Cumulus Media New Holdings Inc. v. The Nielsen Co. (US), LLC

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26-88
Cumulus Media New Holdings Inc. v. The Nielsen Co. (US), LLC
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: May 7, 2026
Decided: July 13, 2026
No. 26-88
C UMULUS MEDIA N EW H OLDINGS INC.,
Plaintiff-Appellee,
v.
THE N IELSEN C OMPANY (US), LLC,
Defendant-Appellant.*
Appeal from the United States District Court
for the Southern District of New York
No. 25-cv-8581, Jeannette A. Vargas, District Judge.
* We grant Cumulus’s motion to file its letter brief in response to our April
30, 2026 order under seal.

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Before: PÉREZ and N ATHAN, Circuit Judges, and KATZMANN, Judge.†
This antitrust appeal concerns radio broadcasting data vital for
radio networks hoping to sell advertisements on their stations
nationwide. Nielsen, a market research firm, collects and sells radio
audience data in hundreds of local geographic areas and collates that
information into a national radio broadcasting report—the only
product of its kind. Cumulus, a major audio media company that
operates both a national audio network and local radio stations, seeks
to buy Nielsen’s one-of-one national radio report, as well as some of
its local data in certain local markets. In other local markets, it hoped
to purchase data from a competitor. But a new Nielsen policy
prohibits audio networks like Cumulus from purchasing Nielsen’s
national data report unless they also agree to purchase Nielsen’s local
data products in all markets in which they operate. As the parties
began to discuss a new contract, that policy soon impeded their
negotiations. Nielsen’s new policy—and subsequent offers that were
impacted by that policy—put Cumulus to a choice: purchase
Nielsen’s local data in all relevant geographic markets, or purchase
its preferred local data from a competitor and lose the ability to buy
Nielsen’s crucial national data product.
Cumulus sued, arguing that Nielsen’s new policy is an
anticompetitive tying arrangement in violation of the Sherman Act.
The district court agreed. It concluded that Nielsen unlawfully tied
its local data products to its national data product, used its monopoly
† Judge Gary S. Katzmann, of the United States Court of International Trade,
sitting by designation.

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power in the national data market to force Cumulus into purchasing
unwanted local data products, and distorted competition in local data
markets by fencing out competitors. It thus granted Cumulus a
preliminary injunction prohibiting Nielsen from expressly or
constructively enforcing its new tying policy. Nielsen appealed. On
these facts, we hold that the district court’s decision to grant a
preliminary injunction was not an abuse of its discretion, nor does its
injunction violate the specificity requirement of Rule 65(d).
Moreover, we hold that we need not automatically stay this appeal in
light of Cumulus’s intervening bankruptcy petition. AFFIRMED.
KATHERINE B. WELLINGTON,
Hogan Lovells US LLP,
Boston, MA (Charles
Loughlin, Jennifer Fleury,
Michael J. West, Hogan
Lovells US LLP, Washington,
DC, Claude Szyfer, Hogan
Lovells US LLP, New York,
NY, on the brief) for Cumulus
Media New Holdings Inc.,
Plaintiff-Appellee.
THOMAS H. D UPREE JR .,
Gibson, Dunn & Crutcher LLP
(Helgi C. Walker, Zachary B.
Copeland, Gibson, Dunn &
Crutcher LLP, Washington,
DC, Jefferson E. Bell, Gibson,
Dunn & Crutcher LLP, New

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York, NY, on the brief) for The
Nielsen Company (US), LLC,
Defendant-Appellant.
NATHAN, Circuit Judge:
Defendant-Appellant The Nielsen Company (US), LLC
collects, compiles, and sells radio broadcasting data that tracks
audience listenership and reach across the United States. It sells two
different types of products: local radio data, which reflects
listenership in specific geographic areas, and national radio data,
which consists of all local data assembled into a comprehensive
nationwide report. Nielsen is the only supplier of national radio data
in the United States. Both types of data are critical for large radio
broadcasters like Plaintiff-Appellee Cumulus Media New Holdings
Inc., which uses national data to sell advertising time on its national
radio networks, and local data to sell the same to advertisers on its
local radio stations.
Nielsen once offered its national and local data products
separately. But that changed in 2024, when it adopted a new policy
barring national broadcasters like Cumulus from purchasing a
functional version of its national report unless they also purchased all
relevant local data products from Nielsen as well. That policy posed
a problem for Cumulus, as it hoped to buy Nielsen’s national report
but only some of Nielsen’s relevant local data. Cumulus wanted to
buy at least some other local data from a competitor of Nielsen’s.
After contract negotiations between the parties reached an

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impasse on those grounds, Cumulus sued Nielsen, claiming that its
new policy is an anticompetitive tying arrangement in violation of the
Sherman Act. Following discovery and a hearing, the district court
agreed and granted Cumulus a preliminary injunction. We review
for abuse of discretion and affirm that interlocutory order. The
district court did not abuse its discretion when it concluded that
Nielsen’s new policy—enforced both expressly and constructively—
was an unlawful tie, because Nielsen exploited its monopoly in the
national radio data market in order to force customers like Cumulus
to purchase its local data products. Nor did the district court abuse
its discretion by finding that Nielsen’s conduct caused
anticompetitive effects in the relevant local data markets, that
Cumulus would suffer irreparable harm as a result of the new policy,
and that the public interest and the balance of equities tipped in
Cumulus’s favor. We further hold that the district court’s injunction
is sufficiently specific and tailored to remedy Cumulus’s harm, and
we agree with both parties that we may resolve this appeal despite
Cumulus’s interceding bankruptcy petition.
This interlocutory appeal raises several complicated issues of
antitrust law. On this preliminary posture, we resolve them in favor
of Cumulus, mindful of the deference we owe to the district court’s
factual findings and discretionary decisions. Accordingly, we affirm
the district court’s order in full.
BACKGROUND
A. Factual Background
This antitrust dispute concerns radio broadcasting data that
drives the price and placement of advertisements on radio stations

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across the country. Cumulus, one of the largest audio media
companies in the United States, sued Nielsen for its allegedly
anticompetitive conduct in the sale of that crucial data.
The following facts are drawn from the district court’s findings,
to which we defer unless they constitute clear error. See D.L. Cromwell
Invs., Inc. v. NASD Regul., Inc., 279 F.3d 155, 158 (2d Cir. 2002). In
creating this factual record, the district court considered, among other
things, “the Complaint, documents cited in the Complaint, and
deposition testimony and declarations submitted by the parties.”
Cumulus Media New Holdings, Inc. v. Nielsen Co. (US) LLC, No. 25-cv-
8581, 2026 WL 63294, at *1 (S.D.N.Y. Jan. 8, 2026).
Both Nielsen and Cumulus are major players in the radio
industry. Cumulus is a broadcaster that operates 395 radio stations
nationwide and distributes audio content to over 9,500 other affiliated
stations through its syndication network, Westwood One. Like other
broadcasters, Cumulus generates revenue by selling advertising
space—i.e., commercial time on its various radio stations—to
advertisers. Nielsen, for its part, is a market research company that
collects, analyzes, and sells radio ratings data. Nielsen collects
audience listening statistics in more than 270 geographic areas; it then
compiles that local information into a national ratings report known
as the Nationwide Report (Nationwide). It sells both its Nationwide
product as well as data in each discrete local area it surveys. Nielsen
has one competitor in the local radio data space: Eastlan, which
surveys listeners and produces radio data primarily in “smaller-
sized” geographic markets as well as in geographic markets where
Nielsen does not operate. Cumulus, 2026 WL 63294, at *3. But Nielsen

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has no competitors in the market for national radio ratings data, in
which it enjoys a 100% market share.
Both national and local data are essential for broadcasters such
as Cumulus. National audio networks and local radio stations alike
generate revenue by selling advertisements, so broadcasters use both
types of data to market their available advertising inventory. For
example, while advertisers purchasing time slots on national radio
reasonably seek to assess a broadcaster’s national reach (that is where
Nationwide comes in), advertisers purchasing time slots in only
certain local markets seek data that reflects that area’s specific
listenership. Accordingly, Cumulus needs both types of data to
adequately price and sell its time slots to different kinds of
advertisers.
Nielsen has historically offered Nationwide and its individual
local ratings data as separate products. However, in 2024, it
announced a change to that practice. Nielsen’s new “Network Policy”
prohibits broadcast networks that operate “a local station in a
Nielsen-measured market” and do not “subscribe” to Nielsen’s local
ratings data in that market from purchasing Nielsen’s Nationwide
product with the inclusion of data for “that specific market[.]”
Cumulus, 2026 WL 63294, at *4. For example, if a national
broadcasting network also operates local stations in 30 markets and
purchases only Nielsen’s Nationwide product—not Nielsen’s local
data—Nielsen will omit data for those 30 local markets from
Nationwide.1 Nielsen says it adopted the Network Policy in order to
1 Nielsen’s Network Policy applies only to customers who operate both a
national broadcasting network and local radio stations. That comprises 12

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stop national broadcast customers from sharing Nationwide with
their local affiliates for free, making decisions for those local affiliates
based on information in Nationwide, or extracting the relevant local
data from Nationwide without paying for it. According to an
executive at Nielsen, the Policy was designed to “bring groups with
non-subscribing markets back to the negotiation table,” “command
subscriptions in local markets,” and “prevent networks from getting
data through the back door.” Appellee’s Suppl. Sealed App’x 440.
But it is undisputed that a Nationwide product that exempts data
from certain local markets is not useable. Indeed, in Nielsen’s own
words, the exempted Nationwide product is “like Swiss cheese”—
and in Cumulus’s case, that “Swiss cheese” national product would
exclude data from numerous geographic markets where Cumulus
operates, including major markets such as San Francisco, Los
Angeles, and New York City. See Cumulus, 2026 WL 63294, at *6.
The Network Policy and its impact on the parties’ contract
negotiations lie at the heart of this dispute. We briefly summarize
those negotiations below. Cumulus’s previous contract with
Nielsen—executed before the development of the Network Policy—
was set to expire at the end of 2025. Under that contract, Cumulus
had purchased both Nationwide and Nielsen’s local data in 76
discrete markets. However, before the parties began to negotiate a
new contract in May 2025, Cumulus decided that it no longer wanted
to subscribe to some of those 76 local markets. Instead, it determined
customers, including “the three largest companies in radio,” which together
control about a third of all radio advertising spend. Cumulus, 2026 WL
63294, at *4.

