. at 505.
. Id.
. Reply Mem. at 12 (emphasis in original).
. Day 2 Tr. at 306.
. Reply Mem. at 12.
. See American Needle, Inc. v. National Football League, 560 U.S. 183, 200-02, 130 S.Ct. 2201, 176 L.Ed.2d 947 (2010) (explaining that joint ventures, insofar as they give would-be competitors cover for collusive action, trigger antitrust scrutiny). See also Starr v. Sony BMG Music Entm't, 592 F.3d 314, 327 (2d Cir. 2010) (noting that the activities of joint ventures are subject to the Rule of Reason). For further background on the Rule of Reason itself, see Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 885, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (“The rule of reason is the accepted standard for testing whether a practice restrains trade in
. Day 3 Tr. at 524.
Reference
- Full Case Name
- Thomas LAUMANN, Robert Silver, Garrett Traub, and David Dillon, representing themselves and all other similarly situated v. NATIONAL HOCKEY LEAGUE, Defendants Marc Lerner, Derek Rasmussen, and Garrett Traub, representing themselves and all other similarly situated v. Office of the Commissioner of Baseball
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- 4 cases
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- Published