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that the cost of Nielsen’s local ratings data had outstripped their value
in most local radio markets, and it intended to switch to Eastlan—a
lower-cost alternative—in at least some of those markets.
Accordingly, at the outset of negotiations, Cumulus informed Nielsen
that it wished to purchase only its local data in certain markets, not
the full suite of local markets that Cumulus had previously
purchased.
But the Network Policy impeded that possibility. In June,
Nielsen made its first offer to Cumulus: the full Nationwide product,
“plus local service in every local market in which Cumulus operates
radio stations.” See id. at *5. Nielsen followed that up with another
offer that also included all local markets in which Cumulus operates.
Cumulus, however, did not want to subscribe to all of those local
markets. So Cumulus asked Nielsen to provide a price for the
Nationwide product alone, as well as market-by-market pricing for
the local data it sought to purchase. Nielsen refused to provide either
price, citing its Network Policy. See id. at *6 (quoting a Nielsen
executive stating that a standalone price for Nationwide was “not
possible to achieve in light of our policy on local subscription”).
Instead, in line with its Network Policy, Nielsen offered Cumulus its
desired subset of local markets but only the “Swiss cheese” version of
Nationwide, which omitted data from all other local markets where
Cumulus operates. Nielsen told Cumulus that it would sell the full
version of Nationwide only if Cumulus also subscribed to all local
markets in which Cumulus operates. Cumulus counteroffered for
only its desired subset of local markets.
In August, the negotiations reached an impasse. Cumulus then

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sent a cease-and-desist letter, claiming that Nielsen’s Network Policy
violated the antitrust laws by unlawfully tying its products together
(its Nationwide product and its data in the local markets) and
threatening to file suit if Nielsen continued to enforce the Network
Policy. About a month later, Nielsen responded by exempting
Cumulus from the Network Policy by offering, for the first and only
time in the negotiations, a price for Nationwide as a standalone
product. The offered price was at least 150% more than any other
national network paid for Nationwide, and it was also “ten times
more than what Cumulus was paying for Nationwide under its
existing contract.” See id. Cumulus did not accept. Finally, on
October 16, 2025, Nielsen offered Cumulus its full Nationwide
product plus local data in all 80 markets where Cumulus operates—
which again included local markets that Cumulus did not want to
purchase from Nielsen. That same day, Cumulus filed this lawsuit in
the United States District Court for the Southern District of New York.
B. Procedural Background
Cumulus in its complaint accuses Nielsen of violating Section 2
of the Sherman Antitrust Act, 15 U.S.C. § 2, by creating an unlawful
tying arrangement—what Cumulus calls “a textbook abuse of
monopoly power.”2 Compl. at 2. An unlawful tying arrangement
occurs when a seller uses its economic power in one market to coerce
a buyer into purchasing a different product in a separate market by
refusing to sell the two products separately. Here, Cumulus claims
that the Network Policy “ties” Nielsen’s Nationwide product to its
2 Cumulus also asserted five other causes of action in its complaint, none of
which are relevant for the purposes of this interlocutory appeal.

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local data products and forces Cumulus into an illusory choice: either
purchase Nielsen’s local data in all markets, or use competitor Eastlan
for local data, but receive only Nielsen’s unusable “Swiss cheese”
Nationwide Report. And though Nielsen later offered Cumulus a
standalone price for full Nationwide, Cumulus argues that the
exorbitant price of Nielsen’s offer left Cumulus with the same illusory
choice. Because Cumulus cannot buy national data from anyone else,
and because Nielsen’s exorbitant price for standalone Nationwide
means it is not economically viable for Cumulus to separately
purchase local data from its preferred vendor, Cumulus says the
Network Policy has effectively foreclosed its ability to purchase
Eastlan’s local data and distorted competition in the relevant local
data markets by fencing out competitors. All this, Cumulus says,
constitutes an unlawful tying arrangement prohibited by the
Sherman Act.
On the same day it filed its complaint, Cumulus moved for a
preliminary injunction, seeking to bar Nielsen from imposing any tie
related to Nationwide during the parties’ negotiations. After a three-
day evidentiary hearing featuring testimony from economics experts
and the parties’ representatives, the district court granted Cumulus’s
motion. We summarize the district court’s relevant findings of fact
and conclusions of law below. At the outset, the district court
determined that Cumulus sought to alter the status quo and therefore
subjected its motion to the more demanding standard for mandatory
injunctions. But even under that heightened standard, the district
court concluded that Cumulus established a clear likelihood of
success on the merits of its tying claim as well as a strong showing of

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irreparable harm.
The district court first considered the merits of Cumulus’s
express and constructive tying claim. As an initial matter, it adopted
Cumulus’s definitions of the relevant product and geographic
markets which, “[f]or purposes of this preliminary injunction motion,
the parties are in agreement”: The product markets are those for
“local radio ratings data and national radio ratings data,” Cumulus,
2026 WL 63294, at *10, and the geographic markets are the United
States (national data) and “each local geographic area for which a
ratings report is generated” (local data), id. at *11. It then concluded
that “Nielsen’s Network Policy is an anticompetitive tying policy,”
reasoning that the Policy expressly conditions the availability of
Nationwide on a buyer’s purchase of Nielsen’s local data, that Nielsen
had used its monopoly power in the national data market to coerce
customers into purchasing its local data, and that Nielsen’s conduct
had unlawfully restrained competition in the various local data
markets. Cumulus, 2026 WL 63294, at *12–14.
Though it recognized that Nielsen had facially exempted
Cumulus from the Network Policy, the district court found Nielsen’s
Nationwide-only offer to be “so exorbitant as to make it economically
unfeasible to purchase Nationwide as a separate product.” Id. at 13.
That high price, it said, “therefore served as a constructive tie.” Id.
The district court also recognized that tying arrangements are per se
unlawful—without regard to their anticompetitive effects—when the
perpetrator is a monopolist in the tying market, like Nielsen is for
national data. Id. But even absent such a per se rule, the district court
went on to analyze the anticompetitive effects of the constructive tie

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and concluded that Nielsen’s tying caused anticompetitive effects
because “Eastlan is effectively foreclosed from competing” with
Nielsen in many local markets. Id. The district court further rejected
Nielsen’s procompetitive justifications for its Network Policy on
grounds that they were both unsupported by the record and
pretextual. Id. at *14–15. All told, the district court concluded that
Cumulus was substantially likely to succeed on its claim that Nielsen
had unlawfully exploited its monopoly power in the national data
market to restrain competition in local data markets via both express
and constructive tying.
Next, the district court found that Cumulus made a strong
showing of irreparable harm on three grounds. First, it held that
“‘[t]hreatened economic harm to consumers is plainly sufficient to
authorize injunctive relief’ under Section 16 [of the Clayton Act].” Id.
at *15 (quoting New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d
638, 661 (2d Cir. 2015)). Second, it found that Cumulus would likely
experience “major disruption” of its business, loss of goodwill, and
decreased market share without access to Nationwide because it
would be unable to develop reasonable advertising proposals for the
coming year. Id. at *15–16. Advertisers, the district court found, were
therefore “all but guaranteed to shift some or all of their advertising
inventory purchases to competitors or refrain from purchasing
advertising inventory from [Cumulus] at all[.]” Id. at *16. Third, the
district court held that distortion of the relevant local ratings markets
due to anticompetitive behavior also constituted irreparable harm.
Thus it concluded that Cumulus carried its burden on the irreparable
harm prong. Finally, the district court determined that the balance of

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the equities and public interest favored Cumulus, reasoning that
Nielsen would suffer little harm from the injunction and that barring
anticompetitive behavior serves the public’s interest.
The district court granted Cumulus a preliminary injunction.
Its order barred Nielsen “from enforcing its Network Policy” and
“from charging a commercially unreasonable rate for its Nationwide
Report as a complete, standalone product.” Id. at *18. The order
further provided that “a rate that is equal to or lower than the highest
annual 2026 rate Nielsen charges any broadcaster (whether network
or local) for Nationwide is presumptively reasonable.” Id.
Nielsen thereafter moved the district court to stay the
preliminary injunction pending appeal. The district court denied
Nielsen’s motion for a stay pending appeal, but granted Nielsen’s
alternative motion for a short administrative stay to allow Nielsen to
seek relief from this Court. Nielsen then noticed this interlocutory
appeal and moved for a stay of the district court’s order pending the
appeal, a request that a motions panel granted in February 2026. In
the meantime, Nielsen filed an answer in the district court asserting
several counterclaims against Cumulus, all of which Cumulus moved
to dismiss.
On March 10, 2026, Cumulus notified the district court that it
had filed a petition for voluntary Chapter 11 bankruptcy. In the
notice, Cumulus explained its view that, under Section 362(a)(1) of the
Bankruptcy Code, its bankruptcy petition operated as an automatic
stay of Nielsen’s counterclaims because they were asserted “against
[a] debtor.” 11 U.S.C. § 362(a)(1). And though Cumulus reserved its
right to argue that its bankruptcy did not automatically stay its own

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claims against Nielsen (or this interlocutory appeal), it consented to a
stay of its claims below as a matter of the district court’s discretion.
The next day, the district court stayed litigation of Nielsen’s
counterclaims under Section 362(a)(1) and stayed the remaining
claims “pending further order[.]” By then, this expedited appeal was
well underway.
STANDARD OF REVIEW
We review the district court’s grant of a motion for a
preliminary injunction for abuse of discretion. State Farm Mut. Auto.
Ins. Co. v. Tri-Borough NY Med. Prac. P.C., 120 F.4th 59, 82 (2d Cir.
2024). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded
to it when (1) its decision rests on an error of law (such as application
of the wrong legal principle) or a clearly erroneous factual finding, or
(2) its decision—though not necessarily the product of a legal error or
a clearly erroneous factual finding—cannot be located within the
range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d
163, 169 (2d Cir. 2001) (footnote omitted). And a “finding is clearly
erroneous when[,] although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” Wu Lin v. Lynch,
813 F.3d 122, 126 (2d Cir. 2016) (quotation marks omitted). The abuse-
of-discretion standard requires, in other words, that we take three
different approaches to the district court’s order: We assume the
district court’s factual findings are true unless we are firmly
convinced they are wrong (clear error), we review the district court’s
legal rulings without deference (de novo), and we review the district
court’s discretionary decisions by asking whether they were within

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the range of permissible decisions.
DISCUSSION
Nielsen raises several challenges to the district court’s grant of
a preliminary injunction. It claims that the district court abused its
discretion in applying all four prerequisites for obtaining interim
relief, and that the resulting injunction is both too ambiguous and a
poor match for Cumulus’s asserted harms. In addition to reaching
these issues, we consider an antecedent one: the impact of Cumulus’s
pending bankruptcy on the status of this appeal.
I. Section 362(a)(1) Automatic Bankruptcy Stay
Before resolving the merits, we must decide whether to hold
this appeal until Cumulus’s bankruptcy proceedings conclude. See
Ostano Commerzanstalt v. Telewide Sys., Inc., 790 F.2d 206, 207 (2d Cir.
1986). Under Section 362(a)(1) of the Bankruptcy Code, also known
as the automatic-stay provision, a bankruptcy petition ordinarily
“operates as a stay, applicable to all entities, of . . . a judicial,
administrative, or other action or proceeding against the debtor that
was or could have been commenced” before the filing of the petition.
11 U.S.C. § 362(a)(1). The provision renders judicial proceedings,
including appeals, “void and without vitality if they occur after the
automatic stay takes effect.” Rexnord Holdings, Inc. v. Bidermann, 21
F.3d 522, 527 (2d Cir. 1994); see also Ostano, 790 F.2d at 207. The statute
limits the reach of the automatic stay to proceedings brought “against
the debtor,” which we assess based on the parties’ status at the outset
of an action rather than by who is “ahead” or who has appealed.
Teachers Ins. & Annuity Ass'n of Am. v. Butler, 803 F.2d 61, 64–65 (2d
Cir. 1986). That said, a counterclaim asserted against a debtor, like

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those Nielsen asserted against Cumulus in this case, also counts as a
“proceeding against the debtor” that must be stayed upon the filing
of a bankruptcy petition. See Koolik v. Markowitz, 40 F.3d 567, 568 (2d
Cir. 1994). That raises the question whether the assertion of a
counterclaim against a debtor triggers an automatic stay of the entire
action, including the plaintiff-debtor’s original claims. We hold that
it does not. Because an action must be “disaggregated” into claims
brought by and against a debtor, see Mar. Elec. Co. v. United Jersey Bank,
959 F.2d 1194, 1204–05 (3d Cir. 1991), Section 362(a)(1) does not stay
litigation over a debtor’s original claims.3
Our interpretation of Section 362(a)(1) begins with its text,
which we read not “in isolation” but “as a whole.” United States v.
Bulloch, 165 F.4th 676, 682 (2d Cir. 2026) (quotation marks omitted).
As the Third Circuit has explained, “the clear language of section
362(a) indicates that it stays only proceedings against a ‘debtor.’” Mar.
Elec. Co., 959 F.2d at 1204 (quoting 11 U.S.C. § 362(a)(2)). The
operative statutory term is “proceeding,” which the Bankruptcy Code
does not define. See 11 U.S.C. § 101. But in the bankruptcy context in
3 In doing so, we join the majority of circuit courts to have considered the
question. See Mar. Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1205 (3d Cir.
1991); U.S. Abatement Corp. v. Mobil Expl. & Producing U.S. (In re U.S.
Abatement Corp.), 39 F.3d 563, 568 (5th Cir. 1994); Parker v. Bain, 68 F.3d 1131,
1137 (9th Cir. 1995); Seiko Epson Corp. v. Nu-Kote Int’l, Inc., 190 F.3d 1360,
1364 (Fed. Cir. 1999); Lehman v. Revolution Portfolio L.L.C., 166 F.3d 389, 392
n.5 (1st Cir. 1999); In re Hall, 304 F.3d 743, 746 (7th Cir. 2002); Thomas v. Blue
Cross & Blue Shield Ass’n, 333 F. App’x 414, 420–21 (11th Cir. 2009)
(summary order); cf. Dominic’s Rest. of Dayton, Inc. v. Mantia, 683 F.3d 757,
760–61 (6th Cir. 2012).

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particular, the term “proceeding” is used to refer to “[a] particular
dispute or matter arising within a pending case—as opposed to the
case as a whole.” Proceeding, Black’s Law Dictionary (12th ed. 2024)
(emphasis added). After all, it is typical for bankruptcy cases to
comprise core and non-core proceedings, see In re Ben Cooper, Inc., 896
F.2d 1394, 1397–98 (2d Cir. 1990), which is strong evidence that
Congress intended the latter term to carry a narrower, specialized
meaning in this context, see United States v. Hansen, 599 U.S. 762, 774–
76 (2023). Indeed, Congress drafted at least one other bankruptcy
provision with precisely this distinction in mind, permitting district
courts to refer “proceedings . . . arising in or related to a case under title
11” to a bankruptcy judge. 28 U.S.C. § 157(a) (emphases added). To
define “proceeding” to be coextensive with an entire “case” would
collapse these careful distinctions.
Any lingering ambiguity in the statutory text is resolved by its
evident purpose. Cf. Mar-Can Transp. Co., Inc. v. Loc. 854 Pension Fund,
167 F.4th 581, 593 (2d Cir. 2026). We have explained that the rationale
behind the automatic stay is “to give the debtor time to organize its
affairs—which includes protection from having to defend claims
brought against the estate as well as continuing to pursue judicial
proceedings on its own behalf.” Teachers, 803 F.2d at 65. “The stay is
designed to provide the debtor with a breathing spell from his
creditors,” Koolik, 40 F.3d at 568 (quotation marks omitted), and lest
such proceedings “distract a debtor’s attention from its primary goal
of reorganizing,” Teachers, 803 F.2d at 65. Those goals are well-served
by permitting debtors to invoke the protections of the automatic stay
against counterclaims, but would be frustrated by an interpretation of

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Section 362(a)(1) that permitted defendants to delay a debtor’s
recovery simply by asserting a counterclaim. That approach would
prejudice creditors, too, by preventing any eventual recovery on the
debtor’s claims from flowing to the bankruptcy estate. Cf. Martin-
Trigona v. Champion Fed. Sav. & Loan Ass’n, 892 F.2d 575, 577 (7th Cir.
1989) (Posner, J.) (“The fundamental purpose of bankruptcy, from the
creditors’ standpoint, is to prevent creditors from trying to steal a
march on each other . . . . There is, in contrast, no policy of preventing
persons whom the bankrupt has sued from protecting their legal
rights.”).
Reading Section 362(a)(1) to permit disaggregating cases into
discrete proceedings against the debtor (which must be stayed) and
those brought by the debtor (which need not) thus “best reflects the
statute’s text, structure, and legislative purpose.” Mar-Can Transp.,
167 F.4th at 593 (typeface altered). Application of the rule to this case
is straightforward: The district court’s preliminary injunction order
concerned only Cumulus’s original claims. Nielsen did not even file
its answer with counterclaims until after the notice of appeal had been
docketed. Section 362(a)(1) thus does not require that we stay this
appeal pending the conclusion of Cumulus’s bankruptcy
proceedings. And though we, like the district courts, retain
“discretionary power to stay proceeding[s] in the interest of justice
and in control of [our] dockets,” Teachers, 803 F.2d at 65, we discern
no reason to delay decision in this appeal, which has been briefed and
argued on an expedited schedule.4
4 Though we decline to exercise our discretion to stay this appeal, we
acknowledge that the district court’s contrary decision concerned different

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II. Cumulus’s Entitlement to a Preliminary Injunction
Nielsen’s principal argument on appeal is that Cumulus did
not satisfy the requirements for obtaining preliminary relief.
To obtain a preliminary injunction, plaintiffs must show
(1) a likelihood of success on the merits or sufficiently
serious questions going to the merits to make them a fair
ground for litigation and a balance of hardships tipping
decidedly in the plaintiffs’ favor, (2) that they are likely
to suffer irreparable injury in the absence of an
injunction, (3) that the balance of hardships tips in their
favor, and (4) that the public interest would not be
disserved by the issuance of a preliminary injunction.
Mendez v. Banks, 65 F.4th 56, 63–64 (2d Cir. 2023) (alterations accepted
and quotation marks omitted). “The standard for obtaining
preliminary injunctive relief is higher, however, where the movant
seeks to modify the status quo by virtue of a mandatory preliminary
injunction” or “where the injunction being sought will provide the
movant with substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the merits.” A.H.
ex rel. Hester v. French, 985 F.3d 165, 176 & n.39 (2d Cir. 2021)
(quotation marks omitted). The higher standard requires plaintiffs
“show a clear or substantial likelihood of success on the merits and
make a strong showing of irreparable harm.” Schneiderman, 787 F.3d
at 650 (quotation marks and citation omitted).
At the outset, we agree with Nielsen and the district court that
considerations, and that the district court is free to revisit that decision at
any time on remand.

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the higher standard for obtaining a mandatory preliminary injunction
applies in this case. See Cumulus, 2026 WL 63294, at *8. “Because the
proposed injunction’s effect on the status quo drives the standard, we
must ascertain the status quo—that is, the last actual, peaceable
uncontested status which preceded the pending controversy.” N. Am.
Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir.
2018) (quotation marks omitted). Here, Cumulus sought, at the end
of 2025, an order preliminarily enjoining Nielsen’s Network Policy,
which had been in effect since September 2024. Cumulus and Nielsen
spent months negotiating under the policy until, in August 2025,
Cumulus sent Nielsen a cease-and-desist letter alleging an antitrust
violation. In other words, the last “uncontested status preceding the
present controversy,” see Mastrio v. Sebelius, 768 F.3d 116, 121 (2d Cir.
2014), was the time the parties spent negotiating a new contract under
the Network Policy, rather than before September 2024. Moreover, if
Cumulus obtains interim relief but Nielsen ultimately prevails, it
would be difficult if not impossible to render a meaningful remedy to
Nielsen who would have had to negotiate its contract renewals this
year without the Network Policy. See Tom Doherty Assocs. v. Saban
Ent., Inc., 60 F.3d 27, 34–35 (2d Cir. 1995). Thus, in addition to being
a mandatory preliminary injunction, the remedy Cumulus sought
and obtained below may irreparably “alter th[e] relationship”
between the parties. See N. Am. Soccer League, 883 F.3d at 37–38.
Cumulus thus sought, and the district court issued, a
mandatory preliminary injunction that altered the status quo,
potentially irreparably. So, we review the district court’s decision to
ensure Cumulus demonstrated “a clear or substantial likelihood of

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success on the merits” as well as “a strong showing of irreparable
harm.” Schneiderman, 787 F.3d at 650 (quotation marks omitted).
A. Clear or Substantial Likelihood of Success on the Merits
The parties next dispute the district court’s application of
Section 2 liability for unlawful tying. The typical tying case involves
“an agreement by a party to sell one product but only on the condition
that the buyer also purchases a different (or tied) product, or at least
agrees that he will not purchase that product from any other
supplier.” Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451,
461 (1992) (quotation marks omitted). Motivating the prohibition is
“[t]he fear . . . that a monopolist in one product market will seek to
expand its monopoly by conditioning the purchase of the
monopolized product upon the purchase of a product in a separate
market,” thereby distorting competition in the tied market. Kaufman
v. Time Warner, 836 F.3d 137, 141 (2d Cir. 2016). Put another way, an
unlawful tying policy forces a buyer to purchase a tied product “that
the buyer either did not want at all, or might have preferred to
purchase elsewhere on different terms”—and, accordingly,
“competition on the merits in the market for the tied item is restrained
and the Sherman Act is violated.” Jefferson Par. Hosp. Dist. No. 2 v.
Hyde, 466 U.S. 2, 12 (1984), abrogated on other grounds, Ill. Tool Works
Inc. v. Indep. Ink, Inc., 547 U.S. 28 (2006).
This dispute began as a typical tying case. The district court
found that Nielsen’s Network Policy—which expressly prohibits
Cumulus from buying Nielsen’s useable Nationwide product without
also buying its local market data—constituted an unlawful
“agreement by a party to sell one product but only on the condition

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that the buyer also purchases a . . . tied[] product[.]” Eastman Kodak,
504 U.S. at 461; see also Cumulus, 2026 WL 63294, at *12. The district
court found that the “tying” product is national radio data (a market
in which Nielsen has 100% market share), while the “tied” product is
the data in certain local markets. Nielsen does not challenge the
district court’s conclusion as to the lawfulness of its Network Policy
on appeal.
After Cumulus sent Nielsen a cease-and-desist letter accusing
it of anticompetitive behavior, Nielsen exempted Cumulus from its
Network Policy and offered Cumulus a standalone price for its
Nationwide product. However, the district court reasoned that this
standalone offer still constituted a “constructive tie,” because “[t]he
price that Nielsen offered Cumulus for a standalone Nationwide—ten
times more than it currently pays—is so exorbitant as to make it
economically unfeasible to purchase Nationwide as a separate
product.” Cumulus, 2026 WL 63294, at *13. As explained below,
Nielsen takes issue with the district court’s understanding of this
“constructive” tie on both the law and the facts.
To state a prima facie tying claim, Cumulus must establish five
elements:
(i) the sale of one product (the tying product) is
conditioned on the purchase of a separate product (the
tied product); (ii) the seller uses actual coercion to force
buyers to purchase the tied product; (iii) the seller has
sufficient economic power in the tying product market to
coerce purchasers into buying the tied product; (iv) the
tie-in has anticompetitive effects in the tied market; and

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(v) a not insubstantial amount of interstate commerce is
involved in the tied market.
Kaufman, 836 F.3d at 141. Then, “if a plaintiff successfully establishes
a prima facie case[,] . . . the monopolist may proffer a ‘procompetitive
justification’ for its conduct.” United States v. Microsoft Corp., 253 F.3d
34, 59 (D.C. Cir. 2001) (citing Eastman Kodak, 504 U.S. at 483); see also
Schneiderman, 787 F.3d at 652. Once the defendant asserts a
“nonpretextual” procompetitive justification for a purported tie, the
burden shifts to the plaintiff either to rebut the justification or to
“demonstrate that the anticompetitive harm outweighs the
procompetitive benefit.” Schneiderman, 787 F.3d at 652 (citing
Microsoft Corp., 253 F.3d at 58–59).
The parties largely dispute elements (i) and (ii) of the prima facie
case5: Nielsen claims that it cannot have “conditioned” the sale of
Nationwide on its local data because “constructive” tying is not a
viable theory of Sherman Act liability, and even if it were, it did not
“coerce” Cumulus into purchasing its local data.
We are unpersuaded. Instead, we agree with the district court
that constructive tying is a valid theory of Sherman Act liability.
5 The district court explained that “[t]hree of the five prongs of the tying test
are unchallenged,” and that at issue was coercion and anticompetitive
effects in the tied market. Cumulus, 2026 WL 63294, at *12–13. On appeal,
Nielsen primarily challenges the viability of a constructive tying theory—
that is, whether there can be such a thing, and if so, whether the constructive
tie was coercive in this case—thus implicating the first two prongs as well.
As to the district court’s findings on anticompetitive effects, Nielsen asserts
that such analysis was beside the point because it was premised on an
express rather than constructive tie. See Appellant’s Br. at 27–28.

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Further, on these facts, we find that the district court did not abuse its
discretion by determining that Nielsen effectively coerced Cumulus
into purchasing its local data in certain markets that Cumulus did not
otherwise want. We also find that the district court did not abuse its
discretion in concluding that Nielsen’s conduct had anticompetitive
effects in the tied market or in rejecting Nielsen’s proffered
procompetitive justification.
1. The Availability of Constructive Tying
We consider first whether a “constructive” tying arrangement
can ever be unlawful under Section 2 of the Sherman Act. Nielsen
contends that the only actionable form of tying requires an express tie
between two products—that is, the seller’s explicit refusal to sell one
product (the tying product) without the other (the tied product). We
disagree. Case law and common sense indicate that unlawful tying
liability is not solely limited to express tying policies. Tying may also
occur when a seller de facto ties two products via exorbitantly high
prices, leaving the buyer with only one economically rational choice:
to purchase the products together.
Two cases lead us to that conclusion. We begin with the
Supreme Court’s decision in United States v. Loew’s, Inc., in which the
Court recognized the power of price to perpetuate an unlawful (yet
constructive) tying arrangement. 371 U.S. 38 (1962), abrogated on other
grounds, Ill. Tool Works, 547 U.S. 28. In Loew’s, the United States sued
several major film distributors for their “block booking” policies,
which prohibited TV stations from licensing their films individually.
Id. at 39–40. The government claimed that block booking constituted
an unlawful tying arrangement; in effect, if a TV station sought to

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license one popular movie, the block booking policy forced it to
purchase the licenses for dozens of unpopular films as well. Id. at 40.
The Supreme Court ultimately held that block booking violated the
Sherman Act. Id. at 49–50. But before the Court issued its decision,
the distributors allegedly rescinded their block booking policies and
began to offer their films at individual prices. Id. at 50–51. In light of
that change, the distributors urged the Court to vacate the district
court’s injunction. Instead, recognizing the risk of a constructive tie
even absent a formal block booking policy, the Supreme Court
affirmed an injunction that barred the distributors from charging “a
price differential between a film offered individually and as part of a
package which ‘has the effect of conditioning the sale or license of such
film upon the sale or license of one or more other films,’” see id. at 54
(emphasis added), and modified the injunction to specifically prohibit
“noncost-justified” price differentials, id. at 52–54. The Supreme
Court in Loew’s thus identified—and foreclosed—the distributors’
obvious workaround to an anti-block booking injunction: selling their
most popular movie individually for an exorbitant price and their
bundles for the same prices, which would replicate the harms of the
express tying arrangement. In short, the Supreme Court rejected the
distributors’ attempts to avoid liability by facially discarding their
express tying policy but continuing to de facto enforce it via high price
differentials. That is precisely the theory of constructive tying that the
district court employed here.
We, too, have recognized the availability of constructive tying
liability under the Sherman Act. In American Manufacturers Mutual
Insurance Company v. American Broadcasting-Paramount Theatres, Inc.

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(American Manufacturers I), we considered a dispute between the TV
network ABC and plaintiffs who sought to purchase advertising time
on some of its local stations. 388 F.2d 272, 274–76 (2d Cir. 1967). The
plaintiffs alleged that ABC required sponsors to purchase
advertisements on all local stations during a given time slot in order
to advertise on any local stations—what the plaintiffs called an
unlawful tying arrangement. Id. When the plaintiffs sought to
purchase advertising time on only some local ABC stations, they
claimed that the network would only sell those individual stations at
“an unreasonable cost[.]” Id. at 276. The district court granted ABC’s
motion for summary judgment, id. at 278, but we reversed, “find[ing]
it impossible on the record before us to determine whether ABC was
justified in reverting to its higher . . . prices” for the individual
stations, id. at 283. Instead, “where there is no quality or
distinguishing desideratum between a product offered singly or in a
package,” we said that “the seller cannot charge substantially higher
for the individual product if the price differential has the effect of
conditioning the sale of the single product to the sale of the entire
package and if the difference in price cannot be legitimately justified
by cost considerations.” Id. (citing Loew’s, 371 U.S. at 43). That
statement in American Manufacturers I squarely recognizes that price
differentials can, in some instances, create an unlawful constructive
tie.
Nielsen resists this conclusion by claiming that we later
abandoned that determinative holding in American Manufacturers
Mutual Insurance Company v. American Broadcasting-Paramount
Theatres, Inc. (American Manufacturers II), 446 F.2d 1131 (2d Cir. 1971).

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But Nielsen’s reliance is misplaced. The second American
Manufacturers appeal reached us after “a three-day trial” on the
question of whether ABC had in fact coerced the plaintiff into
purchasing bundled local stations. Id. at 1133. The district court
answered in the negative and we affirmed, holding that, on those
facts, plaintiff had not proven that it “fe[lt] any economic pressure
from ABC” to purchase the bundled stations and thus was not
coerced. Id. at 1137. But nothing in American Manufacturers II suggests
that we revisited our earlier holding about the general availability of
constructive tying liability. If anything, the pair of appeals follows a
standard arc: We recognized the viability of a constructive tying claim
in American Manufacturers I, but after trial, we held that the plaintiff
did not in fact establish such a claim in American Manufacturers II. The
latter holding is entirely consistent with the former.
In light of the Supreme Court’s decision in Loew’s and our own
in American Manufacturers I, we conclude that constructive tying is an
available theory of antitrust liability. That conclusion makes good
sense: “[T]he essential characteristic of an invalid tying arrangement
lies in the seller’s exploitation of its control over the tying product to
force the buyer into the purchase of a tied product that the buyer
either did not want at all, or might have preferred to purchase
elsewhere on different terms.” Jefferson Par., 466 U.S. at 12. That
“essential characteristic” of tying—the compulsion to purchase an
unwanted product—can occur via an express tie, like block booking.
Id.; see also Loew’s, 371 U.S. at 48–49. But it can also occur via a
constructive tie, such as non-cost justified, steep price differentials
between an individual product and the tied bundle that have “the

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effect of” coercing the buyer into accepting the bundle. American
Manufacturers I, 388 F.2d at 283. Both types of tying arrangements can
produce the same effect. See Jefferson Par., 466 U.S. at 14 (“When
‘forcing’ occurs, our cases have found the tying arrangement to be
unlawful.”).
Constructive tying is a viable theory of Sherman Act liability.
The remaining question is whether the district court abused its
discretion by finding on this preliminary posture that Cumulus is
clearly or substantially likely to succeed on its constructive tying
claim.
2. Nielsen’s Constructive Tie
The district court determined that Nielsen’s single standalone
offer for Nationwide “was priced so exorbitantly that this offer was
the effective equivalent” of its formally tied offers and thus
constituted a constructive tie. Cumulus, 2026 WL 63294, at *6, *13. Put
another way, the district court found that Nielsen had continued to de
facto enforce its unlawful Network Policy by offering to sell
Nationwide only at an unreasonable cost. Nielsen argues that its
standalone price for Nationwide was merely its opening offer for the
product, which it says categorically cannot produce tying liability
because opening offers never “actual[ly] coerc[e]” a buyer into
purchasing the tied product. Kaufman, 836 F.3d at 141. But the district
court determined on this preliminary record that Nielsen’s steep price
for Nationwide alone was not merely an opening offer, but instead an
ongoing enforcement of its Network Policy that left Cumulus with no
other rational choice but to purchase Nielsen’s “tie[d]” local markets
data as well. See Cumulus, 2026 WL 63294, at *13.

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We agree. Reviewing the district court’s factfinding for clear
error and its conclusions of law de novo, see Zervos, 252 F.3d at 169, we
conclude that Nielsen’s non-cost justified and “exorbitant”
standalone offer for Nationwide within the context of negotiations
here rises to the level of coercion by effectively forcing Cumulus to
purchase unwanted local markets data from Nielsen. Cumulus, 2026
WL 63294, at *13. The preliminary record suggests that Nielsen’s
“exemption” of Cumulus from its unlawful Network Policy was no
exemption at all.
Determining the existence of coercion is a fact-bound inquiry.
On the one hand, a seller’s “use of strong persuasion, encouragement,
or cajolery to the point of obnoxiousness to induce [the purchaser] to
buy its full line of products does not . . . amount to actual coercion.”
Unijax, Inc. v. Champion Int’l, Inc., 683 F.2d 678, 685 (2d Cir. 1982)
(quotation marks omitted). On the other, if the seller “goes beyond
persuasion and conditions [the] purchase of one product on the
purchase of another,” we will say that the buyer has shown “[a]ctual
coercion supporting a finding of a tying violation.” Id. Though the
line between the two is not always clear, the district court’s decision
as to actual coercion is supported by the preliminary record here.
We begin with a brief survey of the relevant facts as found by
the district court, nearly all of which are unchallenged on appeal and
to which we defer unless clearly erroneous. See D.L. Cromwell Invs.,
279 F.3d at 158. First, the parties agree that the relevant geographic
markets are “the United States” (for national data) and “each local
geographic area for which a ratings report is generated” (for local

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data).6 Cumulus, 2026 WL 63294, at *11. Nielsen enjoys 100% market
share in the market for national radio data, but in certain local
markets, it competes with Eastlan. See id. at *5, *8. Neither party
disputes that Cumulus sought to purchase local markets data from
Nielsen in only a subset of the 80 markets that Cumulus operates in;
Cumulus intended to purchase data in at least some of those
remaining local markets from Eastlan. Therefore, the allegedly “tied”
products are Nielsen’s data in the unwanted local markets.
Turn now to the parties’ negotiations. At the outset of the talks,
Cumulus informed Nielsen that it was interested in purchasing
Nielsen’s Nationwide data along with its data in only a subset of those
local markets. See Cumulus, 2026 WL 63294, at *5. Nielsen replied that
its Network Policy barred Cumulus from purchasing anything less
than full Nationwide and all relevant local markets, id. at *5–6, and it
offered Cumulus that package at (the June offer).
Because Nielsen does not challenge the district court’s finding that the
Network Policy is an unlawful (and express) tying arrangement, id. at
*12, that June offer enforcing the policy was also unlawful. Nielsen
6 “For antitrust purposes, the concept of a market has two components: a
product market and a geographic market.” Concord Assocs., L.P. v. Ent.
Props. Tr., 817 F.3d 46, 52 (2d Cir. 2016). The product markets in this case
are for “local radio ratings data” and “national radio ratings data.”
Cumulus, 2026 WL 63294, at *10. At times, the district court uses the
shorthand “the local market” to describe the separate geographic markets
here—i.e., “each local geographic area for which a ratings report is
generated,” id. at *11—but it is clear from its analysis that it ultimately
concluded each individual local market in which Cumulus did not seek to
purchase Nielsen’s data had been effectively “tied” by Nielsen’s Network
Policy.

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then proceeded to make more offers enforcing the Policy by either
continuing to include all relevant local markets—with the unwanted
markets—or offering only the unusable “Swiss cheese” version of
Nationwide along with the desired local markets. Months later, and
under threat of litigation, Nielsen exempted Cumulus from its
Network Policy and offered its standalone Nationwide product at a
price of , the relevant offer for our purposes. But the
district court credited Cumulus’s expert’s assertion that the
standalone offer was the “effective equivalent” of the unlawful June
offer, concluding that the standalone offer “was priced so
exorbitantly” that it would be economically irrational for Cumulus to
also purchase its desired local data from Eastlan in the relevant local
markets. Id. at *6, *13.
Those undisputed facts support the district court’s legal
conclusion that Nielsen’s standalone offer was coercive even in the
absence of a formal tie. Here, the district court found that the best
price Cumulus could get for Eastlan’s data in the desired local
markets was . Id. But if Cumulus purchased Nielsen’s
Nationwide data for and Eastlan’s local data for
, it would pay a total of for both
products—$1.2 million more than Nielsen’s unlawfully tied June
offer. Thus, Nielsen’s standalone offer gave Cumulus only an illusory
choice: accept Nielsen’s tied June offer, or pay $1.2 million more to
purchase the desired local data from a competitor. As the district
court found, that is no choice at all. Instead, given the course of
dealing here, it found that Nielsen went “beyond persuasion” and
actually conditioned the purchase of Nationwide on the purchase of

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the local markets data, Unijax, 683 F.2d at 685, which coerced
Cumulus into purchasing data in local markets that it “either did not
want at all” or “preferred to purchase elsewhere on different terms,”
Jefferson Par., 466 U.S. at 12. That coercion “impair[ed] competition on
the merits” in the relevant local data markets by “harm[ing] existing
competitors” (like Eastlan) and “creat[ing] barriers to entry of new
competitors”—both results that “a free market would not tolerate.”
Id. at 14–15 (quotation marks omitted).
As for whether Nielsen’s standalone Nationwide offer was
justified by the cost of producing that product, the district court noted
that “Nielsen has made no effort to quantify these costs or correlate
them with its price for standalone Nationwide.” Cumulus, 2026 WL
63294, at *15. But the district court did find that the Nationwide-only
offer “was exponentially more than what any other network pays for
Nationwide as a standalone product”—indeed, the offer to Cumulus
was 150% higher than the highest price Nielsen had ever previously
charged for the product. Id. at *6. Moreover, the standalone offer for
Nationwide was “ten times more than what Cumulus was paying for
Nationwide under its existing contract.” Id. Though Nielsen may
later “quantify [its] costs or correlate them with its price for
standalone Nationwide,” id. at *15, the record as it stands supports
the conclusion that “the difference in price cannot be legitimately
justified by cost considerations,” American Manufacturers I, 388 F.2d at
283.
On this preliminary posture, given the evidence that Nielsen
exploited its economic power in the national data market to force
Cumulus into the purchase of tied products—Nielsen’s data in

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several local markets—that it did not otherwise want, the district
court did not abuse its discretion by finding that Cumulus was clearly
or substantially likely to succeed on its tying claim. We recognize, of
course, that “antitrust law does not prohibit lawfully obtained
monopolies from charging monopoly prices.” Pac. Bell Tel. Co. v.
LinkLine Commc’ns, Inc., 555 U.S. 438, 454 (2009). But the difference
here is that the district court found that Nielsen’s conduct—namely,
the non-cost justified offer for Nationwide—gave Cumulus no
rational choice but to accept its unlawfully tied June offer. That
conduct coerced the purchase of the tied local data products and
restricted competition in those markets. See Verizon Commc’ns. Inc. v.
L. Offs. of Curtis V. Trinko, LLP, 540 U.S. 398, 407 (2004) (“[T]he
possession of monopoly power will not be found unlawful unless it
is accompanied by an element of anticompetitive conduct.”). And it is
precisely the type of “economic pressure” we have said is the
hallmark of tying liability. American Manufacturers II, 446 F.2d at 1137.
Nielsen does not meaningfully dispute the above facts, but
instead argues that its standalone Nationwide offer was merely its
opening salvo in the negotiations, to which Cumulus was required to
respond before filing suit. Indeed, on Nielsen’s telling, an opening
offer can never establish antitrust liability. While we agree that a
party’s “preliminary bargaining position” will typically not establish
tying liability, because a true opening offer will rarely be coercive, see
id., we disagree that Nielsen’s standalone offer here—its fourth offer
of eight—falls into that category. Instead, on these facts, we think the
district court did not err by concluding that coercion occurred.
Nielsen’s “opening offer” argument is not a freestanding

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element of, or defense to, tying liability. Instead, in American
Manufacturers II, we described the parties’ negotiation history as part
of the broader question as to whether the buyer has been coerced. See
id. at 1136–37. There, we held that the plaintiff had failed to
demonstrate coercion because it “did not persevere long enough” in
negotiations for individual TV stations “to feel any economic pressure
from ABC[.]” Id. at 1137. Nielsen relies heavily on American
Manufacturers II to argue that Cumulus, too, did not “feel any
economic pressure” from Nielsen’s standalone Nationwide offer. Id.
But we think American Manufacturers II is factually distinguishable. In
that case, the plaintiff “never sought or received a reasonably firm
ABC offer” for individually-priced stations. Id. Indeed, the plaintiff
negotiated with ABC for months without ever indicating that it might
want less than the full slate of stations, id. at 1133–34, and when it
finally made an offer for individual stations, the price of its offer “did
not differ significantly from the price offered by ABC,” a fact that that
we called “significant,” id. at 1135. Then, after ABC’s “initial negative
response” to the plaintiff’s individually-priced offer, the plaintiff
“abandoned [the] issue . . . without any coercion by ABC” and
focused on negotiating other contractual terms. Id. at 1135–36. Only
after the plaintiff eventually purchased the bundled stations did it
later assert that it had been coerced into such a purchase. Id. at 1136–
37. On those facts, we found that the plaintiff had not demonstrated
that ABC’s refusal to individually price “ever crystallized into any
identifiable or reasonably definitive policy,” and thus the plaintiff
had not demonstrated “actual exertion of economic muscle” that
“influence[d] the buyer’s choice.” Id. at 1135, 1137. After all, although

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“the law does not demand that [plaintiffs] joust with windmills,”
American Manufacturers I, 388 F.2d at 285, the plaintiff in American
Manufacturers did not press its negotiating position enough to
“discover[] whether it faced a windmill or a bona fide giant,”
American Manufacturers II, 446 F.2d at 1137.
The current record in this case tells a very different story. At
the outset of contract negotiations, Cumulus informed Nielsen that it
was no longer interested in purchasing certain local data from
Nielsen. See Cumulus, 2026 WL 63294, at *5. When Nielsen repeatedly
declined to craft an offer exempting those unwanted local markets,
Cumulus asked Nielsen for Nationwide pricing alone, which Nielsen
refused to provide given its Network Policy. See id. at *5–6. Later,
Cumulus counteroffered Nielsen for only its desired local markets, an
offer that Nielsen rejected. Id. Even after all the above negotiating—
in which Cumulus made unmistakably clear its desire to purchase
local data in only a subset of markets—Nielsen twice restated offers to
sell Cumulus its local radio ratings data in all 80 markets, including
the unwanted ones, and explicitly pointed to its Network Policy in
doing so. Unlike the plaintiff in American Manufacturers II, the
negotiation history between the parties here suggests that Cumulus
repeatedly pressed its desire to purchase Nationwide with only a
subset of the local data markets, and Nielsen steadfastly refused to
make such an offer. In that context, Nielsen’s eventual exorbitant
offer for standalone Nationwide was not a “bartering ploy[],” but a
continuation of the same coercion. See American Manufacturers II, 446
F.2d at 1137. Our holding in American Manufacturers II reflects the
straightforward conclusion that plaintiffs cannot be coerced by a

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contract term that they did not seriously dispute; here, the record
reflects that the unwanted local data markets were the central
disputed term from the outset.
In sum, our case law illustrates that a seller’s high price can, in
certain circumstances, constitute unlawful coercion that effectively
“conditions [the buyer’s] purchase of one product on the purchase of
another.” Unijax, 683 F.2d at 685. In other circumstances, of course,
such an offer will merely constitute “strong persuasion[.]” Id.
(quotation marks omitted). But this is not one of those circumstances.
To the contrary, the facts support the conclusion that Nielsen
“actual[ly] exert[ed] [its] economic muscle” to coerce Cumulus into
purchasing unwanted local data in several markets. American
Manufacturers II, 446 F.2d at 1137. We therefore hold that, on this
preliminary record, the district court did not abuse its discretion by
concluding that Cumulus was likely to succeed in proving that
Nielsen’s standalone offer constituted an unlawful tie.
3. Alleged Anticompetitive Effects
Next, Nielsen argues that the district court erred in concluding
that its proscribed conduct has anticompetitive effects in the local
ratings data markets.7 Reviewing the district court’s preliminary
7 The district court held that, because Nielsen is an undisputed monopolist
in the market for nationwide ratings data, its constructive tie is illegal per se
without a showing of anticompetitive effect. See Cumulus, 2026 WL 63294,
at *13 (citing Jefferson Par., 466 U.S. at 17). Because we find no error in the
district court’s alternative holding—that Nielsen’s Network Policy and
standalone Nationwide offer had anticompetitive effects in the local ratings
data markets, see id. at *13–14—we need not and do not reach the question
whether tying can constitute a per se violation of Section 2.

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factual findings for clear error, we disagree.
Prevailing on a tying claim requires proof of “anticompetitive
effects in the tied market.” E & L Consulting, Ltd. v. Doman Indus. Ltd.,
472 F.3d 23, 31 (2d Cir. 2006) (quotation marks omitted). The
requirement is satisfied if a plaintiff proves “that the tie impairs
competition in the tied market and forecloses a substantial volume of
commerce in that market.” Gonzalez v. St. Margaret’s House Hous. Dev.
Fund Corp., 880 F.2d 1514, 1517 (2d Cir. 1989). In other words, illegal
tying arrangements are those that “restrain competition on the merits
by forcing purchases that would not otherwise be made.” Jefferson
Par., 466 U.S. at 27. In conducting this inquiry, we “must focus on the
market or markets in which the two products are sold, for that is
where the anticompetitive forcing has its impact.” Id. at 18.
On this score, the district court found that “[t]he record
evidence overwhelmingly indicates that the Network Policy poses a
significant barrier to entry, preventing Eastlan from achieving any
measure of scale or industry-wide acceptance.” Cumulus, 2026 WL
63294, at *13. Because the Network Policy applies to “the largest
national broadcasters,” id., Eastlan is deprived of the customers most
likely to purchase its products in the local ratings data markets. And
though Eastlan can theoretically target smaller broadcasters in local
markets that are not subject to the Network Policy, “the record
indicates that many such stations would not earn enough in
advertising revenue to make purchase of Eastlan’s product feasible.”
Id. at *14. To illustrate the Network Policy’s anticompetitive effects,
the district court relied in part on evidence from the New Orleans
market, where one smaller broadcaster not subject to the Network

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Policy “earned less in annual revenue in 2024 than the cost of
Eastlan’s local ratings data.” Id. On those findings, the district court
concluded that Nielsen’s Network Policy “has an adverse effect on
the competitive process in the market for local radio ratings data.” Id.
On appeal, Nielsen presses two objections.
First, Nielsen argues that the district court improperly focused
on the Network Policy, which it claims to have exempted Cumulus
from, and that “[t]he district court never found that Nielsen’s
standalone Nationwide offer . . . had anticompetitive effects.”
Appellant’s Reply Br. at 13. But the district court’s analysis, albeit
preliminary, was more comprehensive. It explained that “[t]he fact
that Nielsen, after being accused by Cumulus of violating the antitrust
laws, finally offered to sell Nationwide to Westwood One as a
standalone product does not negate the anticompetitive effects of its
Network Policy.” Cumulus, 2026 WL 63294, at *13 (citations omitted).
That the standalone price was “so exorbitant as to make it
economically unfeasible to purchase Nationwide as a separate
product,” id., meant that the standalone offer was part of Nielsen’s
continued coercing of Cumulus into accepting Nielsen’s combined
offer. In other words, Nielsen’s conduct amounted to continued
enforcement of its Network Policy, and it follows that such conduct
had the same anticompetitive effect on Cumulus’s ability to purchase
from Eastlan in the local ratings data markets. Nielsen neither
challenges that factual finding on appeal nor explains why its pricing
structure would cause different competitive effects than those the
district court found for the Network Policy.
Second, Nielsen argues that even if the district court was right

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to focus on the Network Policy in looking for anticompetitive effects,
it erred in considering evidence from only one local market—New
Orleans—in doing so. The record says otherwise. Before referring to
the New Orleans market as an “example” of anticompetitive effects,
see Cumulus, 2026 WL 63294, at *14, the district court cited evidence
about the “many markets in America” where large broadcasters
subject to the Network Policy were effectively forced to purchase
Nielsen’s local ratings data, cutting out Eastlan, id. at *13 (quotation
marks omitted). The dynamic has “ma[de] it difficult [for Eastlan] to
grow in local markets” or to target them, the district court found,
“preventing Eastlan from achieving any measure of scale or industry-
wide acceptance.” Id. That the district court then further explained
its findings with reference to a particular market hardly qualifies as
clear error.
Thus, the district court did not abuse its discretion in
concluding that Cumulus made a substantial showing of a prima facie
tying claim in violation of Section 2.
4. Nielsen’s Procompetitive Justification
Because we find no reversible error in the district court’s
preliminary analysis of Cumulus’s prima facie claim, we turn to
Nielsen’s argument that it adequately “proffer[ed] nonpretextual
procompetitive justifications for its conduct.” Schneiderman, 787 F.3d
at 652 (quotation marks omitted). When a “monopolist asserts a
procompetitive justification—a nonpretextual claim that its conduct
is indeed a form of competition on the merits because it involves, for
example, greater efficiency or enhanced consumer appeal—then the
burden shifts back to the plaintiff to rebut that claim.” Microsoft, 253

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F.3d at 59. If a defendant’s procompetitive justifications are found to
be pretextual, however, “we need not weigh them against the
anticompetitive harms” of the defendant’s conduct. Schneiderman,
787 F.3d at 658.
The district court rejected Nielsen’s purported procompetitive
justifications—preventing unlicensed sharing of national ratings
data, generating efficiency for consumers in the form of a bundled
deal, and recouping the primarily local-driven costs of producing
Nationwide—on two grounds. First, it held that all three
justifications were insufficiently supported by the record, and thus
outweighed by the anticompetitive harms generated by the Network
Policy. See Cumulus, 2026 WL 63294, at *14–15. Second, the district
court held that the justifications were pretextual in light of Nielsen’s
motive to exclude competition. See id. On appeal, Nielsen retains
only its third, cost-recoupment justification, arguing that it was
legitimately motivated to recoup its costs and that the record does not
support finding pretext. We disagree.
First, the district court did not clearly err in concluding that
Nielsen did not sufficiently quantify its cost-recoupment justification.
Instead, it concluded based on the preliminary record before it that
Nielsen “made no effort to quantify these costs or correlate them with
its price for standalone Nationwide.” Id. at *15. In this deferential
posture, “[t]he weight of the evidence is not a ground for reversal on
appeal, and the fact that there may have been evidence to support an
inference contrary to that drawn by the trial court does not mean that
the findings are clearly erroneous.” Ceraso v. Motiva Enters., LLC, 326
F.3d 303, 316 (2d Cir. 2003) (citation omitted). Nor has Nielsen

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mustered any record evidence to support its contention on appeal.
Instead, it merely quotes the district court’s acknowledgments that its
“data-collection costs are sizable” and thus “aligning pricing with
costs was a legitimate concern.” Appellant’s Br. at 28 (quotation
marks omitted). At this stage of the proceedings, that absence of
evidence well supports the district court’s conclusion. See
Schneiderman, 787 F.3d at 659; see also LePage’s Inc. v. 3M, 324 F.3d 141,
164 (3d Cir. 2003) (en banc) (“3M cites to no testimony or evidence in
the 55 volume appendix that would support any actual economic
efficiencies in having single invoices and/or single shipments.”). The
district court thus did not err in holding that the “unquantified and
hypothetical” procompetitive justifications proffered by Nielsen were
outweighed by the “imminent and substantial” anticompetitive
harms. Cumulus, 2026 WL 63294, at *15.
Second, and in any event, the district court did not clearly err
in finding that Nielsen intended to exclude competition in the local
ratings data markets, and thus that its purported procompetitive
justifications were pretextual. See Cumulus, 2026 WL 63294, at *15. On
this score, the district court cited an email from Rich Tunkel,
Managing Director of Nielsen Audio, claiming that the Network
Policy was intended to “command subscriptions in local markets”
and “bring groups with non-subscribing markets back to the
negotiation table.” Id. (quotation marks omitted); see also Appellee’s
Suppl. Sealed App’x 440. The district court also cited other record
evidence containing similar statements from Tunkel, including that
the Network Policy would “help reinforce the value of Nielsen local
market measurement and secure local subscription.” Cumulus, 2026

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WL 63294, at *15 (quotation marks omitted). From these statements,
the district court did not clearly err in concluding that Nielsen
intended to “put up barriers or obstacles to . . . competition” in the
local ratings data markets. See Schneiderman, 787 F.3d at 658
(quotation marks omitted).
We are likewise unpersuaded by Nielsen’s final argument that,
at most, the record shows “mixed motives,” which it claims are
insufficient to establish pretext. Appellant’s Br. at 29. True, the
district court acknowledged that some record evidence supported
Nielsen’s intention to recoup costs as well as “prevent networks from
getting data through the back door.” Cumulus, 2026 WL 63294, at *15
(quotation marks omitted). But “[t]he fact that [Nielsen] acted to
benefit its own economic interests is hardly a reason to overturn
the . . . finding that it violated § 2 of the Sherman Act” precisely
because “[i]t can be assumed that a monopolist seeks to further its
economic interests and does so when it engages in exclusionary
conduct.” LePage’s, 324 F.3d at 164. Though Nielsen may have had
some economic interest in the Network Policy and pricing for
standalone Nationwide separate from excluding competition, the
district court crediting such evidence does not undermine its findings
of pretext, let alone preclude such findings. Indeed, Nielsen musters
no argument that its conduct in any way enhanced competition or
efficiency in the local ratings data markets. See Microsoft, 253 F.3d at
59 (noting “greater efficiency or enhanced consumer appeal” as
examples of acceptable, nonpretextual procompetitive justifications).
Nor do Nielsen’s cases advance its mixed-motive argument.
Watson Laboratories, for example, concerned the pleading standard for

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a plaintiff to allege an “unjustified” reverse payment in violation of
the antitrust laws, not the degree of anticompetitive intent sufficient
to establish that a proffered procompetitive justification is pretextual.
See Watson Lab’ys, Inc. v. Forest Lab’ys Inc., 101 F.4th 223, 239 & n.7 (2d
Cir. 2024); see also AD/SAT v. AP, 181 F.3d 216, 231 (2d Cir. 1999)
(describing insufficient allegations for a monopoly leveraging
claim—without having alleged tying—as “normal business
development” (quotation marks omitted)). And Ostrowski,
concerning the standard for retaliation in an employment
discrimination case, is even further afield. See Ostrowski v. Atl. Mut.
Ins. Cos., 968 F.2d 171, 185 (2d Cir. 1992). Though we do not hold that
the coexistence of procompetitive and anticompetitive motives are
always insufficient to shift the burden back to the plaintiff in a Section
2 case, see Microsoft, 253 F.3d at 59, here the district court’s reliance on
Nielsen’s repeated statements about excluding competition in the
local ratings data markets well support the pretext finding.
Thus, we hold that the district court did not abuse its discretion
in concluding that Cumulus made a substantial showing it was likely
to succeed on the merits of its Section 2 tying claim.
B. Strong Showing of Irreparable Harm
Past likelihood of success, Nielsen argues Cumulus failed to
make a strong showing of irreparable harm, and that at most
Cumulus is likely to suffer “financial” injuries. Appellant’s Br. at 29
(quotation marks omitted and alteration accepted). Though we do
not agree with all of the district court’s reasoning on this score, we
conclude that Cumulus made such a showing.
A showing of irreparable harm is “the single most important

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prerequisite for the issuance of a preliminary injunction,” and for the
issuance of a mandatory preliminary injunction, the showing must be
“strong.” Daileader v. Certain Underwriters at Lloyds Lond. Syndicate
1861, 96 F.4th 351, 358 (2d Cir. 2024) (quotation marks omitted). “To
establish irreparable harm, a party . . . must show that there is a
continuing harm which cannot be adequately redressed by final relief
on the merits and for which money damages cannot provide adequate
compensation.” Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.
2002) (quotation marks omitted). But though we often say in
shorthand that “financial loss” does not constitute irreparable harm,
see, e.g., Borey v. Nat’l Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 34
(2d Cir. 1991), “a perhaps more accurate description of the
circumstances that constitute irreparable harm is that where, but for
the grant of equitable relief, there is a substantial chance that upon
final resolution of the action the parties cannot be returned to the
positions they previously occupied,” Brenntag Int’l Chems., Inc. v. Bank
of India, 175 F.3d 245, 249 (2d Cir. 1999). It is against this backdrop
that Nielsen’s financial-injury-only argument comes apart.
The district court found credible Cumulus’s representations
that it would suffer “immediate consequences” were it to lose access
to current national ratings data, including an inability to “develop
credible advertising proposals” causing “long-standing” customers
to “shift some or all of their advertising inventory purchases to
competitors.” Cumulus, 2026 WL 63294, at *16. This, the district court
determined, would “result[] in an immediate decrease in Westwood
One’s market share.” Id. In the district court’s view, these types of
harms can be irreparable for purposes of obtaining a preliminary

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injunction. Id. at *15 (quotation marks omitted). Nielsen disagrees,
arguing that all of these harms “still trace back to a compensable
overcharge that damages can address,” and that any risks of major
disruption, loss of goodwill, or loss of market share are “merely
speculative.” Appellant’s Br. 30–31 (quotation marks omitted). We
find Nielsen’s arguments unavailing.
First, as a factual matter, we find no clear error in the district
court crediting Cumulus’s expectations of imminent loss of
customers, good will, and market share. In particular, the district
court credited Jones’s declaration that switching some local ratings
data purchases from Nielsen to Eastlan would be “crucial for
maintaining sufficient cash for continued operations.” Appellee’s
Suppl. Sealed App’x 201. If Cumulus lost access to affordable, up-to-
date ratings data, it would face both imminent risks from its creditors
and an inability to retain longtime customers in a highly competitive
advertising market with thin margins. See id. at 202–04. Nielsen’s
complaints that this evidence came “on the eve of an evidentiary
hearing” from “the self-serving statements of an executive
responsible for negotiating pricing with Nielsen,” Appellant’s Br. at
31, go to weight, rather than clear error.
Second, on de novo review, we affirm the district court’s legal
conclusions that “loss of good will[,] customers, . . . [and] current or
future market share suffices to show irreparable harm.” Cumulus,
2026 WL 63294, at *15 (quotation marks omitted). Though Nielsen
protests that these types of injuries flow from financial loss, financial
losses can be irreparable if “there is a substantial chance that upon
final resolution of the action the parties cannot be returned to the

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positions they previously occupied.” Brenntag Int’l Chems., 175 F.3d
at 249. Thus, we have held that loss of good will, loss of longtime
customers, and a substantial loss in market share—although
theoretically merely financial—can constitute irreparable harms. See,
e.g., Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907–08 (2d Cir.
1990) (loss of good will and loss of customers); Grand River Enter. Six
Nations, Ltd. v. Pryor, 481 F.3d 60, 67 (2d Cir. 2007) (loss of meaningful
market share).
Nielsen’s remaining arguments are equally meritless. Even
though Cumulus may not have collapsed in the time since filing suit,
the district court did not err in crediting evidence showing that
Cumulus’s business would face irreparable losses without interim
relief. See Cumulus, 2026 WL 63294, at *15–16. And though Nielsen
argues in reply that Cumulus’s subsequent bankruptcy renders the
preliminary injunction either insufficient or unnecessary, “the
[d]istrict [c]ourt should determine in the first instance the effect of this
supervening event upon the appropriateness of injunctive relief.”
McLeod v. Gen. Elec. Co., 385 U.S. 533, 535 (1967).8 Nielsen is free to
move to modify or vacate the preliminary injunction in the district
court on the basis of Cumulus’s intervening bankruptcy.
8 To be clear, the district court’s findings of irreparable harm remain
relevant to our analysis, Cumulus’s bankruptcy filing notwithstanding.
While bankruptcy is one basis for finding irreparable harm, see Tucker
Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989), it does
not necessarily negate or subsume the other bases asserted here. For
example, customer good will continues to exist—and can be a relevant
consideration—during bankruptcy proceedings themselves. Cf. In re
Windstream Holdings, Inc., 105 F.4th 488, 497 (2d Cir. 2024).

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Finally, though we affirm the district court’s finding of a strong
likelihood of irreparable harm in the form of loss of customers, good
will, and market share, we conclude that it erred in finding two other
forms of irreparable harm. First, we do not agree with the district
court that mere “[t]hreatened economic harm to consumers is plainly
sufficient to authorize injunctive relief”—a conclusion the district
court drew from an antitrust enforcement action maintained by state
officials. Cumulus, 2026 WL 63294, at *15 (alteration adopted)
(quoting Schneiderman, 787 F.3d at 661). In that context, consumer
economic harm may well be irreparable because non-party
consumers cannot recover damages, see, e.g., California v. Am. Stores
Co., 495 U.S. 271, 295–96 (1990), but the same is not necessarily true in
cases between private parties. Second, we disagree with the district
court that “a reduction in competition due to an antitrust injury also
constitutes irreparable harm”—a conclusion drawn from cases about
the public interest in antitrust enforcement more generally. Cumulus,
2026 WL 63294, at *16 (citing Consol. Gold Fields PLC v. Minorco, S.A.,
871 F.2d 252, 257–58 (2d Cir. 1989), and F. & M. Schaefer Corp. v. C.
Schmidt & Sons, Inc., 597 F.2d 814, 819 (2d Cir. 1979)). As the Supreme
Court has held more recently, a “private litigant . . . must have
standing—in the words of § 16, he must prove ‘threatened loss or
damage’ to his own interests in order to obtain relief.” Am. Stores, 495
U.S. at 296 (emphasis added). These errors notwithstanding,
however, the district court did not ultimately err in concluding that
Cumulus made a strong showing of irreparable harm in the form of
lost consumers, decreased good will, and diminished market share.
C. Balance of the Equities and the Public Interest

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Nielsen’s next set of arguments concerns the remaining
requirements for preliminary injunctive relief—“that the balance of
equities tips in [the movant’s] favor, and that an injunction is in the
public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). Nielsen argues that it will be irreparably harmed by
enforcement of the preliminary injunction because it will be forced to
negotiate, with Cumulus and others, “at a competitive disadvantage.”
Appellant’s Br. at 35 (quotation marks omitted). Nielsen claims, also,
that it will be unable to recoup the costs it incurs producing its local
ratings data, and that the “breadth and vagueness” of the preliminary
injunction risks “overcompliance.” Id. at 37 (quotation marks
omitted). And Nielsen contends that the public interest will be served
by vacating the preliminary injunction because, under the district
court’s order, “Nielsen cannot offer better terms to others without
risking contempt, even if those customers stand in very different
situations than Cumulus.” Id. at 39. We are unpersuaded.
First, in balancing the potential harms faced by both parties, the
district court concluded that Nielsen’s fears about losing negotiating
leverage and cost recoupment “are purely speculative,” compared to
the “short term” inability for Cumulus to “absorb the costs of
Nielsen’s policies.” Cumulus, 2026 WL 63294, at *16. While Cumulus
demonstrated that it was likely to suffer irreparable harms in a matter
of months, Nielsen musters only generalized concerns about its
operations disconnected from any loss of business or irreparable
financial strain. Even if Nielsen’s “arguments evince plausible
disagreement with the district court’s balancing of the hardships,”
“the balance reached by the district court falls squarely within its

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discretion.” State Farm Mut. Auto. Ins. Co. v. Tri-Borough NY Med. Prac.
P.C., 120 F.4th 59, 85 (2d Cir. 2024).
Second, the district court did not err in concluding that the
public interest is served by preliminary enforcement of the antitrust
laws. See Cumulus, 2026 WL 63294, at *16. We regularly hold that the
public benefits from preliminarily enjoining conduct found likely to
be anticompetitive. See, e.g., Schneiderman, 787 F.3d at 662 (collecting
cases). Nielsen’s arguments to the contrary assume that its conduct is
not anticompetitive; Nielsen does not dispute that enforcing the
antitrust laws serves the public. And Nielsen’s backup argument,
that its other customers will be required to pay higher prices for
Nationwide else Nielsen risks setting the presumptively reasonable
price too low, is entirely speculative and unsupported by any record
evidence. Whatever influence the preliminary injunction has on
Nielsen’s other contract negotiations is hypothetical, unquantified,
and outweighed by the public’s interest in the maintenance of a
competitive market for local ratings data.
We hold that the district court did not abuse its discretion in
concluding that Cumulus satisfied the requirements to obtain a
mandatory preliminary injunction.
III. Propriety of the Preliminary Injunction
Finally, Nielsen takes issue with the design of the district
court’s injunction. We review this challenge de novo. See Garcia v.
Yonkers Sch. Dist., 561 F.3d 97, 103 (2d Cir. 2009). The injunction reads,
in relevant part:
The Court hereby ORDERS . . . that (i) Nielsen (including
Nielsen’s officers, employees, and agents) is enjoined

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and restrained from enforcing its Network Policy; and
(ii) Nielsen is enjoined and restrained from charging a
commercially unreasonable rate for its Nationwide
Report as a complete, standalone product. For purposes
of this Order, a rate that is equal to or lower than the
highest annual 2026 rate Nielsen charges any broadcaster
(whether network or local) for Nationwide is
presumptively reasonable.
Cumulus, 2026 WL 63294, at *18. Nielsen specifically disputes the
latter half of the order, which prohibits it from charging “a
commercially unreasonable rate” for standalone Nationwide. Id. It
claims that this prohibition is insufficient for two reasons: it both
violates the specificity requirement of Federal Rule of Civil Procedure
65(d) and fails to remedy Cumulus’s claimed irreparable harm. We
disagree with both challenges.
First, Rule 65(d). That Rule requires “[e]very order granting an
injunction” to “describe in reasonable detail . . . the act or acts
restrained or required.” Fed. R. Civ. P. 65(d)(1). We refer to this
mandate as the “specificity requirement.” Sanders v. Air Line Pilots
Ass’n, Int’l, 473 F.2d 244, 247 (2d Cir. 1972). “The normal standard of
specificity [under the Rule] is that the party enjoined must be able to
ascertain from the four corners of the order precisely what acts are
forbidden.” Id. Compliance with the specificity requirement is
particularly important because “basic fairness requires that those
enjoined receive explicit notice of precisely what conduct is
outlawed” before they risk incurring contempt. Schmidt v. Lessard, 414
U.S. 473, 476 (1974).
Nielsen argues that it lacks explicit notice of what constitutes

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an “unreasonable rate” for Nationwide. While we note that similar
“reasonable rate” injunctions have been upheld before, see, e.g., United
States v. Glaxo Grp. Ltd., 410 U.S. 52, 64 (1973), we need not decide
whether a prohibition on charging an “unreasonable” price may be
too ambiguous on its own, because we find that the district court’s
safe harbor provision lends this injunction sufficient clarity. The safe
harbor provision states that “a rate that is equal to or lower than the
highest annual 2026 rate Nielsen charges any broadcaster (whether
network or local) for Nationwide is presumptively reasonable.”
Cumulus, 2026 WL 63294, at *18. Nielsen can thus determine a
presumptively reasonable rate to charge Cumulus by surveying the
prices it charges other large network clients, either under current
contracts or based on contracts negotiated this year.9 While Nielsen
is concerned that it will not know its highest 2026 rate for Nationwide
until after the year is through, counsel for Cumulus noted at oral
argument that contracts for services in 2026 are typically negotiated
well in advance. Moreover, Nielsen failed to describe in its briefs or
at oral argument what a more specific version of the district court’s
injunction would look like. That inability to articulate a more precise
injunction further demonstrates that the district court’s remedy does
9 The record demonstrates that Cumulus is not Nielsen’s only large network
client for Nationwide. While Nielsen claims that “Cumulus is a
significantly larger customer than any other that purchases the standalone
Nationwide report,” Appellant’s Br. at 44, the district court found only that
Cumulus is one of “the three largest companies in radio,” Cumulus, 2026
WL 63294, at *4, and further found that at least one of those three large
companies (apart from Cumulus) also purchases Nationwide from Nielsen,
see id. at *6.

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fulfill the specificity requirement of Rule 65(d). Finally, we are not
persuaded by Nielsen’s argument that relief in this context cannot
regulate a product’s price, since “[t]o ensure . . . that relief is effectual,
otherwise permissible practices connected with the acts found to be
illegal must sometimes be enjoined.” Lowe’s, 371 U.S. at 53.
We conclude that the district court’s injunction does not violate
the specificity requirement of Rule 65(d). A district court need not
“describe all possible, permissible future” prices that Nielsen can
charge in order to satisfy that Rule; instead, a district court’s
injunction must merely “assist [Nielsen] in determining whether a
proposed” price is unreasonable. See S.C. Johnson & Son, Inc. v. Clorox
Co., 241 F.3d 232, 241 (2d Cir. 2001). The district court’s safe harbor
provision does just that.
Finally, we disagree with Nielsen that the district court’s
injunction will not remedy Cumulus’s claimed harms. In effect,
Nielsen argues that only a forced sale of Nationwide will certainly
alleviate the irreparable harm that flows from Cumulus’s impending
loss of access to that product. But Cumulus alleges precisely that the
Network Policy impeded its ability to properly negotiate and thereby
obtain that product. In the Sherman Act context, “the precise practices
found to have violated the Act should be specifically enjoined.”
United States v. Grinnell Corp., 384 U.S. 563, 579–80 (1966) (emphasis
added). Here, the district court’s injunction is tailored to the conduct
it found to be unlawful: Nielsen’s express and constructive
enforcement of its Network Policy. Prohibiting Nielsen from
engaging in “the precise practices found to have violated the Act” will
assuage the serious risk of Cumulus’s harm coming to pass by barring

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Nielsen from engaging in anticompetitive conduct during
negotiations. Id. We think the district court’s injunction is sufficiently
tailored to remedy Cumulus’s harm.
CONCLUSION
This interlocutory appeal raises a number of complicated and
novel issues. We resolve many of them not for all time, but on a
preliminary basis and with considerable deference to the district
court’s factual findings and discretionary decisions. Still, we hold as
a threshold matter that we may proceed with this appeal
notwithstanding Nielsen’s counterclaims against Cumulus below,
because Section 362(a)(1) of the Bankruptcy Code automatically stays
only discrete claims against debtors, rather than the entire actions in
which they are asserted. Further, we hold as a matter of law that
“constructive tying”—the pricing of two products that has the effect
of conditioning the sale of one product on the other—can in some
cases violate Section 2 of the Sherman Act. Finally, we reject Nielsen’s
several remaining charges of error, and we hold instead that the
district court properly (1) found that Cumulus was coerced based on
Nielsen’s constructive tie, (2) found anticompetitive effects of
Nielsen’s conduct, (3) discounted Nielsen’s procompetitive
justification, (4) concluded that Cumulus made a strong showing of
irreparable harm absent interim relief, (5) weighed the relative
hardships and public interest in Cumulus’s favor, and (6) issued an
appropriately specific and tailored preliminary injunction.
The December 30, 2025 order of the district court granting
Cumulus’s motion for a preliminary injunction is AFFIRMED. The
February 3, 2026 order of this court granting Nielsen’s motion for a

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stay is VACATED, and the case is REMANDED for further
proceedings consistent with this Opinion.

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